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

Public Document 



No. 18241 



^l]5 (!I^Jntm^m&Je^IItl| of A^S2i^lcl]usctts 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1997 




oiON OF THIS Document Approved by Philmore Anderson hi, State Purchasing Agent. 

JPRINT-lO/98-7000044 Estimated Cost Per Copy 5.00 

Printed on Recycled Paper 



State Library of Massachusetts 



r>A-.x^ I I 



_ —J. 



Commonwealth of Massachusetts 

In accordance with the provisions of Section 1 1 of Chapter 12 of the Massachusetts 
General Laws, I hereby submit the Annual Report for the Office of the Attorney General. This 
Annual Report Covers the period from July 1, 1996 to June 30, 1997. 



Respectfully Submitted 

Scott Harshbarger 
Attorney General 



Fiscal Year 1997 



OFFICE OF THE ATTORNEY GENERAL 

ATTORNEY GENERAL 
SCOTT HARSHBARGER 

FIRST ASSISTANT ATTORNEY GENERAL 
Thomas H. Green 

CHIEF OF STAFF 
William P. Lee 

Assistant Attorneys General ; 



Jonathan Abbott 
Ann Ackil 5 
Richard Allen 
Dorothy Anderson 
David Andrews 21 
Barbara Anthony 
Luz Arevalo 
Frederick Augenstem 
Lori Balboni 
Thomas Bamico 
Jason Barshak 
Christopher Barry-Smith 23 
Judith Beals 
Thomas Bean 
Annette Benedetto 2 
John Benzan 57 
Anne Berlin 61 
Edward Berlin 
Cynthia Berliner 75 
John Bigelow 
Crispin Bimbaum 
Edward Bohlen 
Barbara Boden 63 
John Bowen 
John Bowman 
Kevin Brekka 
Matthew Brock 1 7 
Douglas Brown 
William Brownsberger 



Brian E. Burke 66 
Brian P. Burke 
David Bums 
Eric Carriker 
James Caruso, Jr. 
R. Michael Cassidy 64 
Pamela Castrucci 
Eileen Cenci 10 
John Christin 1 5 
John Ciardi 
Peter Clark 
Jeffrey Clements 
Edward Colbert 
Richard Cole 
Joanna Connolly 
Scott Cooper 50 
Patricia Correa 26 
Pierce Cray 
John Crimmins 1 8 
Michael Cullen 
Maurice Curmingham 
William Daggett 
Michael Dash 13 
Leslie Davies 
Ed DeAngelo 
George Dean 
Linda DelCastilho 
Stephen Dick 
Michael Dingle 



Elizabeth DiTomassi 
J.LeibDodell 75 
William Duensing 
Henry Eaton 14 
Deborah Ecker 
Stanley Eichner 
F.Henry Ellis 14 
Judith Fabricant 56 
Barbara Fain 
Jeimifer Ferreira 
Freda Fishman 
Francis Flaherty, Jr. 
Elizabeth Arm Foley 54 
Mary Freeley 
Cynthia Gagne 
Rosemary Gale 
Rosalyn Garbose 
Suzaime Glick Gilfix 
Gregory Gilman 3 
Salvatore Giorlandino 
I. Andrew Goldberg 
Richard Gordon 
Thomas Green 
Leslie Greer 
Mary Griffin 
John Grossman 
Irene Guild 
Daniel Hammond 
Charles Harak 



Nancy Harper 
Sarah Hartry 
Katherine Hatch 
EHzabethHart 54 
Bennet Heart 62 
Michael Hering 
PhiHp Holmes 
Audrey Huang 
Amy Hudspeth 69 
Pamela Hunt 
Marsha Hunter 
Carol lancu 30 
Marcia Jackson 
Patrick Johnston 22 
Diane Juliar 
Michelle Kaczynski 
Judy Zeprun Kalman 
Susan Kang 
Glenn Kaplan 
Jamie Katz 12 
Sean Kealy 
Margaret Kelley 
Stephanie Kelly 
Carolyn Keshian 
Rosa Kim 
Michael Kogut 3 
Pamela Kogut 
Karen Laufer 
Andrew Lawlor 
Ellyn Lazar 
Angela Lee 1 1 
Macy Lee 65 
William Lee 
Peter Leight 16 
Martin Levin 
Susarme Levsen 1 1 
Darlene Luccio Jordan 68 
Kara Lucciola 
Glenn MacKinlay 
Anita Maietta 
David Marks 
William Matlack 
Laura Maslow-Armand 
Gregory Massing 
William M. McAvoy* 



Thomas McCormick 
Karen McGuire 
Kristin Mcintosh 
Frances Mclntyre 23 
Gail McKenna 72 
Beth McLaughlin 
Paul McLaughlin 
William Meade 
Marianne Meacham 
Elizabeth Medvedow 
Joyce Meiklejohn 
Pamela Meister 6 
Ramon Melendez 24 
Howard Meshnick 
Nicholas Messuri 
Holley Meyer 58 
James Milkey 
Daniel Mitchell 
Helen Moreschi 
Christopher Morog 55 
Madelyn Morris 70 
Susan Motika61 
Mark Muldoon 
Linda Murphy 
Mary Murphy-Hensley 
Kevin Nasca 
Cathryn Neaves 23 
Paula Fox Niziak 60 
Jean O'Brien 
Michelle O'Brien 
Thomas O'Brien 
Erin Olson 23 
Dorma Palermino 
Kathryn Palmer 4 
William Pardee 
Margaret Parks 
Stephen Patemiti 
Robert Patten 74 
Anthony Penski 
Djuna Perkins 71 
Judith Phillips 11 
Mary Phillips 
Barbara Piselli 25 
William Porter 
Anne Powers 



Frank Pozniak 
Patricia Preziosa 
Candies Pruitt 7 
Robert Quinan 8 
Elizabeth Reinhardt 
Shelley Richmond 
Benjamin Robbins 
Beverly Roby 
Anthony Rodriguez 
Joseph Rogers 
Deirdre Rosenberg 
Stuart Rossman 
Peter Sacks 
E. Selena Samm 
Ernest Sarason, Jr. 
Pasqua Scibelli 
Arlie Scott 
Sharon Scott 
Amy Sharff 9 
Neil Sherring 1 
Robert Sikellis 
Jeremy Silverfme 
Joanne Smith 
Loretta Smith 
Mark Smith 
Johanna Soris 
Leo Sorokin 
Amy Spector 
Richard Spicer 19 
Susan Spurlock 
Carol Starkey 
James Stetson 
Deborah Steenland 
Walter Sullivan 59 
Mark Sutliff 
James Sweeney 
Diane Szafarowicz 
Pamela Talbot 
Rosemary Tarantino 
Neil Tassel 
Shelly Taylor 
Jane Tewksbury 
Steven Thomas 
Jean Thompson 5 1 
Bruce Trager 



Thomas Ulfelder 20 
Margaret Van Deusen 
Brett Vottero 14 
Gina Walcott 
Lucy Wall 
Beverly Ward 52 
George Weber 
Mark Weber 
Joseph Whalen, III 
James Whitcomb 
Douglas Wilkins 
H. Gregory Williams 7 
Jane Willoughby 
Howard Wise 
John Woodruff 
Chi Chi Wu 
Edward Wu 73 
NorahWylie 53 
Judith Yogman 
Catherine Ziehl 
Michael Zullas 

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

William Berman 

Stacey Bloom 67 

David Breen 

Heidi Handler 28 

Joshua Krell 

Timothy McDonough 27 

Philip McGovem 

Vanessa Sanchez-Gasparro 29 

Marie St. Fleur 



APPOINTMENT DATE TERMINATION DATE 



1. 


07/01/96 


2. 


07/02/96 


3. 


07/08/96 


4. 


07/29/96 


5. 


08/01/96 


6. 


08/12/96 


7. 


08/19/96 


8. 


08/30/96 


9. 


09/04/96 


10. 


09/09/96 


11. 


09/16/96 


12. 


09/17/96 


13. 


09/18/96 


14. 


09/23/96 


15. 


10/01/96 


16. 


10/21/96 


17. 


10/24/96 


18. 


11/01/96 


19. 


11/05/96 


20. 


12/01/96 


21. 


12/24/96 


22. 


01/01/97 


23. 


01/06/97 


24. 


01/28/97 


25. 


02/18/97 


26. 


04/28/97 


27. 


04/30/97 


28. 


05/05/97 


29. 


05/12/97 


30. 


06/23/97 



50. 


07/11/96 


51. 


07/15/96 


52. 


07/26/96 


53. 


08/13/96 


54. 


08/16/96 


55. 


08/23/96 


56. 


08/27/96 


57. 


09/02/96 


58. 


09/09/96 


59. 


09/13/96 


60. 


09/20/96 


61. 


10/18/96 


62. 


11/08/96 


63. 


1 1/22/96 


64. 


1 1/29/96 


65. 


12/06/96 


66. 


12/31/96 


67. 


02/28/97 


68. 


03/03/97 


69. 


04/04/97 


70. 


04/12/97 


71. 


05/02/97 


72. 


05/11/97 


73. 


05/20/97 


74. 


05/23/97 


75. 


06/06/97 



Appointed since December 1 992 



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8 



BUSINESS AND LABOR PROTECTION BUREAU 

Fiscal Year 1997 was the third year of operation by the Business and Labor Protection 
Bureau since its creation in April, 1995. The Bureau consists of the Unemployment Fraud 
Division (formerly known as the Division of Employment and Training), the Fair Labor & 
Business Practices Division, the Insurance Fraud Division and the Medicaid Fraud Control Unit. 
The benefits of combining these four divisions as part of a separate, yet coordinated. Bureau 
continued to grow as an expanding synergy developed between the divisions. 

Sharing common goals of eliminating fraudulent activities in the marketplace and 
establishing a level playing field in the economic sector for businesses and individuals alike 
resulted in better efficiency and productivity by each division. By tapping into the legal and 
investigative resources available from all of it divisions, each of which are experienced in the 
areas of fraud prosecution, the Bureau was able to maximize its overall impact and effectiveness 
in combating the "fraud tax" which unfairly increases the costs and expenses of honest 
businesses, insurance policy holders and tax payers in Massachusetts. 

The Bureau maintains its own in-house educational and training programs to supplement 
officewide efforts with sessions and materials specifically geared to the types of cases assigned to 
its four divisions. A Legal Counsel and a Chief Prosecutor assist the Bureau Chief in adopting 
and implementing consistent legal policies and procedures throughout the Bureau. 

The number of inter-divisional investigations and prosecutions increased substantially, 
highlighted, among others, by cases such as Anchor Tank Services (unemployment tax fraud, 
prevailing wage and nonpayment of wage); O'Brien Excavating (prevailing wage and workers 
compensation premium fraud); E & L Masonry Corp. (prevailing wage and workers 
compensation premium fraud); Clans Cleaning (nonpayment of wages, workers compensation 
premium fraud and unemployment tax fraud); Great Hyannis Tee Company (nonpayment of 
wages, prevailing wage and unemployment tax fraud); Nascho Forms (prevailing wage and 
unemployment tax fraud); and the Lincoln School (prevailing wage, unemployment tax and 
workers compensation premium fraud) featured in the following pages. 

The Bureau maintains its primary offices at 200 Portland Street, Boston and 165 Liberty 
Street in Springfield. 



UNEMPLOYMENT FRAUD DIVISION 

The Unemployment Fraud Division ("UFD") is comprised of eleven staff members: a 
chief, managing attorney, four assistant attorneys general, two investigators, an office manager, 
an administrative assistant and an intern. Pursuant to its authority under Massachusetts General 
Laws chapter 151 A, Section 42 A, the Division enforces the provisions of the Massachusetts 
Employment Security Law. Actions involving employer tax fraud and larceny of unemployment 
benefits are prosecuted in the District and Superior Courts. 

The Division receives its referrals primarily from the Division of Employment and 
Training ("DET"). Quarterly meetings are held between the management staff at DET and the 
Unemployment Fraud Division. The ongoing rapport between DET and UFD remains a key 
ingredient to UFD's success. 

UFD also generates its own independent actions. Through the utilization of resources in 
other divisions in the Business and Labor Protection Bureau, UFD targets complex and 
sophisticated schemes involving various combinations of employment security fraud, prevailing 
wage, and workers' compensation violations. This interdisciplinary effort has been instrumental 
in UFD's investigation and successful prosecution of egregious violators. 

During fiscal year 1997, staff at UFD addressed 832 cases in District courts throughout 
the Commonwealth and recovered $2,124,019.20 in restitution owed to DET. This reflects an 
increase of $1,169,177.20 over the amount collected in fiscal year 1996. 

HIGHLIGHTED EFFORTS 

& 

SIGNIFICANT ACTIVITIES 

I. EMPLOYMENT SECURITY FRAUD ; 

L Commonwealth v. Arthur and Eleanor Gagnon . Boston Municipal Court 

Arthur and Eleanor Gagnon failed to pay unemployment contributions totaling 
$38,849 for their company. Reliable Employment Services, Inc. The defendants filed 
a motion to dismiss challenging the constitutionality of the Unemployment Fraud 
statute. The motion was denied. Subsequently, the defendants admitted to sufficient 
facts and the matter was continued without a finding for three years. They were also 
ordered to pay $38,000.00 in restitution. 



Commonwealth v. Susan O'Donnell . 

Commonwealth v. Paul Lupo . Brockton Superior Court 



10 



Susan O'Donnell, a former employee of the Division of Employment and 
Training, was indicted on seven counts of a continuous scheme of Grand Larceny, 
two counts of forgery, five counts of uttering, and one count of conspiracy. Paul 
Lupo, of Franklin, was indicted on four counts of grand larceny and one count of 
conspiracy. 

They were both arraigned in Brockton Superior Court on April 24, 1997 on 
charges of stealing over $60,000.00 in state unemployment benefit checks. On June 
30, 1997 both defendants were found guilty and sentenced to five years probation, 
ordered to pay $61,417.00 in restitution, and perform 500 hours of community 
service each. 

3. Commonwealth v. Thomas Brennan . Wobum District Court 

Thomas Brerman plead guilty in Wobum District Court to 33 counts of 
unemployment fraud for collecting unemployment benefits from May of 1 992 
through February, 1993, while at the same time working for Merrimack Valley 
Recovery Services. 

Mr. Brennan was sentenced to one year in the House of Correction, suspended 
for three years, and was ordered to pay $8,834.00 restitution to the DET. 

4. Commonwealth v. Barbara Kalen, Lynn District Court 

On August 2, 1996, Barbara Kalen of Salem pled guilty to 37 counts of 
unemployment fraud in Lynn District Court. She admitted to collecting $10,000.00 
in unemployment benefits despite holding two jobs as a Registered Nurse. Kalen 
was sentenced to one year in the House of Correction, suspended for two years, and 
was also ordered to pay full restitution to DET. 



5. Commonwealth v. Keith Thornton . Boston Municipal Court 

On July 26, 1 996 Keith Thornton was found guilty of fraudulently collecting 
$2,653.00 of unemployment benefits while working at Wendy's. He was sentenced 
to 15 months in the House of Correction to run concurrently with a 6-10 year 
sentence that he is currently serving at MCI-Cedar Junction. 



6. Commonwealth v. Lane Foreman . Salem District Court 

Foreman, a local Disc Jockey, admitted to fraudulently collecting $6,432.00 in 
unemployment benefits while working. Despite an objection by the Commonwealth, 



11 



the Court continued the matter without a finding for two years and ordered that 
restitution be paid to the DET. 



7. Lincoln Elementary School Construction Brookline 

Thirty-four indictments were returned by a Suffolk County Grand Jury against 
five companies and seven corporate officers involved in the construction of the 
Lincoln Elementary School in Brookline between 1992 and 1994. The indictments 
allege fraud in a number of areas including unemployment tax, workers 
compensation, and failure to furnish accurate payroll records. The companies 
indicted were Quinn Construction Co., of Brockton, Jeffrey Construction Inc., in 
Wellesley, H. M. Horton Co., of Walpole, Davidson Form Construction Corp., of 
Rowley, and LaFazia Concrete Floors and Pumping, Co., of Cranston, Rhode 
Island. 

IL SPECIAL PROJECTS 



A. DEFAULT SWEEP : 



With assistance provided by the State Police Unit attached to the Office of the 
Attorney General, ten defendants with active felony larceny charges were targeted for 
arrest. UFD secured the presence of four defendants before the Court. 



B. CASE EVALUATIONS : 

Each of UFD's 1311 cases in inventory was reviewed and evaluated by the 
staff Cases have either moved forward in the criminal process or are being returned 
to DET pursuant to the Memorandum of Understanding between DET and UFD. 
UFD currently has 888 cases in inventory. 



III. DIVISION STATISTICAL SUMMARY : 
COURT APPEARANCES 



12 



Disposed 



July, 1996 


24 


67 


August 


25 


50 


September 


25 


49 


October 


63 


114 


November 


16 


60 


December 


19 


62 


January, 1997 


83 


121 


February 


9 


35 


March 


133 


155 


April 


11 


43 


May 


10 


31 


June, 1997 


^ 


A5 


Totals 


m 


m 



MONIES COLLECTED 

July, 1996 $ 73,509.62 



August 


209,416.06 


September 


67,480.40 


October 


102,035.75 


November 


116,674.04 


December 


156,031.75 


January, 1997 


153,910.91 


February 


154,543.25 


March 


82,235.31 


April 


121,492.18 


May 


152,287.90 


June, 1997 


127,402.32 


Total 


$2,124,019.20 



CASES PENDING AS OF JUNE 30. 1997 

Criminal Employee Claims 386 

Criminal Employer 457 

Other* 45 
Total Pending Cases M| 



13 



* Includes employer tax and/or employee fraudulent claims cases independently developed 
and/or specially referred. 



CASES ON DEFAULT AS OF JUNE 30. 1996 ; 



Criminal Employees Claims 193 
Criminal Employer US 

Total Defaults 331 



CASES CLOSED AND RETURNED TO PET ; 

Criminal Employee Claims 395 

Criminal Employer 130 

Other* _4 

Totals 529 



COMPLAINTS ISSUED : 



Criminal Employee Claims 
Criminal Employer 
other 
Totals 



42 (1068 counts) 
29 (328 counts) 
J_ ( 4 counts) 
22 (1400 counts) 



INDICTMENTS RETURNED : 



Total 



54 



FAIR LABOR & BUSINESS PRACTICES DIVISION 
(FLBP) 

The Fair Labor & Business Practices Division ("FLBP") is charged with the responsibility 
of enforcing the state's labor standards and applicable safety laws, child labor laws, and resolving 
public bid disputes. It does so in the criminal forum and, in some circumstances, in civil forums 
and office conferences. 

FLBP ADVISORY COMMITTEE 



14 



The FLBP Advisory Committee was reconstittited to include a more diverse representation. 
Broad based representation included participants from the business, labor, employee, educational, 
legal, religious, family, and government communities. The Committee was divided into five 
separate subcommitties for greater effectiveness. The Advisory subcommittees are: Public 
Bidding, Child Labor, Prevailing Wage, Safety and Wage and Hour. Over 1 50 individuals 
attended the opening session of the Advisory Commitee in November, 1996. 

The Bid Unit Committee addressed the issues of availability of bid protest decisions and 
the issue of restricted filed sub-bid questions. The Committee's work resulted in a process 
whereby all bid decisions are now available to the public in the Attorney General's Library and 
decisions are also sent to various trade and construction organizations. In addition, general 
contracting and subcontracting groups are working with this Office to develop a policy in order 
to resolve the issues concerning restricted filed sub-bids. 

The Child Labor Committee addressed issues of education and outreach and hazardous 
occupations for minors. The Committee's response led to four public hearings across the state 
to update the classificafion of hazardous occupations. 

The Prevailing Wage Committee addressed the issues of Awarding Authorities failing to 
include wage sheets in public contracts, and the failure of Awarding Authorities to require the 
submission of payroll records for review. The Committee endorsed FLBP's Central Register 
iniUative to provide information concerning prevailing wage compliance to Awarding 
Authorities and public contractors through the mailing of letters and brochures to each public 
project filer at the Central Register. It represents a hefty effort at curtailing the problem. 

The Safety Committee addressed issues of prevention of injuries and interaction among 
regulatory agencies that respond to workplace fatalities. A compilation of names and 
responsibilities of each responding agency was prepared. 

The Wage and Hour Committee addressed various wage enforcement policy questions 
including the use of the private right of action remedy and whether to regulate at home data entry 
as Industrial Homework. 

Each Advisory Subcommittee shall continue to meet and the Advisory Committee will 
convene a fiill meeting in the fall of 1998. 

PUBLIC INTAKE UNIT 

The Division's Intake Unit services the FLBP "hot line" and maintains the case files for the 
Division. 

The statistical report for the fiscal year demonstrates that the Division has received and 
processed 4,505 new complaints and disposed of 5,035 cases. 

The Intake Unit also has a staff dedicated to a hot line number to assist constituent and 



15 



other callers with questions related to labor standards. The daily number of calls approximates 
450. A substantial effort is expended by the Division in wage loss replacement work 

which is conducted by the legal and inspectional staff; and processed by the intake staff. 
Total amount recovered for complainants by the Division 

for FY97: $2,124,531.00 

Total amount recovered for complainants by the Division 
since creation of Division in October, 1993: 
$7,624,634.00 

FINANCIAL INVESTIGATIONS & AUDITS 

The Division's Financial Investigators conduct audits and investigations which include 
non-payment of wages, non-payment of overtime pay and prevailing wage violations. During 
fiscal year 1997, they have processed a total number of one hundred thirty -three cases, they have 
made a total of ninety site visits to various entities throughout the Commonwealth. They have 
conducted a total of ninety-five audits in the enforcement areas of prevailing wage, non-payment 
of wages, and overtime violations. Of the one hundred thirty three cases processed, they have 
closed a total of ninety seven cases, and are in the process of preparing computations and /or 
gathering financial records for audit on the remaining cases. The Investigators have collected 
and forwarded to budget for dispersement a total of $347,592.70 in gross payroll monies due 
employees as a result of their audits. Additionally, they have identified through audits a total of 
$555,397.33 in wages due employees. 

These Financial Investigators are often called upon to assist other BLPB divisions and 
other OAG persormel. 

LEGISLATION 

The Division continues to propose legislation to support efficiency and reasonableness in 
carrying out its responsibilities. In addition to various pieces of general remedial legislation, the 
Division has proposed legislation to accommodate jurisdictional challenges. The Division has 
also initiated regulatory changes in areas in which the Division has regulatory authority. 
Substantive legislation includes the Child Labor bill, discussed elsewhere in this report; 
legislation to extend whistle blower protection to the private sector; legislation to significantly 
increase the penalties for organizations convicted of assault and battery and manslaughter; and 
legislation to provide a civil alternative to the criminal enforcement of the Commonwealth's 
wage and hour laws. 

The belief of the Division is that an extension of protection from retaliation to workers in 
the private sector who report dangerous work places will go a long way toward the elimination of 
many unhealthful situations confronting the Commonwealth's labor force. Increasing penalties 
for common law criminal negligence offenses against corporations will also serve as a deterrent 
to dangerous or unhealthy conditions in the work place. 



16 



The Division views the civil citation process as a means to fairly, effectively, and 
efficiently deal with a significant number of complaints in the areas of prevailing wage, non- 
payment of wages, minimum wage and overtime: allowing the Division to leave only the most 
egregious violations for prosecution in the criminal court system. 

BID UNIT 

The Attorney General, pursuant to G.L. c. 149, § 44H, is charged with the enforcement of 
the public bidding laws (Le,, G.L. c. 7, § 38C-38N, c. 30, § 39M, and c. 149, §§ 44A-44J). The 
Attorney General's main enforcement efforts are undertaken by its Bid Unit and include: (I) the 
receipt and resolution of filed bid protests, and (ii) the education of public contract participants 
with respect to the applicable bidding laws. 

Fiscal Year 1997 saw an increase in the number of bid protests received and resolved by 
the Division. While such an increase may be attributed to a number of factors, including the 
overall increase in public construction projects, it also reflects the construction industry's 
increasing confidence in the Attorney General's ability to resolve public bidding disputes. The 
Attorney General's Office serves to provide a fair and accessible forum for the resolution of bid 
protests and, with the participation and assistance of public contracting authorities, the process 
can quickly and competently determine the merits of a bid protest. As a result, in many cases, the 
Attorney General's involvement facilitates the efficient completion of public works projects. 
During Fiscal Year 1997 the Division considered bid protests on public projects ranging in cost 
from $1 1,000.00 to over $20 million. 

The education of public contracting participants (i.e., contractors, public contracting 
authorities, municipal counsel) is the other major thrust of the Division's enforcement efforts 
with respect to the public bidding laws. The Bid Unit's educational initiative has included: (I) the 
receipt of, and response to, telephone calls and all correspondence requesting information 
concerning the bidding laws; (ii) the presentation of industry seminars throughout the 
Commonwealth; and (iii) the compilation and dissemination of the Division's bid protest 
decisions. 

During Fiscal Year 1997 over 4,600 telephone calls concerning public contracting were 
received and answered by the Division. The amount of phone calls received and answered is an 
increase from last year and reflects the industry's acceptance and utilization of the Attorney 
General's Office as a source for procurement information. By providing telephone support, the 
Division has become an important informational resource to contractors, architects and awarding 
authorities. The information provided may also prevent subsequent noncompliance with the 
bidding laws or potential bidding protests. 

By the same token, the seminars sponsored by the Division provide the substantive and 
procedural information necessary to solicit bids or submit bids in the public contracting arena. 
As such, the Division presented seminars to architectural groups, contracting groups and 
municipal counsel. In addition, the Bid Unit also participates in industry seminars. 



17 



The bid protest decisions of the Division also serve an educational function, because the 
decisions analyze the bidding laws with respect to the specific fact patterns presented by the 
protested project. To assist those interested in researching the Office's existing bid protest 
decisions, efforts were undertaken during Fiscal 1997 to increase the accessibility of bid protest 
decisions. The decisions are now available at the Attorney General Library, and all decisions are 
now issued to designated trade and industry groups for dissemination to their members. The bid 
protest decisions have become an important industry reference to determine Office precedent and 
policy of the public bidding laws. 

The Public Bid Advisory Subcommittee, addressed elsewhere in this report, was well 
received and generated useful recommendations. 

WAIVERS 

The Fair Labor and Business Practices Division is charged with reviewing requests to 
waive certain requirements of the labor laws under circumstances which warrant it. Some 
measure of investigation is required before a waiver is granted. 

The Division granted waivers during the fiscal year as follows: 



Type of Waiver 


Amount 


7-Day Continuous Operations 


81 


Meal Break Exemptions 


63 


Seasonal Overtime Exemptions 


23 


Theatrical Performances - Minors 


14 



Minors - Working Late Hours 2 

Sheltered Workshops 6 

Public Works Projects/Extended Hours 1 

3-Hours Daily Minimum Rule 10 

Special Student Worker License 98 

TOTAL WAIVERS GRANTED: 298 
TOTAL AMOUNT COLLECTED: $24,400.00 
CHILD LABOR 



18 



Child Labor Site Inspections Conducted 1 75 
Child Labor Violations Cited 367 

Child Labor Task Force 

A Task Force was convened to update the Commonwealth's Child Labor Laws. The Task 
Force comprised of representatives of labor, business, education and public agencies. The two 
main areas of discussion were the number of hours minors are allowed to work and the process of 
obtaining employment permits. The Task Force's recommendations were set forth in an 
Executive Report issued in the spring of 1997 and incorporated into a proposal that was 
submitted to the Legislature by the Attorney General's Office in December 1996. The Joint 
Committee on Commerce and Labor heard public testimony in May, 1 997. 

Child Labor Advisory Sub-committee 

The Child Labor Subcommittee met twice in the FY 1997. The agenda included: 
a) education and outreach, and b) public hearings to solicit input on updating the list of 
hazardous occupations for minors. The Child Labor Laws permit the Division to determine that 
certain occupations are hazardous following a hearing. Public hearings were held in Fall River, 
Springfield, Lowell, and Boston throughout April and May of 1997. Approximately 50 
responses were received. 



INDUSTRIAL HOMEWORK 

Pursuant to M.G.L. Ch. 149, Sec. 147E, the Division undertook to promulgate a set of 
Industrial Homework Regulations that supersede any existing Industrial Homework Regulations. 
The proposed regulations set forth the requirements imposed upon employers of those engaged in 
the manufacture of work at home or work upon materials or articles for an employer, exclusive of 
the domestic service. The regulations require that not less than minimum wage be paid to 
industrial homeworkers; require the payment of time and one-half the regular hourly rate of pay 
for industrial homeworkers for all time worked over forty hours in one week; mandate 
appropriate written tracking of piece work compensation for work performed by industrial 
homeworkers; propose annual permitting and certification processes, and require a minimum 
record keeping procedure to be followed by all employers of industrial homework. 

The following statistics reflect the activity for permits and certificates issued for this Fiscal 
Year. 

Certificates 238 

Permits 12 

Monies Collected $8,250.00 

The FLBP Advisory Committee's subdivision for Wage and Hour issues addressed the 
issue of regulating at home data entry work. The matter is under review. 



19 



WORKPLACE SAFETY 

The safety program investigated the following in FY97: 
Injuries - Temporary Agencies 29 

Injuries - Service Industries/Child Labor 68 

Injuries - Construction 12 

Fatalities 04 

Safety Advisory Sub-committee 

The Safety Subcommittee members met for their second meeting in January, 1997. The agenda 
included a discussion of the interaction among regulatory agencies for workplace safety and 
health, and intervention strategies for reducing injuries. 

Workplace Violence Task Force 

An inter-divisional task force addressing workplace violence was established to produce 
increased public awareness of the hazards of violence at work. The initial project for the Task 
Force was the preparation of an informational brochure for employers and employees concerning 
rights and responsibilities with regard to workplace violence is being distributed by the Office. 



REGIONAL OFFICES 

In a continued attempt to service the workers and employers of the entire Commonwealth, 
the Division has three satellite offices. In addition to the Boston and Springfield regional 
locations, the Division maintains satellite offices in Pittsfield, Worcester, and Fall River on a 
part time basis. 

SPRINGFIELD OFFICE 

The Springfield Office services Western Massachusetts. 

Total Number of Complaints Received: 1 ,07 1 



Cases Closed 


1,018 


Total Monies Collected 


$377,944.69 


Preconstruction Conferences 


14 


Child Labor Site Visits 


51 


Overtime Site Visits 


18 


Fair Labor Complaints 


39 



Prevailing Rate Site Visits 140 



20 



Safety Inspections 47 

Accident Investigations 12 

Bid Law Complaints 6 

Court Appearances 28 



PTTTSFIELD OFFICE 

The Pittsfield Office serves the Berkshire County community. 

Walk Ins Referred 171 

Walk In Complaints 230 

Complaint Forms Mailed 72 

Complaint Forms Received 113 

Phone Calls 535 

Amounts Received: 

Prevailing Rate Wages $1 5,572.43 

Non-payment of Wages $68,444.97 

WORCESTER OFFICE 

The Worcester office services the Central Massachusetts region. 

Informational telephone calls 1 536 

Walk In 60 

Complaint Forms mailed out 166 

FALL RIVER OFFICE 

Our Fall River office services the Southeastern region. 

Walk-in Complainants 238 

Complaint Forms Received or mailed 102 

Telephone Calls 1003 



SIGNIFICANT CASES 



Tog Mold Tool & Die - Vacation pay was owed to 14 former employees of a tool 
and die operation that went out of business. The case was continued without a 
finding for five months and the defendant paid a total of $14,628.65 to the 



21 



victims. 

JAG Landscaping - Wages were owed to three employees. The defendant pled 
guilty to all charges, he received a total of 90 days, which was suspended for six 
months, and was ordered to pay restitution totaling $2,915.00 and fines totaling 
$1,875.00. 

Anchor Tank Services/ Anchor Tank & Drilling - Defendants were debarred from 
public works for six months for failure to pay the prevailing wage rate, 
nonpayment of wages, and failure to register with DET. Defendants were ordered 
to pay $7,336.00 in restitution and a $2,500.00 fine. 

E & L Masonry Corporation - Louis Maiani - Ettore Bonfini - Defendant 
Corporation pled guilty to failure to pay prevailing wages, failure to provide true 
and accurate payroll records, and failure to provide workers" compensation. The 
corporation, its president, and the agency of the president were debarred from 
public works for six months. All three were held responsible for the full 
restitution of $4,500.00, and were assessed a $500.00 fine for the prevailing wage 
violations and a $1,500.00 fine for the workers' compensation violation. Both 
individual defendants were placed on probation. 

Control Building Series. Inc. - New Jersey corporation admitted not having paid 
wages to five employees, agreed to pay full restitution in the amount of $2,007.75 
and a $3,000.00 fine. The company also agreed to provide complete payroll 
records for the months of April, May, and June of 1997 to ensure fiiture 
compliance. The charges were continued for six months. 

Mary J. Smith - Defendant ordered to pay wages owed to the claimants. 
Defendant paid a total of $1 1,400.00 which represents partial payment. Case was 
put on file for six months to verify payment and for defendant to provide further 
proof of her financial situation. 

Clans Cleaning Corporation - The defendant pled guilty to charges of failure to 
pay wages, failure to keep true and accurate payroll records, and failure to obtain 
workers' compensation insurance. The company was ordered to pay full 
restitution to the employees of $3,400.00, $2,000.00 to the Department of 
Employment and Training, and a $1,000.00 fine. 

Vining Disposal Service. Inc. -Superior Court declaratory judgment decision 
interpreting Section 27F of Chapter 149 to include work performed by trash 
haulers. 

Waste Management of Massachusetts. Inc. -Superior Court declaratory judgment 
decision prohibiting the inclusion of vacation fund, uniforms, safety boot and 
personal time in the calculation of the prevailing wage rate. 



22 



Wayne Stone d/b/a Great Hyannis Tee Company - Non-payment of wages, failure 
to obtain workers' compensation and failure to pay unemployment tax 
contributions; continued without a finding for one year; ordered to pay fixll 
restitution of $2,200.00 and a $1,500.00 fine. 

Cur-Ron Environmental - Ronald Jackson/Curtis Blanks - Non-payment of 
wages, failure to provide pay stubs. The defendant was found guilty (15 counts). 
Two years probation, $1,000.00 in restitution. 

P & H Construction - Failure to pay the prevailing wage rate and failure to 
provide true and accurate payroll record. The defendant was found guilty, six 
month debarment, $30,000.00 in restitution. 

Cruwys Electrical Contractions - Stanley Cruvyys - Failure to pay the prevailing 
wage rate (4 counts), guilty, 6 month debarment for corporation and 6 month 
voluntary debarment for individual. Failure to provide true and accurate payroll 
records. 

B & M Concrete Construction - Failure to pay the prevailing wage rate (three 
counts)guilty all counts, six month debarment, $8,000.00 in restitution ordered. 

Nascho Forms - Thomas Nashawatv - Company was found guilty of failing to pay 
the prevailing wage rate; failing to provide true and accurate records; and 
unemployment ft-aud: six month debarment and one year probation. 

O'Brien Excavating - Company was found guilty of failing to pay the prevailing 
wage rate; failing to provide true & accurate payroll records; insurance premium 
avoidance; larceny: debarred for six month, $34,000.00 in restitution ordered. 

Just Grind It - Company pled guilty to six counts of failing to pay prevailing wage 
rates and one count of failing to provide records: debarred for six months. 
Company president, Mr. Bandano, admitted to sufficient facts to not paying the 
prevailing wage rate, non-payment of wages, and failure to provide true and 
accurate records: Continued without a finding until 6/16/97, $12,000.00 in 
restitution ordered. 

Carr Leather - Court action was initiated by Regulated Industries Division for 
unpaid medical insurance claims. Company paid $50,876.52 in wage restitution 
in addition to monies owed for insurance claims. 

Riverbend Concrete Company. Inc. - Karen Thomas - The company was found 
guilty of failing to pay the prevailing wage rate and failing to provide true and 
accurate payroll records: debarred for six months. The complaint against Karen 
Thomas was continued without a finding until October 5, 1999 and she was 
debarred for six months. 



23 



• A.J. Desjardins Roofing Company. Inc. - Failure to pay the prevailing wage rate: 
Continued without a finding for three years, $5,000.00 in court costs for company 
and $5,000.00 in court costs for president (total $10,000.00). 

• Perfection Auto Service - Non-payment of wages: Continued without a finding 
for one year: $500.00 in restitution, $35.00 in victim witness fees, and $125.00 in 
court costs. 

• Ajax Construction Co.. -Benjamin Watkins & Alphonse Morel - The corporation 
pled guilty to failing to pay the prevailing wage rate: debarred for six months. 
The two individual defendants were also debarred for six months and ordered to 
pay $9,476.24 in restitution and a $10,000.00 contribution to the SCORE 
program. 

• Fiore Construction Company. Inc./Iron Construction Company, Inc.. and Walter 
Fiore as President. R 133 Nashua Street, Leominster, MA 01453 - 

Has agreed to a voluntary debarment for a period of four months beginning 
January 1, 1997 through April 30, 1997. 

• Boston Computer Exchange . 210 South Street, Boston, MA 021 11 - debarred for 
a period of three years beginning August 27, 1996 through August 27, 1999. 

• Inacom . 1 08 1 Famum Drive, Omaha, NH 68 1 54 - debarred for a period of three 
years beginning August 27, 1 996 through August 27, 1 999. 

• Moniz Company. Inc. Joseph M.R. Moniz. President . 42 Avon Street, Taunton, 
MA 02780 - debarred for a period of six months beginning April 9, 1997 through 
October 9, 1997. 

DIVISION EDUCATIONALS 

Members of the staff have worked with a wide range of constituent group leaders to both 
initiate and participate in a variety of educational seminars and panels. These include trainings to 
the Mass. Building Trades, the Association of Building Contractors, Volunteer Lawyers Project; 
and presentations at construction industry, retail, municipal, legal, labor, and business 
conferences. Chief Moreschi has met with a full range of FLBP Division users across the state 
building and rebuilding vital relationships in order to receive and suggest helpful input. 



24 



INSURANCE FRAUD DIVISION 

The Insurance Fraud Division (IFD) currently includes ten Assistant Attorneys General, 
one Special Assistant Attorney General, a paralegal and two support staff. The Division also 
includes a District Court Unit that focuses on expediting investigations and prosecutions of fraud 
cases that are appropriate for charging in district court. John L. Ciardi is Chief of the Division. 
Michael Cullen, Jennifer Ferreira, David Marks, Brian Burke, Erin Olson and Jack Crimmins are 
AAGs in the Division. Steven Thomas supervises the District Court Unit, which also includes 
AAGs Sean Kealy, Joshua Krell and SAAG Darlene L. Jordan. Maria Blanciforte is the 
Division's paralegal. Sheila Rosselli and Kim Pittore provide support for the Division. 

The IFD investigates all types of insurance fraud allegations involving fraud against 
insurers and against public entities, such as the Commonwealth, municipalities and state or 
federal agencies. The IFD also works with other Divisions in the Attorney General's Business & 
Labor Protection Bureau to investigate and prosecute insurance fraud that adversely effects 
businesses or fair competition. The IFD's cases can vary widely, and have included: multi- 
million dollar premium fraud cases, major conspiracies by professionals or firms, conspiracies 
centered around auto repair businesses, false injury claims regarding staged motor vehicle 
accidents, inflated claims against homeowner's policies, and false billing for insured services. 



The IFD receives referrals from a number of sources. The largest source of referred cases is 
the Massachusetts Insurance Fraud Bureau (IFB). The IFD also receives referrals from the Public 
Employee Retirement Administration Commission (PERAC), the Governor's Auto Theft Strike 
Force (GATSF), the Department of Industrial Accidents (DIA), the Workers' Compensation 
Rating and Inspection Bureau (WCRIB), the National Insurance Crime Bureau (NICB), the 
Social Security Adminisfration (SSA) as well as cities and towns, private attorneys, judges and 
concerned citizens throughout the state. The IFD also generates cases internally. 

HIGHLIGHTED EFFORTS 

& 
SIGNIFICANT ACTIVITIES 

The IFD obtained charges in 54 new cases in FY97 and completed prosecutions in 61 
cases. Cases included charges of workers' compensation fraud, motor vehicle insurance fraud, 
premium avoidance, homeowner's insurance fraud, life insurance fraud, health insurance fraud, 
as well as larceny and fraud by insurance agents, claims adjusters and damage appraisers. New 
cases charged in FY97 include allegations that defendants obtained in excess of $1,068,088.54 in 
fraudulent insurance payments. Closed cases resulted in orders requiring restitution payments in 
excess of $958,778.45, and awards of fines and court costs of more than $95,700, amounting to 
total orders of more than $1,054,478.45. 



25 



WORKERS^ COMPENSATION FRAUD 

• Commonwealth v. McCarthy . Norfolk Superior Court 

Brian McCarthy, 26, of Randolph, was indicted on one count of larceny over 
$250.00, one count of insurance fraud, and one count of workers' compensation 
fraud. McCarthy was assaulted in November of 1 991 while working as a security 
guard for Straughter Associates. Gunshots were fired at him and his partner, but 
neither received serious injury. McCarthy filed for workers' compensation 
benefits as a result of the psychological toll which he alleged as a result of this 
incident. He subsequently settled the case for $15,000.00 plus medical expenses. 
However, McCarthy had been working as a security guard for another company 
during the period in which he was allegedly disabled from working. In March of 
this year, McCarthy, who had been in default in this case since November 1993, 
was located in Florida and arrested. He was brought back to Massachusetts, plead 
guilty to the Larceny over $250 count and was placed on three years' probation. 
He was ordered to pay $16,668 in restitution to the Liberty Mutual Insurance 
Company. The other counts were filed by the Court. 

• Commonwealth v. Hire . Dedham District Court 

Carson Hire allegedly was injured while unloading packages on February 23, 
1995 while in the employ of UPS. She claimed to have sustained a back injury 
while lifting a package. She received temporary total disability payments through 
August 15, 1995. During this period, however, Ms Hire was working at "Millis 
Ice Cream Bam &, Mini Golf. On March 3, 1997 Ms. Hire plead guilty to 
Workers Compensation fraud. Larceny Over $250 and Filing a False Insurance 
Claim. She was sentenced to 2 years probation and ordered to pay $9000 in 
resfitution to the insurance company along with a victim/witness fee of $50. 

• Commonwealth v. Employee Staffing of America. Inc. Suffolk Superior 
Court and Joseph Gall 

Employee Staffing of America, Inc. (also known as ESA) is foreign corporation 
located in Milford, Connecticut. From 1989 through June of 1992, ESA leased 
employees to several small businesses in Massachusetts. These small businesses 
paid workers' compensation premiums to ESA to provide coverage for these 
leased workers. However, from April 1, 1991 through August 22, 1992, ESA had 
obtained no workers' compensation coverage for these workers in accordance with 
the laws of Massachusetts. Joseph Gall, president of ESA, created fraudulent 
Certificates of Insurance to deceive these small businesses into believing that ESA 
had actually secured this insurance coverage. 

Additionally, from August of 1991 through June of 1992, ESA had a workers' 
compensation policy through the Assigned Risk Pool (ARP) which was serviced 
by American Policyholder's, Inc. of Wakefield. ESA procured this policy 
fraudulently by failing to disclose the correct number of leased employees which 
they had in Massachusetts. 



26 



The premium for ESA's policy with the Assigned Risk Pool was initially over 
$600,000. However, when ARP became aware of ESA's true circumstances, the 
premiums jumped to over 5 million dollars, of which amount ESA had only paid a 
fraction. ESA never paid the full premium and the policy was canceled. 

Joseph Gall, was charged with 1 1 counts of Larceny over $250, 25 counts of 
Forgery, 25 counts of Uttering a forged instrument, and one count of Failing to 
Provide workers' compensation coverage. ESA was charged with eleven counts 
of Larceny over $250, and one count of Failing to Provide workers' compensation 
coverage. On April 3, 1997, Judge Garsh, of the Suffolk Superior Court issued 
her findings following a four- week bench trial. The defendants were found guilty 
of Workers' Compensation premium fraud of approximately $4.2 million, Failure 
to Provide workers' compensation coverage. Forgery and Uttering. On April 17, 
1997 Joseph Gall was sentenced to nine to ten years in State Prison, with an 
additional four to five years suspended thereafter, and was ordered to pay $1,875 
in fines. ESA was ordered to pay $33,125. Gall and ESA must also pay $681,347 
in restitution. An appeal was filed by the defendants and is currently pending. 
These verdicts represent the largest workers' compensation case ever prosecuted 
in Massachusetts, as well as the first workers' compensation premium fraud case 
tried in Superior Court. 

• Commonwealth v Gerald Labonte . Springfield District Court 

Gerald Labonte was injured while working at Rocky's Hardware Store in 
Springfield, and began receiving workers' compensation benefits. Subsequently, 
he began working at a local video store while continuing to collect weekly total 
disability benefits. Mr. Labonte fraudulently collected more than $24,000 in 
benefits without disclosing his video store employment. He was charged with 
Workers' Compensation fraud and Larceny over $250. On March 13, 1997, he 
was found guilty on both counts by Judge Turcotte and sentenced to two years in 
the House of Correction, suspended for five years, and ordered to pay $15,000 in 
restitution to the American Hardware Insurance Company. 

MOTOR VEHICLE INSURANCE FRAUD 

• Commonwealth v Williams and Ward . Chelsea District Court 

In 1994 Quinton Williams and his sister, Mary Ward, were traveling in Virginia 
when their car broke down and caught fire. The defendants had the vehicle towed 
to a local Virginia garage and left it there to return to Massachusetts. Later, 
Williams reported to the Burlington Police Department, and subsequently, to 
Commercial Union Insurance Company, that the car had been stolen from the 
Burlington Mall. Commercial Union paid $10,650 in settlement of the claim. 
However in August, 1995, the Williams' vehicle was recovered by the Virginia 
State Police, who reported the matter to Commercial Union. Mr. Williams and 
Ms. Ward were both charged with one count of Motor Vehicle Insurance Fraud, 
Larceny, Conspiracy and Perjury. On March 11, 1997, they both plead guilty 



27 



before Judge Peter Agnes and were sentenced to three years of probation. In 
addition, they were ordered to pay $12,830 in restitution to the insurance 
company. 

Commonwealth v. Anthony J. Gonsalves . Bristol Superior Court 
On May 6, 1997, N4r. Gonsalves of New Bedford was sentenced by Judge Phillip 
Rivard-Rapoza to two and one-half years in the House of Correction after 
pleading guilty to nine counts of Larceny over $250, nine counts of Motor Vehicle 
Insurance Fraud, seven counts of Conspiracy, two counts of Attempted Larceny 
over $250 and two counts of Making False Statements to the Department of 
Public Welfare. Gonsalves was also sentenced to five years of probation to begin 
after his release and ordered to pay $25,000 in restitution. From March 1990 to 
October 1991, using aliases, false birth dates and false social security numbers, 
Gonsalves submitted nine separate fraudulent automobile accident claims to 
insurance companies. In each instance, he claimed to have injured his right 
shoulder and sought treatment from a different doctor. Because an earlier injury 
had left him with a slight shoulder deformity, he was able to convince doctors that 
he had actually been injured in the claimed accidents and that his supposed injury 
kept him from working. Mr. Gonsalves sought compensation for lost wages and 
submitted false documents to support his claims. Two of his nine claims were 
denied. On the seven remaining claims, insurance companies paid a total of 
approximately $49,000. 

In addition to the insurance fraud, Gonsalves also pled guilty to welfare fraud 
charges. During the time he committed insurance fraud under his various aliases, 
Gonsalves collected several thousand dollars more in welfare benefits and food 
stamps under his true name on the grounds that he was totally disabled due to a 
back injury. 



• Commonwealth v Nicholas K. Karellas . Middlesex Superior Court 

On January 2, 1997, Nicholas Karellas of Belmont plead guilty to charges 
stemming from his having fraudulently filed two false motor vehicle accident 
claims. Mr. Karellas received more than $6800 from two insurance companies by 
reporting the same damage to his car on three separate occasions. As a result of 
his plea to two counts each of Larceny over $250, motor Vehicle Insurance Fraud 
and Conspiracy, Judge Chemoff sentenced Mr. Karellas to two and one-half years 
in the House of Correction, six months to be served on an electronic bracelet, with 
the balance to be suspended for two years. He has also been ordered to pay 
restitution of $6800, fined $5000, and ordered to complete 50 hours of community 
service. 

• Commonwealth v Osmor Bello . West Roxbury District Court 

On April 3, 1994 Mr. Bello reported to the Boston Police and his insurance 
company, National Grange Insurance Company, that his Volkswagen van had 



28 



been stolen from his home in Roshndale. However, investigation revealed that 
Mr. Bello had actually shipped the van to Lagos, Nigeria nearly one month 
earlier. National Grange denied his claim based on this information. In January, 
1997, Mr. Bello plead guilty to Motor Vehicle Insurance Fraud, Attempted 
Larceny, Concealing a Motor Vehicle and Filing a False Police Report. Judge 
Sarah Singer sentenced Mr. Bello to one year in the Suffolk Coimty House of 
Correction and suspended the sentence for two years. Mr. Bello was also ordered 
to pay a $2500 fine and perform 100 hours of community service. 



OTHER INSURANCE FRAUD CASES 



Commonwealth v Ellis and Ellis. Worcester Superior Court 
In March 18, 1997 a Worcester County Special Grand Jury returned a total of 82 
indictments against the Ellis brothers James, Jr., and Nicholas, together with 
former clients Harry Markarian, James Economou, Ronald D'Auteuil, Federico 
Williamson and David Formoso, a/k/a Denis Milan. A sixth Ellis 8c Ellis client, 
Frank G. Harwood, Jr,. was indicted and plead not guilty in early March to 
charges of insurance fraud and larceny over $250. Mr. Harwood's case is 
pending. 

The indictments allege that the Ellis brothers, whose firm has more than 40 offices 
throughout the state, reaped more than $70,000 in fees by overseeing sophisticated 
insurance fraud schemes that resulted in more than $300,000 worth of insurance 
payments to clients Markarian, Economou, D' Ateuil, Formoso, Williamson and 
Harwood alone. Markarian, Economou and D'Ateuil were workers' 
compensation clients of James N. Ellis, Jr., who were employed by the firm at the 
same time they were collecting total disability payments from various insurers. 
Their employment at the firm was either partially or totally concealed from the 
insurance companies in an alleged effort to inflate their workers' compensation 
claims. In the cases of Formoso and Williamson, attorneys Ellis and Ellis 
allegedly pursued simultaneous, overlapping injury claims that they knew to be 
fraudulent, and that included the use of aliases and false social security numbers. 
Harwood allegedly used forged documents to make it appear that he was working 
several jobs at the time of his injury, which made him eligible for higher benefits. 
These schemes allegedly resulted in more than $380,000 in benefits and legal fees. 

Commonwealth v Sbordone. Dessin. Jerome. Khalsa and Jacques. 
Middlesex Superior Court 

In April 4, 1997 a Middlesex County Grand Jury returned a total of 33 indictments 
involving multiple counts of Insurance Fraud, Larceny and Conspiracy against: 
Celies Dessin of Somerville, owner of St. Moses Auto Driving School; Dr. Gary 
Sbordone of Topsfield, owner of Sbordone Chiropractic of Melrose; Dr. Hari 
Narayan Karta Singh Khalsa of Millis, owner of Khalsa Chiropractic of 
Cambridge; Dr. Emilio Jacques, Jr., of Arlington, owner of Cambridge 
Orthopedic Office, and William Jerome of Saugus, an attorney with a law office 



29 



in Somerville. The multiple indictments allege that the defendants failed to 
inform insurance carriers of any previous accidents, similar injuries or treatments 
relating to claimed injuries, accidents or conditions. As a result, seven insurance 
companies were allegedly defrauded and made payments in excess of $78,000. 

• Commonwealth v. Paul Christian . Newburyport Superior Court 

Following trial, Paul Christian of Tyngsborough was sentenced by Judge Robert 
Barton to serve 9 to 1 years in state prison for his role in the sale of stolen 
construction equipment to three customers in Haverhill and Andover. Christian 
and Anthony Pergakis of Lowell were indicted in October of last year in Essex 
Superior Court on multiple counts of Receiving Stolen Property and Conspiracy. 
Pergakis plead guilty in February 1997 and is serving a two-year jail term. This 
prosecution resulted from the theft a number of "Bobcat" style front-end loaders in 
Massachusetts and New Hampshire. One of these loaders was recovered in 
Lawrence after the defendants sold it to a local man. Two more loaders were later 
identified as having been sold by the defendants. Each loader was valued at 
approximately $20,000. 

• Commonwealth v Sandra Gil . Lynn District Court 

Sandra Gil, a/k/a Sandra Minaya, has been charged with eight counts of Larceny, 
six counts of Forgery and six counts of Falsifying a Certificate of Registration. 
Between 1993 and 1995, Gil allegedly represented herself as an agent of the 
Metropolitan Insurance Company and improperly accepted premiums on its 
behalf Rather than forward these payments to the company, she allegedly 
deposited them to her own accounts. Apparently, she was never authorized to 
write premiums or accept money on behalf of Metropolitan, and manufactured a 
fake insurance stamp to appear to be more legitimate. Allegedly, Ms. Gil stole in 
excess of $3750 by this scheme. She was arraigned on January 8, 1997 and awaits 
ftirther pretrial conference. 

• Commonwealth v Adele Doucette . Plymouth Superior Court 

Adele Doucette, a former insurance agent from Brockton, was charged with an on- 
going series of thefts from her insurance agency's customers of their down- 
payments towards the purchase of automobile, general liability, medical 
malpractice, and other insurance coverage. These larcenies took place over the 
course of more than two years and involved over two dozen customers and four 
insurance companies. In total, Ms. Doucette stole over $15,000 from customers 
and insurance companies. She was charged with 1 9 separate Larceny indictments 
and six (6) Forgery counts. On March 27, 1997, Adele Doucette plead to the 
charges and received two years in the House of Correction, suspended for two 
years. She was also ordered to perform one hundred hours of community service 
and to pay $10,000 in restitution, plus a $60 VictimAVitness fee. 

• Commonwealth v Mark S. Donoghue . Greenfield District Court 

In July, 1 992, approximately $6000 in bar receipts relating to a barroom called 



30 



"Taylor's Tavern" were stolen from the office of Donoghue's Realty in Greenfield. 
Both businesses were owned by Mr. Donoghue at the time. After discovering that 
he had no insurance coverage for this type of loss on his barroom insurance 
policy, Mr. Donoghue claimed that the stolen money was received as real estate 
rental income and filed for compensation under a business policy held by another 
company. Mr. Donoghue was charged with one count of Filing a False Insurance 
Claim. On March 11,1 997, Mr. Donoghue admitted to sufficient facts and was 
placed on probation by Judge Michael Ripps for one year. Further, he was 
ordered to pay $9880 in restitution to the St. Paul Marine and Fire Insurance 
Company and to speak to the local Chamber of Commerce about the unlawfulness 
of lying to insurance companies. 

Commonwealth v Anil Mohammed. Quincy District Court 
Anil Mohammed and Vindra Mohammed, husband and wife, defaulted at their 
arraignment for charges involving Insurance Fraud, Attempted Larceny, and 
Conspiracy for filing a fraudulent lawsuit for personal injury and a fraudulent 
stolen property claim. In 1991, Anil Mohammed brought a civil lawsuit against 
Hanover Insurance Company claiming that he had slipped and fallen in a puddle 
of water in his apartment building laundry room. Mr. Mohammed allegedly 
suffered a broken ankle. After investigation, however, Hanover discovered that 
Mr. Mohammed had allegedly broken his ankle while playing basketball, and that 
after returning home, Mr. Mohammed and his wife conspired to stage the injury. 
In a second insurance claim, Mr. and Ms. Mohammed filed a claim with 
Commerce Insurance for property valued at $10,000 that was allegedly stolen 
from their apartment. An investigation showed that the property claimed actually 
belonged to the Mohammed's ex-roommate and that she was still in possession of 
the property. A default warrant has issued. 



31 



DIVISION STATISTICAL SUMMARY 



CASES 

New Cases Charged in FY97 54 

- Motor Vehicle Ins. Fraud 25 

- Workers' Compensation Fraud 1 5 

- Property Fraud 5 

- Multiline 4 

- Other Insurance Fraud 5 

Cases Closed in FY97 61 

- Motor Vehicle Ins. Fraud 25 

- MA^ + Property Fraud 1 

- Insurance Fraud 12 

- Property Fraud 8 

- Workers' Compensation 12 

- Other Insurance Fraud 3 



COURTS 

Superior Court 

(Essex, Middlesex, Norfolk, 
Plymouth, Suffolk, Worcester, Bristol) 

District Court 



40 



75 



(Attleboro, Boston Municipal Court, 1 15 

Brockton, Brookline, Cambridge, Chelsea, 
Chicopee, Dedham, Dorchester, Edgartown, 
Framingham, Greenfield, Leominster, Lowell, 
Lynn, New Bedford, Plymouth, Quincy, Roxbury, 
Salem, Springfield, Taunton, Wareham, Wrentham, 
West Roxbury, Northampton, Westborough) 

TRAINING & OUTREACH PROGRAMS 

• Speech to AIG Claims Group 

AAG Jennifer Ferreira addressed a group of investigators and adjusters of the 
A.I.G. Claims Group, a large insurance company that provides workers' 
compensation insurance in Massachusetts. The presentation concerned effective 
methods of accident investigation, detection of fi-aud and preparation of case files 
for referral to prosecutors. 



32 



• DRI Insurance Fraud Seminar 

On October 24 and 25, 1996 the Defense Research Institute conducted a seminar 
at the Copley Marriott on insurance fraud and suspicious insurance claims. AAG 
John Ciardi spoke to the conference on how to develop a relationship with 
criminal prosecutors, how to prepare cases for referral and how to set up internal 
procedures to foster detection and prosecution of fraud cases. The DRI is a 
national organization of insurance companies, in-house and outside counsel, 
insurance defense attorneys and state officials. 

• "Fraud Fighter of the Year" Awards 

On April 9, 1997 AAGs David Marks and Michael Cullen were selected to 
receive the Association of Certified Fraud Examiners Boston Chapter's "Fraud 
Fighter of the Year" Awards. This honor was in recognition of their significant 
work in securing indictments in the Ellis and Ellis case. 

• Occupational Health Center at Deaconess -Glover Hospital 

In April AAG John Ciardi spoke at the Grand Opening of the Occupational 
Health Center at Deaconess -Glover Hospital. The event was the last of a string 
of programs designed to introduce the new Center to the Deaconess-Glover 
affiliates as well as the local hospital and business communities. 

• Massachusetts Municipal Workers' Compensation Group 

On April 1 1, 1997 AAGs John Ciardi and Michael Cullen spoke before the 
Massachusetts Municipal Workers' Compensation Group. 

• Workers' Compensation Premium Avoidance Seminar 

On May 2, 1997 AAG Jennifer Ferreira spoke at a seminar in Needham, 
Massachusetts presented by the OAG and the IFB and Office of the U. S. Attorney 
relative to premium avoidance investigation and detection. 

• Investigation of Automobile Glass and Body Shops Seminar 

On November 8, 1996 AAGs Brian Burke and Kevin Brekka spoke in Taunton, 
Massachusetts at a seminar presented by the OAG and the IFB relative to 
automobile repair fraud. 

• Automobile Glass and Body Shops Task Force 

AAGs Brian Burke and Kevin Brekka have formed a task force composed of 
representatives from the IFB, insurance industry, and automobile body and glass 
repair companies relative to automobile repair fraud. The task force meets 
periodically to develop proposals by which to improve motor vehicle claims 
adjustment procedures. 



33 



MEDICAID FRAUD CONTROL UNIT 

The Attorney General's Medicaid Fraud Control Unit is comprised of experienced 
prosecutors and highly trained investigators, including auditors, pharmacists, registered nurses, 
and computer analysts. The Medicaid Fraud Control Unit investigates and prosecutes healthcare 
providers for defrauding the Commonwealth's 3.6 billion dollar Medicaid program. The Unit 
also prosecutes those caretakers that abuse, neglect, mistreat or financially exploit the elderly and 
the disabled in long term care facilities. One of 47 such units nationwide, the Medicaid Fraud 
Control Unit is certified aimually and receives 75% of its operating budget from the federal 
government. 

During fiscal year 1997, the Medicaid Fraud Control Unit initiated several criminal and 
civil enforcement actions as it sought to have a significant deterrent impact on the healthcare 
provider community. As reported below, the Medicaid Fraud Control Unit brought criminal and 
civil actions against a variety of healthcare providers, including physicians, dentists, 
psychiatrists, pharmacies and nursing homes. In addition to recovering nearly $1 .7 million in 
criminal and civil fines and restitution, the Attorney General's Medicaid Fraud Control Unit 
obtained 28 convictions against health care providers, and nursing home caretakers that abused, 
misfreated or neglected elderly residents in long term care facilities. 

HIGHLIGHTED EFFORTS 

& 

SIGNIFICANT ACTIVITIES 

PHYSICIANS 

• Lynn Doctors - Two doctors who practiced medicine in Lynn were sentenced 
pleading no contest to charges that they illegally dispensed drugs to undercover 
state police troopers who posed as drug addicts. 

One doctor was sentenced to six months in the House of Correction suspended for 
two years. The other doctor was sentenced to 30 days in the House of Correction, 
suspended for two years. As a condition of probation, both doctors were ordered 
to resign from the practice of medicine in the Commonwealth. 

The State Police Diversion Investigative Unit and the Medicaid Fraud Control 
Unit (MFCU) began investigating both doctors when they were contacted by 
several pharmacies in the Lynn area, as well as physicians, social workers and 
local police, about the unusually high number of abusable drugs the doctors were 
prescribing to drug addicts in Eastern Massachusetts. (August 1 996) 

• Jamaica Plain Psychiatrist - A Jamaica Plain psychiatrist pleaded guilty to three 



34 



counts of illegal prescribing of a Class C controlled substance, three counts of 
filing false medicaid claims and one count of larceny over $250. The doctor also 
pleaded guilty to similar charges in Norfolk County as part of the investigation in 
October of 1996. 

The defendant was sentenced in Norfolk County to a two-year House of 
Correction term, one year to be served, with the balance suspended. The judge 
ordered him confined to his home and monitored by an electronic bracelet. The 
balance of the sentence was suspended for three years. The judge in Suffolk 
County ordered the same sentence. The sentences will run concurrently. In 
addition, the defendant was ordered to pay $75,000 in restitution to the Medicaid 
program. As a condition of his probation, the defendant must permanently 
surrender his license to practice medicine in Massachusetts. 

He must also undergo alcohol treatment, counseling and urine checks. If the 
defendant does not stay drug and alcohol fi-ee, he will be imprisoned for two 
years. 

Following an extensive investigation by the Medicaid Fraud Control Unit, the 
Massachusetts State Police Drug Diversion Unit, the Federal Drug Enforcement 
Administration and the Boards of Registration in Medicine and Pharmacy, the 
defendant was indicted in Suffolk County in August, 1995 on a variety of charges, 
and indicted again in Suffolk County in December, 1995 on additional charges. 

The State Police Drug Diversion Unit along with MFCU coordinated an 
imdercover sting operation on the doctors practice, sending patients to the 
defendants office seeking drugs that weren't medically necessary. The defendant 
then prescribed a variety of addictive drugs. 

Evidence later seized by State Police indicated that the doctor was providing 
drugs to more than 700 patients and billing the state, federal government and 
private insurers between $30,000 and $40,000 each month. In addiUon, an 
unknown amount of cash was given to the doctor by drug seeking patients. 
(December 1996) 

Lawrence Psychiatrist - A Lawrence psychiatrist was sentenced to a two-year 
House of Correction suspended sentence and was placed on supervised probation 
for three years after pleading guilty to grand larceny and filing false medicaid 
claims. In his guilty plea, the defendant admitted to fi-audulently upgrading 
services billed to Medicaid and its mental health and substance abuse contractors, 
the Massachusetts Behavioral Health Partnership and Mental Health Management 
of America. 

The psychiatrist billed for twenty-four or more hours of service per day on 
seventy-seven separate days for time based office visits. He also billed Medicaid 



35 



DENTISTS 



for a procedure known as a "Medication Visit" for which, under the program 
regulations, a medical doctor must spend approximately thirty minutes with each 
patient. Contrary to those regulations, the doctor spent only a few minutes with 
each patient. 

Following the doctors guilty plea, he was ordered to pay $240,68 1 in restitution to 
Medicaid and $25,000 in criminal fines. Additionally, the defendant will pay 
$30,000 in civil penalties, costs and damages to the Commonwealth. 

Under the following special conditions of probation, the defendant was ordered to 
surrender his license to practice in Massachusetts to the Board of Registration in 
Medicine for a three year period, as well as suspension from the practice of 
medicine anywhere in the United States. The defendant was also ordered to 
perform eleven hours of community services each week of his three year 
supervised probation. 
(March 1997) 

Hyannis Physicians - Two Hyannis physicians and their group practice agreed to 
pay $30,000 to settle allegations of over billing the State's Medicaid program. 
The Medicaid Fraud Control Unit reached a civil settlement with the two 
physicians and their professional corporation which resolved allegations of billing 
for allergy injections and office visits on the same date of service. 

The Medicaid Fraud Control Unit's investigation focused on a period between 
1994 and 1995 when associates in the practice were allegedly billing for an allergy 
injection and an office visit for Medicaid patients being treated for allergies. 
Medicaid regulations permit a physician to bill only for the allergy injection when 
it is the primary purpose of the doctor's office visits. (March 1997) 



Quincy Dentist - A Quincy dentist pleaded guilty in Suffolk Superior Court to 
charges of submitting false claims worth approximately $20,000 to the State 
Medicaid program. The Quincy dentist fraudulently billed Medicaid for dental 
services and restorations that he did not provide on various dates in 1994. A 
Suffolk Superior Court Judge ordered the Quincy dentist to pay a $12, 500 fine 
and placed him on probation for two years. The Court also ordered the dentist to 
pay $20,000 in restitution to the states Medicaid program. (December 1 996) 

Charlestown Dentist - A Charlestown dentist agreed to pay $123,000 in civil 
penalties and $62, 000 in restitution to settle allegations of Medicaid fraud and 
abuse in his billing practices. 

MFCU filed the settlement agreement and consent judgment against the 
Charlestown dentist in Suffolk Superior Court. This dentist allegedly fraudulently 
billed Medicaid for dental services to patients. 



36 



The dentist allegedly fraudulently billed for cosmetic dental services, billed for 
services not covered by Medicaid and billed for services to patients who w^ere not 
yet Medicaid eligible between April 1992 to July 1996. (July 1996) 

Boston Dentist - A Boston dentist was the subject of a complaint, settlement 
agreement and consent judgment in Suffolk Superior Court alleging that over a 
four-year period he fraudulently billed Medicaid for more expensive dental 
services than he actually performed on patients. 

The Boston dentist resigned from the Medicaid program and agreed to pay 
$75,000, which constitutes fiall payment of the alleged overcharges and penalties 
to the Medicaid program (October 1996) 



PHARMACIES 



New Bedford Pharmacy - A New Bedford pharmacy was ordered to pay $40,000 
after pleading guilty to Medicaid fraud charges of falsely inflating its prices for 
products billed to the state's Medicaid program. 

The New Bedford Pharmacy pleaded guilty in Suffolk Superior Court to five 
counts of Medicaid fraud. The company overbilled Medicaid 245 times for items 
delivered to five patients over a two and one-half year period. 

A Superior Court Judge ordered the company to pay a $15,000 fine and $25,000 
in restitution to the state's Medicaid program. The pharmacy's owner was placed 
on a pre-trial probation for six months. 

Under the terms of the guilty plea, the pharmacy's owner agreed to never become 
a Medicaid or Medicare provider and to never obtain an ownership interest in any 
company that bills Medicaid or Medicare for health care services, medicines or 
equipment. (January 1997) 

Supermarket Chain - A regional supermarket and pharmacy chain agreed to 
voluntarily reimburse $35,232 to the Massachusetts Medicaid program to correct a 
computer software installation error that resulted in overbilling the Medicaid 
program. 

The supermarket chain agreed to the payment as part of a settlement with the 
state's Division of Medical Assistance, which administers the Medicaid program. 
The settlement marks the first time a pharmacy vendor has voluntarily disclosed a 
billing error. In June 1995, an outside confractor upgraded the supermarket 
chain's computer billing program. The pharmacy software program that was 
installed caused the supermarket chain to bill at a higher than customary rate for 
particular prescriptions. (October 1996) 

Cambridge Pharmacy - A Cambridge pharmacy agreed to reimburse the state's 



37 



Medicaid program $40,000 for allegedly billing for services it did not provide and 
for wrongful collection of funds. 

The Medicaid Fraud Control Unit filed a civil complaint, consent judgment, and 
agreement for judgment in Suffolk Superior Court against the Cambridge 
pharmacy. 

The complaint alleges the pharmacy billed Medicaid for more expensive products 
than it actually provided to recipients and solicited cash from Medicaid recipients 
for goods that were reimbursable by Medicaid. The complaint further alleges the 
pharmacy submitted false bills to Medicaid for goods and services provided to 
individuals who were paying cash during their spend-dovm period. In addition, 
the complaint alleges that the pharmacy failed to maintain proper documentation 
for insulin and other drugs that require written prescriptions. Pursuant to the 
settlement, the pharmacy will pay $40,000 in civil restitution to the Division of 
Medical Assistance and submit a compliance billing plan. (May 1997) 

New Jersey Pharmaceutical Company - A New Jersey-based pharmaceutical 
company will provide the Massachusetts Medicaid program with $75,000 worth 
of a patented method of insulin delivery to resolve allegations that it denied access 
to Medicaid patients. 

The pharmaceutical company reached a civil settlement with the Medicaid Fraud 
Control Unit and will distribute its insulin delivery system free of charge to 
Medicaid recipients and other indigent patients at the Joslin Diabetes Center, 
Children's Hosptial Diabetes Clinic and Massachusetts General Hospital. The 
distribution effort will account for an approximate $75,000 savings to the state's 
Medicaid program. 

MFCU alleged that the pharmaceutical company was making its program 
available only to cash-paying patients and those insured by private companies, 
while denying the program to Medicaid patients. 

The insulin delivery system developed by the pharmaceutical company, consists 
of a pen-like device housing an insulin cartridge and a disposable needle. Insulin 
dosages are quickly and accurately set with an easy-to-read dial on the barrel of 
the pen. 

The agreement ensures Medicaid patients across the state will have access to the 
program, and Medicaid patients nationwide will continue to have access to the 
pharmaceutical company's diabetes educational materials. (March 1997) 

Norwood Pharmacy - A Norwood pharmacy paid $100,000 to settle allegations 
that the pharmacy illegally billed the state's Medicaid program and was involved 
in illegal financial arrangements with several South Shore nursing homes. 



38 



The Medicaid Fraud Control Unit filed a complaint and settlement agreement in 
Suffolk Superior Court against the Norwood pharmacy. The pharmacy provides 
pharmaceutical and non-pharmaceutical supplies to Medicaid recipients residing 
in long-term care facilities. 

The settlement resolves allegations that the pharmacy was involved in illegal 
financial arrangements with several Massachusetts nursing homes by providing 
them with discoimts, rebates, equipment and other services. 

The complaint further alleged that the pharmacy wrongfully billed Medicaid for 
dispensing, billing and receiving payment for drugs without first obtaining an 
authorized written prescription. The pharmacy also allegedly billed Medicaid for 
certain items at prices higher than the usual and customary prices that it charged to 
non-Medicaid customers. (May 1997) 

HEALTH CARE COMPANIES 

• Clinical Lab Company - A national health care company with offices in 
Massachusetts agreed to repay $277,000 to the Commonwealth for alleged 
Medicaid abuses. The payment was part of a $6.6 million nationwide settlement 
with a clinical laboratory company to be shared by 27 states. 

The clinical laboratory company provided blood testing services to doctors, clinics 
and health care providers in a majority of the United States. 

Prior to August 1993, the company had Massachusetts offices in Andover, 
Attleboro and Westwood. The payment of $277,000 settles allegations that the 
company conspired to defiraud Medicaid and Medicare by bundling three different 
exotic tests with certain ordinary blood panels, causing doctors to order tests that 
were not medically necessary. (December 1996) 

• Rockland Mental Health Center - A South Shore mental health center alleged to 
have improperly billed Medicaid for psychotherapy services to nursing home 
residents agreed to repay $125,000 to the state Medicaid program. 

In a civil lawsuit filed in Suffolk Superior Court, MFCU alleged that the company 
overbilled Medicaid for psychotherapy services to nursing home patients fi-om 
July 1992 to January 1997. 

In a settlement agreement, the company agreed to repay $125,000 to the state's 
Medicaid program, $25,000 of which will be used for uncompensated care to 
under-insured elders. (February 1 997) 

NURSING HOMES 

• Brockton Nursing Home - A Brockton nursing home agreed to a civil settlement 



39 



to resolve allegations that the facility mismanaged patient funds. 

The nursing home paid more than $25,000 in restitution and penalties to correct 
discrepancies found in the patients' personal need allowance account. 

The Medicaid Fraud Control Unit discovered instances where the nursing home 
allegedly did not fimd the patients' personal needs allowance account, effectively 
resulting in a interest-free loan to the nursing home. 

Under the terms of the settlement the patients' personal needs allowance account 
will be reimbursed a total of $15,780. The owners also agreed to pay $10,000 in 
civil penalties, fines and investigative costs. 

In addition, the agreement required that the nursing home hire an independent 
certified public accountant to review the patients' account every three months for 
the next two years. The quarterly reports must be sent to the Attorney General's 
office until the end of 1998. (December 1996) 

Swansea Nursing Home - A Swansea nursing home that allegedly fraudulently 
billed the state Medicaid program for reimbursement agreed to pay $40,000 in 
restitution. 

The Medicaid Fraud Control Unit filed the settlement agreement in Suffolk 
Superior Court. According to the complaint the nursing home violated state 
Medicaid regulations for long-term care facilities by billing the Medicaid program 
for services that were never rendered to its residents. 

An investigation by MFCU showed that from 1990 through 1995, a no-show 
employee was paid for work that was never performed and the employee's salary 
was included on claims filed with the Division of Medical Assistance for 
Medicaid reimbursement. In addition to the $40,000 restitution, the nursing home 
agreed to frilly comply with all federal and state laws, regulations and rules 
applicable to its participation in the Medical Assistance Program; maintain 
complete and accurate records; file accurate and true operating cost reports with 
the Massachusetts Rate Setting commission; and continue to provide quality 
services to its residents. (August 1996) 



ELDER ABUSE 



Saugus Nurses Aide - A Saugus woman pleaded guilty in Lynn District Court to 
charges that she struck an 80-year-old woman in the face at a local nursing home. 
The former nurses aide admitted to sufficient facts on two counts of patient abuse 
and one count of assault and battery. 

The defendant was a certified nurses aide at a Saugus rehabilitation and nursing 
center when she struck the female patient across the face. The patient, who suffered 



40 



from dementia and a seizure disorder, suffered bruised arms and shoulders and cuts 
in the assauh. Another nursing home employee witnessed the incident and notified 
the nursing supervisor. Thedefendant was fired as a result of the report. The 
defendant was placed on probation and the case was continued without a finding for 
eighteen months over the Commonwealth's objection. (May 1997) 

Rhode Island Nurses Aide - A Rhode Island man pleaded guilty in Attleboro District 
Court to sexually abusing an elderly patient at an Attleboro nursing home. The 
defendant pleaded guilty to one count of indecent assault and battery. He was 
sentenced to one year in the House of Correction, suspended for eighteen months, 
with eighteen months of supervised probation. He was also ordered to submit to a 
psychological evaluation, imdergo counseling, turn in his nurses aide license, and 
stay away from the victim. The defendant is also prohibited from accepting a paid or 
volunteer position in the health care field in Massachusetts. In addition, 
Massachusetts law required that the defendant register as a sex offender with the 
local police departments where he works and resides. 

The defendant was a nurses aide at a nursing and rehabilitation center in Attleboro 
when a visitor witnessed him fondling the breast of an eighty-one year older female 
resident as he kissed her on the mouth. The witness reported the incident to the 
management of the facility and notified the Department of Public Health. (May 
1997) 

Lowell Maintenance Worker - A Lowell man pleaded guilty in Lowell District Coiul 
to one coimt each of patient abuse and indecent assault and battery. The defendant 
was sentenced to one year in the House of Correction, suspended for two years with 
two years supervised probation. As a special condition of the probation, the 
defendant is prohibited from working in any capacity for a health care facility or 
agency that provides care to patients or long-term residents. 

The defendant was employed as a maintenance worker at a nursing and rehabilitation 
center in Lowell and was allegedly observed by a certified nurses aide fondling the 
groin area of a 35-year-old female patient within the closed privacy curtains of her 
room. The patient, who suffers from Huntington's disease, was partially clothed and 
asleep at the time. (December 1 996) 

Easthampton Nurses Aide - A former certified nurses aide at an Easthampton nursing 
home who admitted to abusing an elderly dementia resident was barred from 
providing direct patient care for one year. The former nurses aide admitted to 
sufficient facts for a guilty finding in Northampton District Court on one count each 
of patient abuse and assault and battery. Over the Commonwealth's objecfion, the 
judge continued the matter without a finding for one year on the condition that the 
aide be precluded from providing direct patient care during the period. The former 
aide admitted to assaulting a ninety-six year-old female dementia resident while 
feeding her breakfast. The aide admitted to roughly handling the resident and using 
profanity. (July 1996) 



41 



DIVISION STATISTICAL SUMMARY 

STATISTICAL SUMMARY 

Formal Investigations Initiated 48 

Investigations Completed and Closed 45 

Individual Indictments 1 7 

Corporate Indictments 6 

Individuals Convicted 12 

Corporations Convicted 2 

PATIENT ABUSE/NEGLECT CASES 

Abuse & Neglect Referrals 739 

Abuse & Neglect Investigations 1 96 

Total Criminal Complaints & Indictments 6 

Prosecutions Completed and Closed 7 

Individuals Convicted 5 

Pending Prosecutions 14 

CIVIL/CRIMINAL FINANCIAL RECOVERIES 

Number of Civil Recovery Cases 1 7 

Civil Recovery $ 1 ,2 1 6,470.25 

Number of Criminal Recovery Cases 9 

Criminal Recovery $468,42 1 . 1 1 

Total Recovery $ 1 ,684,89 1.36 

Training, Enforcement, Education and Outreach Initiatives 

The Medicaid Fraud Control Unit continued to ensure that its staff emphasize current 
healthcare fraud investigative techniques. Some of the seminars and conferences attended by the 
MFCU staff included: The National Anti-Fraud Association Annual Conference and Training 
Seminar; The National Association of Medicaid Fraud Control Units Annual Conference and 
Training Seminar; The Federal Law Enforcement Training Program for MFCU investigators; The 
New England Drug Diversion Conference and The Attorney General's Comprehensive In-Service 
Investigators Training. 

Recognizing that the vast majority of healthcare providers are eager to provide quality 
healthcare, the Medicaid Fraud Control Unit has continued to educate the provider commimity 
regarding Medicaid Program Regulations, their applications to fraud alerts, and the use of effective 
corporate compliance plans. 

In pursuit of those providers that operate outside legal boundaries, the Attorney General's 
Medicaid Fraud Control Unit has developed several enforcement associations as reported below: 



42 



The National Association of Medicaid Fraud Control Units rNAMFCU) - The 
Medicaid Fraud Control Unit's directors meet regularly to discuss emerging trends in 
fighting healthcare fraud. In consant with the federal Department of Justice, 
NAMFCU brought several prosecutions against healthcare corporations that resulted 
in millions of dollars returned to the Medicare and Medicaid programs nationwide. 
The Association also contributed to Attorney General's Elder Summit Conference 
which brought together experts nationwide to profile innovative ideas for protecting 
the elderly from a variety of common scams, neglect, abuse and exploitation. 

The Northeast Healthcare Law Enforcement Association fNHLEA) - Consisting of 
chief investigators from New England MFCUs, including New York and New Jersey, 
the Massachusetts State Police Diversion Investigative Unit and federal law 
enforcement agencies including the Drug Enforcement Administration (DEA), the 
Federal Bureau of Investigations (FBI), the Internal Revenue Service (IRS) and the 
Office of Inspector General (OIG), this group shares investigative strategies and 
develops joint state/federal health care fraud investigations and prosecutions. The 
Association also sponsors quarterly training programs such as this years Computer 
Investigations in a Healthcare Environment and Durable Medical Equipment 
Invoicing Fraud . 

Drug Diversion Issues - MFCU representatives, along with the Federal Drug 
Enforcement Agency and the Board of Registration in Medicine and Pharmacy work 
with various state and federal agencies concerning drug diversion investigation issues 
including the sharing of investigative resources to develop comprehensive 
prosecutions. In June of 1997 the Attorney General and his Medicaid Fraud Control 
Unit were recognized for outstanding contributions to the drug enforcement effort in 
Massachusetts with a distinguished service award from the Federal Drug 
Enforcement Administration. The award is the result of an on-going relationship 
v^th the Drug Enforcement Agency, the Federal Bureau of Investigations, and the 
Massachusetts State Police in the coordination of white collar crime investigations. 

Metra Health Association - Representatives from the New England MFCUs, the 
Office of Inspector General, FBI and Medicare meet with the Association of Survey 
Utilization Review Systems to discuss the latest trends in analyzing and packaging 
utilization data for successftil prosecutions. 

Bureau of Special Investigations - The Medicaid Fraud Control Unit meets with 
representatives from the Bureau to discuss welfare fraud, referrals and inter-agency 
investigations involving Medicaid recipients. 

Division of Registration - Health Care Fraud Unit - The Medicaid Fraud Control Unit 
meets with representatives from the Division's Health Care Fraud Unit which brings 
complaints against health care professionals before various professional licensing 
boards. 

Department of Public Health - The MFCU meets regularly with the officials from the 



43 



Department of Public Health to discuss issues affecting the monitoring and policing 
of instances of elder abuse, neglect, and mistreatment in long term care facilities. 

I 
Pharmacy Program - The MFCU's Pharmacy Coordinator lectures regularly to the I 

state's registered pharmacists to instruct and educate on The MFCU's pharmacy 

enforcement program and the latest trends, laws, and regulations affecting the 

pharmacy community. 

New England Anti-Fraud Association - The MFCU meets quarterly with the New 
England Anti-Fraud Association which consists of private insurance health care fraud 
investigators. The MFCU has lectured the group on the importance of investigative 
cooperation between private and public health care enforcement to identify 
fraudulent providers. 

Division of Medical Assistance - The MFCU meets monthly with the Division of 
Medical Assistance, the agency that administers the state's Medicaid program, to 
discuss effective fraud review programs, referrals, and the development of health 
care fraud investigations. 



44 



CRIMINAL BUREAU ANNUAL REPORT 

The Criminal Bureau provides the citizens of the Commonwealth with a multi-dimensional 
approach to law enforcement in the Commonwealth of Massachusetts. Trial prosecutors, appellate 
prosecutors, and prosecutors who specialize in urban violence comprise the legal staff of the 
Bureau. Additionally, there are financial investigators, a victim/witness advocate, a paralegal, 
environmental police officers, members of the Massachusetts State Police, and a volunteer attorney 
in the Bureau. 

The trial prosecutors represent the Commonwealth in criminal prosecutions throughout the 
state, primarily in the areas of economic crime, public corruption, envirormiental crimes, and 
narcotics violations. The appellate staff conducts post-conviction proceedings, including 
representing the Commonwealth in appeals of criminal convictions, defending against federal 
habeas corpus challenges to state criminal convictions, and appearing on behalf of state officials, 
members of the judiciary, prosecutors, and other law enforcement agents named as defendants in 
state and federal civil suits generated by prisoners. Assistant attorneys general in the Bureau fiirther 
serve the public by responding to inquiries and complaints on myriad issues fi-om citizens, 
reviewing extradition documents firom executive officers of the fifty states, and sponsoring and 
participating in training programs on criminal justice issues. 

The organizational structure of the Bureau reflects five discrete practice areas: the Appellate 
Division, the Economic Crimes Division, the Environmental Crimes Strike Force, the Narcotics and 
Special Investigations Division, and the Public Integrity Division. Each division is supervised by a 
division chief In addition to these five divisions, there is a Criminal Investigation Division, 
comprised of Massachusetts state troopers and investigators who investigate crimes throughout the 
state, and a Financial Investigation Division, established to assist prosecutors in investigating 
financial crime, including larceny, public corruption, tax evasion, campaign financial violations, and 
fraud. The financial investigators also maintain the accounting for forfeited funds seized by the 
Narcotics and Special Investigations Division, as well as provide assistance to the Asset Forfeiture 
Unit in searching titles of forfeited property. 

Lastly, the Bureau spearheads the Safe Neighborhood Initiative (SNI), a collaborative effort 
with the Boston Police Department, the Boston Mayor's Office, the Suffolk County District 
Attorney's Office, the U.S. Attorney's Office, and community residents to reduce crime, increase 
economic stability, and improve the quality of life in designated urban neighborhoods. The SNI 
operates on a commimity prosecution model now in place in Dorchester, Roxbury, Chelsea and 
Brockton. 

Currently, there are 35 prosecutors, eight financial investigators, nine support staff, a 
paralegal, a victim witness advocate, a program coordinator for the Safe Neighborhood Initiative, 
and a volunteer attorney in the Criminal Bureau. In addition, 32 members of the Massachusetts 
State Police are assigned to the Bureau to investigate alleged criminal conduct in the 
Commonwealth. 

The Chief of the Criminal Bureau is Frances A. Mclntyre, who oversees all Bureau acfivities. 
Deputy Chief Susan Spurlock directs the Safe Neighborhood Initiative, and Deputy Chief Mark 



45 



Smith manages the Htigation in the Bureau. The division chiefs are: Pamela Hunt, Appellate 
Division; Carol Starkey, Economic Crimes; Martin Levin, Environmental Crimes Strike Force; 
Robert Sikellis, Narcotics and Special Investigations Division; and Jeremy Silverfme, Public 
Integrity Division. Paul Stewart, CFE, directs the Financial Investigation Division and 
Massachusetts State Police Captain John Kelly heads up the Criminal Investigations Division. 

There are also two Bureau Attorneys in the Criminal Bureau. Mary A. Phillips, Bureau 
Attorney for Training and Administration, coordinates the grand jury process throughout the 
Commonwealth, develops training programs for the Criminal Bureau, serves as Chair of the 
Training Committee for the Office of the Attorney General, and advises the Bureau Chief on 
administrative and budgetary matters. Elisabeth J. Medvedow, Bureau Attorney for Policy and 
Legislation, develops and coordinates criminal justice initiatives, reviews and drafts legislation 
affecting the criminal justice system, writes amicus briefs in cases of statewide significance, and 
edits the Law Enforcement Newsletter, a publication distributed to judges, prosecutors and police to 
keep the law enforcement community apprised of recent developments in criminal law. 

As with any organization, members of the staff leave to seek new professional opportunities. 
One significant loss in FY97 was R. Michael Cassidy, who resigned as Chief of the Criminal 
Bureau, a position he had held since 1993, to assume the position of Associate Dean for 
Administration at Boston College Law School. 



46 



APPELLATE DIVISION 

The Appellate Division handles a wide variety of criminal, federal habeas corpus, state habeas 
corpus and other civil cases which impact criminal prosecutions and the criminal justice system. 
The Division's attorneys represent the Commonwealth in appeals and post-conviction matters in 
criminal cases prosecuted at the trial level by the Attorney General's office, defend against habeas 
corpus petitions filed in federal court challenging Massachusetts convictions, and appear on behalf 
of the Commonwealth in cases involving parole surrenders, civil commitments and renditions, 
appeals in the First Circuit Court of Appeals from the grant or denial of habeas corpus relief; and 
convictions of criminal contempt. In addition, the Division also engages in civil litigation defending 
judges, clerks, probation officers and other court personnel. District Attorneys, Assistant District 
Attorneys and other prosecutorial persoimel sued civilly in state or federal court for actions taken 
during the criminal justice process. The Assistant Attorneys General in the Division defend the 
constitutionality of criminal statutes and challenges to statutes, court rules, practices and procedures 
concerning all aspects of the criminal justice system, represent the interests of prosecutors when 
subpoenaed to testify or provide documents in civil cases, supervise agency staff attorneys handling 
litigation involving the Department of Correction and the Parole Board, and handle all appeals and 
federal court litigation concerning the Parole Board. 

In the last six years, the Appellate Division has experienced a marked increase in its caseload 
due, in part, to an expanded assumption of responsibility for representing the interests of the state's 
prosecutors in both the criminal and civil arenas. Through centralization in the Appellate Division 
of all litigation concerning the state's prosecutors, the Division's involvement in cases affecting the 
validity of convictions or which impact the criminal justice system, creative use of the Anti-SLAPP 
statute, its amicus brief program and participation in other criminal justice initiatives, the Division 
has been able to make full use of its expertise in criminal law and procedure. 

Federal habeas corpus litigation accounts for a significant portion of the Division's caseload. 
The passage by Congress of the 1996 amendments to the federal habeas corpus statute, which for 
the first time created a one-year statute of limitations for bringing federal habeas corpus petitions, 
has resulted in a substantial increase in petitions filed by Massachusetts prisoners. The Appellate 
Division has been particularly successful in defending against habeas corpus challenges. Since 
1991, of the more than 500 federal habeas cases resolved, only two were ultimately unsuccessful. 

During FY97, the following assistant attorneys general were assigned to the Appellate 
Division for part or all of the year: Annette Benedetto, William Duensing, Ellyn Lazar, Susanne 
Levsen, Gregory Massing, Gail McKenna, William Meade, Cathryn Neaves, Djuna Perkins, and 
Pamela Hunt. The division has a paralegal, Katherine DiGennaro, and two secretarial support staff 
In addition, several other Criminal Bureau attorneys handled Appellate Division cases during this 
fiscal year: Michael Cassidy, Elisabeth Medvedow, Molly Parks, and Robert Sikellis. 

The Division handled approximately 715 cases during the course of the year. Three hundred 
forty-three (343) new cases were opened in FY97, and 370 were closed. 

In addition to their case work. Division attorneys participate in and present training programs 
both for the Criminal Bureau and office-wide, as well as provide assistance to other Criminal 
Bureau attorneys on a variety of matters, including investigations, motions, trials, post conviction 



47 



proceedings, and single justice actions. The Division also works closely with the District Attorneys' 
offices, especially their Appellate Divisions, in identifying and acting as a clearinghouse on criminal 
law issues of statewide importance and interest. In addition, Assistant Attorney General Gail 
McKenna participated in the Urban Violence program for seven months prosecuting cases in the 
Brockton District Court. 



48 



I. APPELLATE DIVISION CASE STATISTICS 

A. Cases Handled 





Cases Opened 


Cases Disposed 


Total Cases Handled 


A. Federal Habeas 


116 


93 


215 


B. Federal Civil 


32 


47 


71 


C. State Civil 


93 


108 


209 


D. State Habeas Corpus 


23 


38 


63 


E. Criminal 


59 


58 


117 


F. 211, §3 and Other 
Single Justice Cases 


17 


19 


28 


G. Other 


3 


7 


12 


TOTALS 


370 


343 


715 



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



years: 





FY 
1997 


FY 
1996 


FY 
1995 


FY 
1994 


FY 
1993 


FY 

1992 


FY 
1991 


TOTAL CASES OPENED 


343 


344 


341 


307 


351 


222 


161 


TOTAL CASES DISPOSED 


370 


406 


515* 


213 


282 


206 


N/A 


TOTAL CASES HANDLED 


715 


778 


747 


652 


649 


428 


N/A 



*Includes 125 old cases. 

This fiscal year, Appellate Division attorneys handled 715 cases, slightly fewer than FY96 
and 95, but more than 67% greater than the number of cases handled in FY92. Three hundred 
seventy cases (370) were resolved during the year. Since FY92, there has been a 49% increase in 
federal habeas corpus cases, 69% increase in federal civil cases, 37% increase in state habeas corpus 
cases, 63% increase in state civil cases, 12% increase in cases brought before the single justice 
session of the Supreme Judicial Court, and a 333% increase in criminal cases. 

The number of new cases opened by the Appellate Division has remained relatively constant 
for the last five years, despite the fact that increasing numbers and types of cases have been referred 
to agency counsel to handle under the supervision of the Appellate Division. In FY97, 159 cases 
were referred by the Appellate Division to agency counsel at the Department of Correction or the 
Parole Board in their capacity as Special Assistant Attorneys General, to the District Attorneys, or to 
the various sheriffs departments. 
B. Appellate Briefs Filed 



49 



Court 


FY 

1997 


FY 
1996 


FY 
1995 


FY 
1994 


FY 
1993 


FY 
1992 


U.S. Supreme Court 


1 


3 


3 


2 


4 


7 


U.S. Court of Appeals 
(First Circuit) 


15 


12 


23 


14 


7 


10 


Supreme Judicial Court 


11 


21 


21 


14 


13 


7 


MA Appeals Court 


32 


27 


32 


24 


26 


32 


TOTALS 

* includes 2 bankruptcy 
appeals 


59 


63 


79 


54 


52* 


56 




Case Tvpe 


FY 
1997 


FY 
1996 


FY 
1995 


FY 
1994 


FY 
1993 


FY 
1992 


Criminal 


29 


30 


37 


19 


20 


26 


Federal Habeas 


5 


9 


19 


13 


7 


11 


All Other Civil/ 
State Habeas 


25 


25 


23 


24 


25 


19 



Fifteen briefs were filed in the United States Court of Appeals; three in habeas corpus cases 
and ten in federal civil or removal actions. The Division was successful in all cases decided. 

A brief filed in the United States Supreme Court was written upon the request of the Court 
in opposition to a petition for certiorari in a state criminal case raising an issue whether double 
jeopardy barred the state ft-om both prosecuting a person for dnmk driving and suspending the 
person's license for failing the breathalyzer. After briefing, certiorari was denied. 

This year, 1 1 briefs were filed in the Supreme Judicial Court. Seven were filed in criminal 
cases and four were filed in civil, state habeas corpus, and G.L. c. 21 1, § 3 matters, addressing 
subjects such as the circumstances under which police officers executing a search warrant in a place 
of business may use civilian experts to assist them in identifying items to be seized; the 
constitutionality of the vagrancy statute prohibiting begging in public places; how a state court 
should conduct proceedings to extradite an individual to another state where the person is alleged to 
be incompetent; the continued vitality of the common law crime of obstruction of justice; and the 
method of criminally enforcing campaign finance laws. 

The Division wrote 32 briefs which were filed in the Appeals Court, 21 in criminal cases, 
and ten in civil matters in all areas affecting the criminal justice system. The Division enjoyed 
success in all but one case decided by the Appeals Court; that case is now pending on further review 
to the Supreme Judicial Court. 

The Division continued its efforts to file 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 the chief law enforcement officer of the 



50 



Commonwealth. Toward that end, Division attorneys wrote two amicus briefs during FY97. In the 
first amicus, which addressed the question of whether double jeopardy principles preclude the 
government from both prosecuting criminal offenses and imposing civil or administrative sanctions 
upon an offender, the Division argued that double jeopardy does not prevent both the prosecution of 
prison inmates for assaults on guards and the ability of correctional authorities to impose prison 
discipline for those assaults. The Supreme Judicial Court agreed with the arguments advanced in 
the amicus. The second amicus brief was filed on behalf of the Attorney General and the 
Commissioner of Probation in a case in which a criminal defendant, after his conviction, sought 
discovery which would have required the Probation Department to review all its files in order to 
compile statistical profiles of probationers. That case is pending. 

In an important case decided this year, the Supreme Judicial Court adopted the legal 
analysis presented in the joint amicus brief of the Attorney General, the Governor, and the District 
Attorneys as to the rights of sexual assault victims when a criminal defendant seeks access to their 
counseling records. 

C. Renditions 

Attorneys fi-om the entire Criminal Bureau, at the request of the Governor's office, render 
opinions to the Governor on the legal sufficiency of applications for Governor's warrants sought by 
other states as well as requests by Massachusetts District Attorneys, the Department of Correction 
and the Parole Board to rendite fugitives to Massachusetts. From July 1, 1996, through June 30, 
1997, 151 cases were reviewed. Criminal Bureau attorneys also handle the habeas corpus cases 
brought by an individual challenging the validity of a Governor's warrant in the state and federal 
trial and appellate courts, and coordinate extradition of the ftigitive to the requesting state. 

II. FY97 CASE HIGHLIGHTS 

A. Federal Habeas Corpus 

Representing the Commonwealth's interests in federal habeas corpus cases which challenge 
state criminal convictions and custody is one of the Appellate Division's primary missions. These 
cases represent approximately 30% of the Appellate Division's caseload but occupy a substantially 
greater percentage of the attorneys' time. During the course of the fiscal year, the Appellate 
Division carried an all-time high of 215 federal habeas cases. A record number, 116 new cases were 
opened, and 93 were resolved. Ten years ago, in FY87, the Division handled only 30 habeas corpus 
cases. 

Division attorneys work closely with the District Attorneys offices that handled the 
prosecutions in state court. Most cases require the filing of lengthy and complex memoranda which 
are the equivalent of ftall appellate briefs. On occasion, cases require evidentiary hearings in federal 
court. During this fiscal year, evidentiary hearings were conducted in two cases: one involving a 
claim of "actual innocence" fi-om a 1977 murder conviction, and the second addressing a challenge 
to the state's computation of a release date of a defendant who had forfeited good time credits 
because of disciplinary infractions. After an evidentiary hearing in another case, involving a 1979 
murder, a magistrate judge recommended the writ be issued because the court concluded the trial 
prosecutor did not provide a written plea agreement to the defense. The Division's objections to 
that recommendation are pending. 



51 



Most of the Appellate Division's federal habeas corpus cases have involved the 
interpretation and application of the substantial revisions of the federal habeas corpus statute. In 
one case, ( Martin ) the Court of Appeals for the First Circuit asked for special briefing and argument 
on the question of the applicability of the new statute to petitions that had been filed before the 
effective date of the statute, as well as on the meaning and application of the new standard of 
review. As similar issues were being argued before the United States Supreme Court this year, the 
Division consulted extensively with assistant attorneys general fi^om other states as well as with 
members of the National Association of Attorneys General and attended a Federal Judicial Center 
seminar. One Division attorney was invited to participate in a national moot court in preparation for 
a Supreme Court argument on the applicability of the new habeas law to pending cases. As a result 
of the newly enacted one-year statute of limitations for the filing of federal habeas corpus actions, 
prisoners filed a large number of petitions challenging convictions which occurred long ago in order 
to comply with the limitations period. 

Many of the cases handled by the Division are challenges to first-degree murder convictions. 
In one habeas corpus case ( Brewer ), involving the conviction of a police officer for raping a 15-year 
old teenager while on duty, the U.S. District Court ordered the writ to issue on the ground that 
peremptory challenges may have been improperly exercised. The Division was successful in 
obtaining a stay of the release order pending appeal and in convincing the First Circuit to reverse the 
decision of the District Court to grant the writ. 

B. Federal Civil Cases 

The Appellate Division handled 71 federal civil matters, which primarily involved civil 
rights actions brought against state judges, prosecutors, clerks, probation officers, the Parole Board, 
and other criminal justice officials. In most of these cases, despite the variety of defendants and 
claims, the Division attorneys were successfiil in obtaining dismissals prior to any time-consuming 
and burdensome discovery. Several other cases involved 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. 

C. State Civil/State Habeas Cases 

During FY97, the Appellate Division handled 63 state habeas corpus actions filed by 
prisoners seeking immediate release fi-om confinement in such matters as challenges to the validity 
of Governor's warrants and extradition, challenges to criminal convictions, claims that parole or 
probation surrenders were imlawful, and attacks on commitments to the Treatment Center for the 
Sexually Dangerous. 

The Appellate Division's civil caseload of 209 cases included appeals fi-om the denial of 
petitions for release fi-om the Treatment Center, and appeals in all cases handled at the trial court 
level by agency counsel at the Parole Board, but the large majority of state civil cases involve 
representation of prosecutors, judges, public defenders, and other court personnel sued for actions 
taken in their official capacity. 

Although the District Attorneys generally represent their own interests when subpoenaed to 
testify or produce their case and investigative files in state court civil litigation, the Appellate 
Division continues to provide assistance in these cases and represents the state's prosecutors in 



52 



federal court proceedings. Additionally, the Division actively seeks to prevent collateral attacks on 
criminal convictions in cases where defendants bring civil actions against prosecutors, courts, and 
witnesses for their actions relating to prosecutions, and has intervened to stay civil proceedings until 
related criminal cases are concluded. In one case handled by the Division, the Supreme Judicial 
Court upheld an order that declared the vagrancy statute unconstitutional ( Benefit ). In several other 
cases, attorneys in the Division were able to resist efforts of criminal defendants who were seeking, 
in the nature of replevin, before the commencement of their criminal trials, the return of money or 
other items seized from them. 

The Appellate Division's work on Parole Board matters has included a number of cases 
which involve the question of counsel at parole revocation hearings and other cases challenging 
Parole Board practices, policies and decisions on granting or revoking parole, including one case in 
which the Supreme Judicial Court ruled that the Board could deny parole if the prisoner failed to 
accept responsibility for his crime. 

The Appellate Division has taken advantage of the authority in the anti-SLAPP statute for 
the Attorney General to intervene in civil lawsuits that are alleged to have been brought to chill or 
retaliate against for the exercise of the right to petition government, and has argued that the statute 
operates to require dismissal of civil cases brought by criminal defendants against victims and 
witnesses. Both cases in which the Attorney General intervened were lawsuits brought by convicted 
defendants against individuals who either provided information to police or prosecutors, testified 
before the grand jury or at trial, or otherwise cooperated with police and prosecutors in criminal 



D. Criminal Cases 

The majority of criminal cases handled by the Appellate Division are appeals fi-om criminal 
convictions in prosecutions initiated by the trial divisions of the Attorney General's Criminal 
Bureau. The number of cases handled this year, 117, continues to reflect the volume of Criminal 
Bureau trials and convictions. The Division also represents the Commonwealth when a defendant 
petitions the United States Supreme Court for a writ of certiorari. 

During FY97, the Division handled criminal appeals fi-om convictions or from the denial of 
motions for new trial in a variety of cases; narcotics, arson, armed robbery, tax evasion, rape, 
campaign finance violations, larceny and obstruction of justice cases, including convictions of a 
police chief for rape of a child and of another police chief for obstruction of justice, and of a 
physician convicted of numerous counts of larceny and being a common and notorious thief. 

In a case where a defendant was fined after his conviction for a lead paint violation, but 
failed to either pursue his appeal or pay the fines, the Appellate Division was instrumental in getting 
the court to declare that the defendant did not diligently pursue the appeal and willfully failed to pay 
the fines despite an ability to do so. As a result, the defendant was incarcerated for three months 
and paid $50,000 in fines to the Commonwealth. 

Convictions in a masked armed robbery case were reversed and the Supreme Judicial Court 
affirmed the dismissal of a larceny indictment brought against a police officer on the ground the 
chief of police had given the defendant immunity from prosecution. In addition, the Supreme 



53 



Judicial Court rejected the position taken in an amicus brief filed by the Attorney General and the 
District Attorneys and held that whenever the Commonwealth exercises its right to appeal from 
dismissal of indictments or suppression of evidence, the defendant's costs and attorney's fees must 
be paid by the prosecutor's office that takes the appeal. Another case, involving the procedure to 
follow in a trial of more than one defendant where one defendant seeks to waive trial by jury, is 
pending on further review. 

In a criminal prosecution of a court clerk by a District Attorney's office, the Division 
appeared on behalf of the Trial Court to protect the interests of the Trial Court's internal operations. 
In another case, on behalf of the Commissioner of Probation, the Division argued against the 
expungement of a domestic violence conviction that under the Brady Law would preclude the 
defendant from obtaining a firearm license. The Division was also instrumental in developing with 
the Appeals Court and the Committee for Public Counsel Services the procedure to follow in cases 
where the Court declines to appoint successor counsel because of the defendant's behavior toward 
prior appointed counsel. 

E. G.L. c. 21 1. § 3 and Other Single Justice Matters 

The Appellate Division handled 28 cases in the single justice session of the Supreme 
Judicial Court. These matters frequently involve representation of the courts and judges, or the 
defense of some aspect of the criminal justice process or system. New rules of the Supreme Judicial 
Court have eliminated the necessity of the Attorney General appearing on behalf of the courts in a 
number of cases where all the interests are represented adequately by the parties to the underlying 
case. 

III. CRIMINAL JUSTICE INITIATIVES 

Many of the attorneys in the Appellate Division work for the betterment of the legal 
profession and are engaged in public service in a number of ways. 

• 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. AAG Hunt is also a member of the Supreme Judicial Court's Standing Advisory 
Committee on the Criminal Rules, and is on the National Association of Attorneys General 
(NAAG) criminal law committee. 

• Assistant Attorney General William Duensing serves on the NAAG committee on inmate 
litigation. 

• Assistant Attorney General William Meade is the Attorney General's representative to the 
Criminal Justice Training Council and also is a member of the Editorial Board of the 
Massachusetts Law Review . 

• Assistant Attorneys General from the Appellate Division serve as the Attorney General's 
representative to the Criminal History Systems Board. 



54 



• Assistant Attorney General Gregory Massing served as Public Records coordinator for the 
Criminal Bureau. 

• Assistant Attorney General Ellyn Lazar participated in the NAAG moot court program for 
Supreme Court arguments. 

• The Division provides information on behalf of the Attorney General to the Parole Board 
relevant to its consideration of pardon, commutations, and 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. Department of Correction 

Department of Correction attorneys, under the direction and supervision of the Appellate 
Division and the Government Bureau, handle civil and state habeas corpus litigation filed by 
prisoners in a number of matters including challenges to conditions of confinement, prison 
disciplinary matters, and calculation of sentence credits. During F Y97, upon the Department of 
Correcfion's full assumption of the management and administration of the Massachusetts Treatment 
Center, the Appellate Division transferred to the Department the responsibility to handle litigation 
filed by inmates committed to the Treatment Center, including all sexually dangerous person (SDP) § 
9 hearings in the Superior Court and on appeal. 

The Appellate Division continues to defend cases which attack the validity of the original 
SDP commitment or the underlying criminal conviction. 

C. District Attorneys 

Whenever a District Attorney has a conflict of interest in an appellate case or in a case 
involving the Parole Board, the Commonwealth's interests are handled either by Assistant Attorneys 
General or by an Assistant District Attorney who is designated a Special Assistant Attorney General 
and is supervised by attorneys in the Appellate Division. 

D. Commissioner of Probation 

During FY97, agency counsel in the Office of the Commissioner of Probation, under the 
supervision of the Appellate Division, were designated Special Assistant Attorneys General to handle 
matters in which a motion to expunge probation and court records in criminal cases was filed. For 
several years these cases were handled by Appellate Division attorneys who worked to develop and 
settle the law concerning expungement and sealing. 



55 



CRIMINAL INVESTIGATIONS DIVISION 

The Criminal Investigations Division continues to provide the Criminal Bureau with a corps 
of veteran investigators who have a wealth of experience dealing with investigations on the state, 
federal and municipal level, as well as diverse experiences from the private sector. The police and 
civilian investigators assigned to the Division are experienced in matters such as organized crime, 
narcotics trafficking, public corruption, firearms violations, money laundering, securities violations, 
tax fraud, high tech crimes, crimes against the elderly, and environmental crime. The Division also 
provides technical support and resources to other divisions within the Office of the Attorney General 
and to municipalities within the Commonwealth. The Criminal Investigations Divisions has 
developed outstanding cooperative working relationships with many law enforcement organizations 
throughout the Commonwealth as well as throughout the country. 

The State Police Unit assigned to the Criminal Bureau is commanded by Captain John D. 
Kelly; Lieutenant Robert H. Friend serves as the executive officer. Sergeants Walter Carlson and 
Dermot Moriarty are assigned to the Public Integrity and Economic Crimes Divisions; Sergeant 
Thomas Greeley works with the Narcotics and Special Investigations Division and Sergeant Brian 
Kennedy is assigned to the Springfield Office. Lt. Friend also supervises the High Tech Crimes Unit 
which is a new initiative that will be targeting computer-related crimes and crimes that victimize the 
high tech industry of the Commonwealth.Lieutenant Gail Larson of the Environmental Police 
supervises environmental investigations. 

The hallmark of the Division continues to be the cooperative investigations undertaken with 
other law enforcement, governmental or regulatory agencies. Significant among these investigations 
are the following: 

The Narcotics and Special Investigations Division in conjunction with the Bristol County 
District Attorney's Office and the Bureau of Alcohol, Tobacco and Firearms, investigated a subject 
who was trafficking in stolen firearms in Suffolk and Norfolk counties. Undercover officers were 
able to purchase 12 firearms from this individual and subsequently placed him under arrest for 
trafficking in firearms. This arrest helped slow down the flow of illegal firearms to various street 
gangs in the City of Boston. 

The Public Integrity and Economic Crimes Divisions investigated the activities of a fraudulent 
investment firm that targeted the Asian immigrant community. Total fraud to the community was in 
excess of one million dollars with more than 200 victims. The investigation resulted in the 
indictment and arrest of four individuals and the permanent closing of this corrupt business. 

During FY97, the Criminal Investigations Division accomplished the following: 

Investigations 288 

Arrests 266 

Search Warrants 100 

Assists to other Agencies 495 

Drug Money Seized 104,000 

Background Investigations 1 ,420 



56 



ECONOMIC CRIMES DIVISION 

The Economic Crimes Division investigates and prosecutes all types of private sector, white 
collar and economic crime in state courts across the Commonwealth. The Division is charged with 
stemming the serious and egregious effects of private sector white collar offenders within the state 
through both pro-active prevention and aggressive prosecution. The impact of economic crime 
travels through families, communities, and in some instances, throughout the state, forever changing 
those affected. The victims of these crimes take many shapes, from the vulnerable elderly individual, 
to the small business or large corporation. 

Although the cases handled by the Division vary in size, from the $50,000 theft from a single 
elderly victim, to the multi-million dollar theft from a large corporation, the intensity of harm is 
treated with equal importance. Each year, the goal of the Division is not only to indict and convict 
guilty felons from stripping their victims of their life savings, their businesses, or ultimately, their 
personal futures, but also to assist the public and private sector in creating systemic change in order to 
prevent fraud. 

Massachusetts citizens annually incur hundreds of millions of dollars in losses. Just over the 
past fiscal year, the Economic Crimes Division alleged more than $1 1 .5 million dollars in private 
funds stolen. Since fiscal year 1995, the Economic Crimes Division obtained convictions and 
dispositions totaling over $35.5 million dollars in private stolen funds from victims throughout the 
Commonwealth. The statistics contained within this report demonstrate the success qualified 
professionals are having in making offenders of private sector fraud accountable for their financial 



Throughout the past year, the Economic Crimes Division focused on three priority areas: 
lawyer fraud, tax crimes, and all types of financial crimes (including theft and securities fraud) which 
victimize both vulnerable individuals and large corporations. Cases involving financial crimes 
against the elderly are priority prosecutions for the Economic Crimes Division. 

The Economic Crimes Division consists of seven attorneys, one special assistant attorney 
general, and one secretary, in addifion to civilian financial investigators and state police officers. The 
members of the division during part or all of FY97 consist of the following: Carol Starkey, Chief, 
AAG; Molly Parks, AAG; Kevin Brekka, AAG; Stephanie Kelly, AAG; Sarah Hartry, AAG; Lori 
Balboni, AAG; Stephen Patemiti, AAG; Andy Zaikis, SAAG; Olivia Blanchette, Secretary; James 
McFadden, InvesUgator; Patrick Ormond, Invesfigator; Brad Chase, InvesUgator; and Kristen Vagos, 
Investigator. 

In Fiscal Year 1997, the Economic Crimes Division commenced more than 51 criminal 
prosecutions against those individuals, entities, and corporations that had taken advantage of their 
positions of power in the private sector to the detriment of the citizens of the Commonwealth. During 
the same time, over 55 convictions were obtained against white collar criminals and corporations, 
including defendants who were not charged within this fiscal year. The attached chart reflects the 



57 



statistics for the financial and tax prosecutions completed by the Division throughout the last three 
fiscal years. 

Private Sector Fraud: The Financial & Tax Prosecutions 

Handled By The Economic Crimes Division jj 

!| 
A. The Financial Prosecutions 

The Economic Crimes Division receives referrals fi^om 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 as the Board of Bar Overseers, the 
Criminal Investigations Bureau of the Department of Revenue, the F.D.I.C, the Secretary of the 
Commonwealth, the United States Attorney's Office, and various District Attorneys' Offices across 
the state. 

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 fi-aud, extensive interviews and testimony must be obtained fi-om 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 employed, or the mental state which enabled the individual to perpetrate the crime. 

Some highlights of the financial crimes cases prosecuted by the Economic Crimes Division in 
Fiscal Year 1997 include: 

Commonwealth v. Jeffrey Gruber . Norfolk Superior Court 

This case involves a former John Hancock agent and Sharon resident who plead guilty to pending 
charges for stealing clients' money, many of whom were elderly, totaling approximately $200,000. 
The charges included schemes between 1990 and 1991, where Gruber stole $194,000 fi-om four 
elderly clients who had entrusted him to invest their money and manage their financial affairs. Two 
of the clients were recent widows who had relied on their husbands to handle the family finances. 
The defendant plead guilty to the Norfolk case and received a committed sentence of 40 months in the ! 
House of Correction, with a from and after sentence of three years probafion and $195,000 in 
restitution. 

Commonwealth v. Albert Levesque . Bristol Superior Court 

This matter involved a former Metropolitan Insurance agent and financial advisor indicted for stealing 
over $190,000 by allegedly coercing an elderly widow into transferring assets into trust accounts from 
which he later embezzled. Levesque was indicted for three counts of fiduciary embezzlement, and if 
convicted, faces a maximum ten-year sentence in state prison for each count. 

Commonwealth v. William Gaines . Suffolk and Essex Superior Courts 



58 



This case involved a New Hampshire man sentenced to four to five years at MCI Cedar Junction for 
posing as a Boston PoHce Officer and romancing several young women in order to steal their money 
or credit. Gaines met one female victim in a Boston nightclub and convinced her that he was a Boston 
police officer. The defendant gained the trust of the victim through stories about his dealings as a 
police officer, displaying police-related paraphernalia and decals on his car. Among other schemes, 
the defendant tricked a victim into signing a car loan, cashed forged checks from a victim's bank 
account, and charged hundreds of dollars on a vicfim's credit card without her knowledge or consent. 

Commonwealth v. Algie Urbonas . Essex Superior Court 

This defendant, a former H.D. Vest broker and independent tax preparer, was indicted for allegedly 
convincing elderly tax clients to invest their life savings in sham investments totaling approximately 
$300,000. Urbonas was charged with ten counts of larceny over $250, ten counts of securities fraud, 
and ten counts of offering the sale of unregistered securities. Upon conviction, Urbonas could face 
multiple years of state prison time for these offenses. 

Commonwealth v. Michael Daoud . Middlesex Superior Court 

This matter involves a Weston man who plead guilty to two counts of larceny over $250, two counts 
of fraudulent sales and purchases, and two counts of failure to comply with the investment adviser 
registration requirement. Although he never registered with the state, Daoud posed as a registered 
investment adviser to a woman from Newton and another from Waltham, took their money, and then 
spent it on personal expenses such as Celtics season fickets, cash withdrawals at casinos, rent and 
personal debts, all occurring over a two-year period. He was sentenced to two and one-half years in 
the House of Correction, suspended for four years, one year of home confinement on the bracelet 
program, supervised probation, restitution and community service. 

Commonwealth v. Jeffrey Maniff . Norfolk Superior Court 

This matter involves an Easton man charged with allegedly stealing more than $300,000 from an 
elderly woman who lives in a nursing home. Maniff was indicted on 13 counts of larceny over $250, 
and five counts of securities fraud. The indictments allege that Maniff, an accountant and 
businessman who ran a luxury auto leasing operation, befiiended two elderly women, ages 97 and 90, 
who currently live together in a Canton nursing home. He offered to perform tax work and banking 
transactions for them. If convicted, Maniff faces a maximum five-year state prison sentence for each 
larceny count, and a three-year state prison sentence for each securities fraud count. 



B. Tax Prosecutions 

Although each assistant attorney general in the Economic Crimes Division handles a caseload 
including tax cases, one assistant attorney general, Lori Balboni, with the assistance of one special 
assistant attorney general, Andy Zaikis, concentrates ftxU time on this subject area. In Fiscal Year 
1997, the Tax Prosecution Unit litigated a significant number of cases in the criminal courts and 
conducted several long-term investigations of suspected tax crimes. Many cases were referred to the 



59 



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 FY97, particularly in the areas of analysis, documentation and witness interviews. 
Additional cases were developed by the Tax Prosecution Unit as a result of referrals from other 
agencies. 

In April, 1997, the Economic Crimes Division turned its collective efforts towards preparing 
for and completing the annual "Tax Sweep" initiative with the Criminal Investigations Bureau of the 
Department of Revenue. With the team work of the CIB investigators and the AAGs and SAAGs 
working within the Economic Crimes Division, the Grand Jury presentations that comprised Tax 
Sweep '97 was completed on April 4, 1997. The resulting efforts of both offices consisted of 86 
counts of tax violations returned by the Grand Jury against 18 targets for a total of 8.5 million dollars 
in unreported taxable sales or income. 

This "Tax Sweep" year improved upon last year's efforts in the number of targets, the total 
amount of tax liability, and the seriousness of tax cases charged. The targeted group of tax offenders 
comprised a showing of one of the most diverse group of individuals and corporations ever pursued 
for this annual effort, demonstrated by the backgrounds of the offenders, and the combined amount of 
unreported taxes. 

During this fiscal year, 28 new cases were charged in the Superior Courts throughout the 
Commonwealth, with 26 pending cases being successfully prosecuted to completion. A few of the 
tax cases prosecuted by the Division are highlighted below. 

Commonwealth v. Stefan Solvell . Suffolk Superior Court 

United States v. Lars Bildman . United States District Court 

(State & Federal Tax Prosecution) 

A joint prosecutorial effort, this matter involves a former president and CEO of Astra, U.S.A. Inc., an 
international pharmaceutical company, and his second in command, for allegedly using company 
money to pay for family vacations and personal expenses in excess of one million dollars. The ! 

schemes alleged by the government include billing the company for personal expenses of Bildman, 
the CEO, such as renovations to personal real estate, extravagant family vacations, and the hiring of 
prostitutes. Bildman also failed to report as income on his Federal and state tax returns amounts paid 
by the company for which he benefitted personally. 

Commonwealth v. Robert Lockwood. et. al . Suffolk Superior Court 

This matter involved a Beverly Farms man, Robert Lockwood, indicted for multiple criminal tax 
charges involving withholding and meals tax evasion, filing false meals tax and excise tax returns, 
and failing to file corporate tax returns. The charges allege that over $6,000,000 dollars in taxable 
meals and wages were not accounted for by Lockwood in which over $300,000 in taxes were owed to 
the state. 

Commonwealth v. Robert Parker . Suffolk Superior Court 



60 



After a month-long trial, this defendant was found guilty of 66 counts larceny and false claims to the 
Commonwealth involving a tax scheme perpetrated from his prison cell. He was sentenced to four to 
five years of committed time in state prison, to be served from and after his federal sentence. 

Non-Case Related Initiatives of the Economic Crimes Division 

National Association of Attorneys General Committee member on Elder Issues and Initiatives 
(AAG Starkey) 

Committee member of Attomev General's Task Force on Racial & Ethnic Bias in the Courts 
(AAG Hartry) 

Supervisor for Economic Crimes Division Interns (AAG Hartry) 

Speaker/Lecturer for Office of the Attorney General training on Criminal Rules of Procedure 
(AAG Starkey) 

Panelist for the New England Bar Association's Conference on "The Unauthorized Practice of 
Law" (AAG Starkey) 

Speaker for the Association of Certified Fraud Examiners. Boston Chapter on "The 
Prosecution of White Collar Crime" (AAG Starkey) 

Speaker for Insurance Fraud Seminar on Auto Glass Fraud (AAG Brekka) 

Committee Member, Women's Legal Defense Fund (AAG Hartry) 

Speaker/Instructor for the Office of the Attorney General Training Committee on the topic of 
"Direct Examination of Summary Witness" (AAG Starkey/Investigator Stewart) 

Speaker at The Northeast Security Exchange on "Prosecuting White Collar Crime: How Can 
The Small Banker Be Preventive?" (AAG Starkey) 

Critiquer for the Office of the Attorney General's Trial Training Academy (AAG Starkey) 

Speaker for the Braintree Knights of Columbus on "White Collar Crime: Prosecufion & 
Prevention" (AAG Starkey) 

Appointed Committee Member for the Supreme Judicial Court Committee On Lawyer 
Advertising (AAG Starkey) 

Compiled and wrote White Collar Crime Report for the Office of the Attorney General (AAG 
Starkey) 

Speaker for Delegation of Russian Law Enforcement Officials (AAG Starkey) 



61 



IV. CASES CHARGED BY THE ECONOMIC CRIMES DIVISION 
FISCAL YEAR 1997 

A. New Indictments and Complaints 

Indictment 
Date Case 

7/96 Commonwealth v. William T. Gaines (Larceny Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: The defendant was indicted in multiple counties 
for posing as a cop and romancing several woman in order to steal their money or 
credit. 

CHARGES: 1 Count Larceny Over $250; 1 Count Larceny by False Pretenses of 
Credit; 1 Count Forgery; 1 Count Uttering 

(AAG S. Patemiti) 

8/96 Commonwealth v. Norman Leavitt (Tax Prosecution) - Suffolk County ■ 

DEFENDANT DESCRIPTION: This defendant, a self-employed retailer of i 

furniture and appliances who operates out of his Bridgewater residence and j 

customers' homes, is alleged to have stopped filing returns and paying sales taxes in j 
1990, and not filing personal income tax returns for 4 years. Sales tax liability is 
approximately $24,000 and income tax liability approximately $8,000 for periods 
covered by indictments. 

CHARGES: 4 Counts Willful Failure to File State Income Tax Returns; 5 Counts 
Willfiil Failure to Account For & Pay Over Sales Taxes 

(AAG L. Balboni) 

8/96 Commonwealth v. Robert S. Zawadzki (Insurance/Larceny Prosecution) - Suffolk 

County 

DEFENDANT DESCRIPTION: This defendant is a Boston Police Officer who has 
been suspended without pay as a result of an alleged insurance scam he perpetrated. 

CHARGES: 1 Count Larceny; 1 Count Motor Vehicle Insurance Fraud; 1 Count 
Attempt to Commit a Crime 

(AAG K. Brekka) 



62 



Commonwealth v. Osbert Baker (Larceny Prosecution) - Middlesex County 

DEFENDANT DESCRIPTION: Defendant, Osbert Baker, the alleged boyfriend of 
defendant Karen Freeman noted below, assisted her in instigating the necessary steps 
to allegedly steal $68,000 through a check scheme from Filene's Basement. 

CHARGES: 1 Count Uttering a Forged Instrument; 1 Count Conspiracy; 1 Count 
Attempt to Commit a Crime 

(AAG K. Brekka) 

Commonwealth v. Karen Freeman (Larceny Prosecution) - Middlesex County 

DEFENDANT DESCRIPTION: Defendant Freeman is a former accounts payable 
supervisor for Filene's Basement, who, along with Osbert Baker, allegedly instigated 
and took the necessary steps to set up fictitious names and maildrops for the issuance 
of fraudulent checks. 

CHARGES: 1 Count Larceny; 1 Count Conspiracy; 1 Count Attempt to Commit a 
Crime 

(AAG K. Brekka) 

Commonwealth v. William T. Gaines (Larceny Prosecution) - Essex County 

DEFENDANT DESCRIPTION: As noted above, the defendant was indicted in 
multiple counties for posing as a cop and romancing several woman in order to steal 
approximately $20,000 in money or credit. 

CHARGES: 2 Counts Larceny Over $250; 1 Count Credit Card Fraud; 5 Counts 
Forgery; 5 Counts Uttering 

(AAG S. Patemiti) 

Commonwealth v. Sharon M. Mills (Insurance Fraud Prosecution) - Norfolk 
Coimty 

DEFENDANT DESCRIPTION: This defendant and her SOMBWA-certified 
asbestos removal corporation, Zam-Tek, Inc., allegedly committed workers' 
compensation fraud by providing false records understating her payroll to an 
insurance company auditor in two successive years, thus avoiding paying over 
$65,000 in insurance premiums. 

CHARGES: 1 Count Larceny Over $250; 1 Count Workers' Compensation Fraud 



63 



(AAG M. Parks) 
10/96 Commonwealth v. Zam-Tek. Inc. (Insurance Prosecution) - Norfolk County 

DEFENDANT DESCRIPTION: See Sharon Mills entry above. 
CHARGES: 1 Count Larceny Over $250; 1 Count Workers' Compensation Fraud 
(AAG M. Parks) 



10/96 Commonvyealth v. Michael Daoud (Securities Fraud/Larceny Prosecution) - 

Middlesex County 

DEFENDANT DESCRIPTION: This defendant was indicted for converting 
approximately $130,000 from several victims, some of whom were elderly. 

CHARGES: 2 Counts Larceny Over $250; 2 Counts Failure to Register; 2 Counts 
Fraudulent Sales & Purchases 

(AAG S. Hartry) 

1 1/96 Commonwealth v. Algie Urbonas (Securities Fraud/Larceny Prosecution) - Essex ; 

County 

DEFENDANT DESCRIPTION: This defendant, a former H.D. Vest broker and 
independent tax preparer, was indicted for allegedly convincing elderly tax clients to 
invest in sham investments totalling approximately $300,000. 

CHARGES: 10 Counts Larceny Over; 10 Counts Offer of Sale of Unregistered 
Securities; 10 Counts Securities Fraud 

(AAG S. Kelly) 

1 1/96 Commonwealth v. Maria Cavalho (Larceny Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This defendant was a former employee of Blue 
Cross Blue Shield who was indicted for allegedly manipulating the computer system 
to issue fraudulent benefit checks totalling $89,000. 

CHARGES: 3 Counts Larceny Over $250; 2 Counts forgery; 2 Counts Uttering 

(AAG S. Kelly) 



64 



Commonwealth v. Priscilla Martin (Receiving Stolen Property Prosecution) - 

Suffolk County 

DEFENDANT DESCRIPTION: This defendant was indicted for allegedly 
receiving the stolen money obtained by co-defendant Cavalho from Blue Cross/Blue 
Shield. 

CHARGES: 1 Count Receiving Stolen Property 

(AAG S. Kelly) 

Commonwealth v. Lorraine Mclver (Receiving Stolen Property Prosecution) - 

Suffolk County 

DEFENDANT DESCRIPTION: This defendant was also indicted for allegedly 
receiving the stolen money obtained by co-defendant Cavalho fi-om Blue Cross/Blue 
Shield. 

CHARGES: 1 Count Receiving Stolen Property 

(AAG S. Kelly) 

Commonwealth v. Robert Gatta. Jr. (Larceny and Insurance Fraud Prosecution) - 

Middlesex County 

DEFENDANT DESCRIPTION: This defendant is alleged to have deliberately 
inflicted damage to his truck by pulling a beam from a ceiling and causing a roof to 
collapse on top of it, then filing a $10,000 insurance claim. 

CHARGES: 1 Count Larceny Over $250; 1 Count Malicious Destruction of 
Property Over $250; 1 Count Fraudulent Insurance Claim 

(AAG S. Hartry) 

Commonwealth v. George Tsengas (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This defendant was president of Art-in-Stone, 
Inc., which sold decorative stone both at wholesale and retail. During the years 1990 
through 1994, the company allegedly collected over $22,000 in sales tax on retail 
sales of over $440,000, but never filed returns or paid the money to the DOR. 

CHARGES: 15 Counts Willful Failure to Account for and pay Over Sales Taxes 

(AAG M. Parks) 



65 



1/97 



3/12/97 



3/13/97 



Commonwealth v. Art-in-Stone (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: See George Tsengas entry above. 

CHARGES: 1 5 Counts Willful Failure to Account for and pay Over Sales Taxes 

(AAG M. Parks) 

Commonwealth v. Albert Levesque (Embezzlement Prosecution) (ELDERLY 
VICTIMS) - Bristol County 

DEFENDANT DESCRIPTION: This case involves a former Metropolitan 
Insurance agent and financial advisor indicted for stealing over $190,000 by allegedly 
coercing an elderly widow into transferring assets into trust accounts from which he 
allegedly then embezzled for his own personal use. 

CHARGES: 3 Counts Fiduciary Embezzlement 

(AAG S. Kelly) 

U.S. V. Lars Bildman (Tax Prosecution) (State & Federal Prosecution) - Federal 
District Court of Massachusetts 

DEFENDANT DESCRIPTION: A joint prosecutorial effort, this matter involves a 
former president and CEO of Astra, USA, Inc., an international pharmaceutical 
company. The defendant defrauded the company of an excess of $1 million dollars. 
The schemes alleged by the government include billing the company for personal 
expenses of Bildman, such as renovations to personal real estate, extravagant family 
vacations, and the hiring of prostitutes. Bildman also failed to report as income on 
his Federal and state tax returns amounts paid by the company for which he benefitted' 
personally. 

CHARGES: 35 Coimts including: Conspiracy; Mail Fraud; Wire Fraud; False Tax 
Returns; Interstate Travel in Furtherance of an Illegal Activity Prostitution 

(AAGs L. Balboni/C.Starkey) 

Commonwealth v. Stefan Solvell (Tax Prosecution) - Suffolk Coimty 

DEFENDANT DESCRIPTION: Related to prosecution of Lars Bildman, this 
former Senior Vice President of Astra, USA, Inc. Company was defrauded into 
paying for personal expenses of Solvell for which he failed to report on his 
Massachusetts income tax return. 

CHARGES: 1 Count Filing False State Income Tax Return 



66 



(AAGs L. Balboni/C.Starkey) 

Commonwealth v. Jeffrey Maniff (Larceny Prosecution) - Norfolk County 

DEFENDANT DESCRIPTION: Former tax preparer and financial adviser who 
allegedly stole $345,000 from two elderly woman. 

CHARGES: 13 Counts Larceny Over $250 

(AAGs S. Kelly/S. Patemiti) 

Commonwealth v. Paul Cacchiotti (Extortion/Tax Prosecution) - Middlesex 
County 

DEFENDANT DESCRIPTION: This case involves a CPCS attorney who 
attempted to extort money from indigent defendants while being paid by the 
Commonwealth for legal services he provided. In addition, he allegedly failed to 
report on his income tax returns legal fees that he had earned from private clients. 

CHARGES: 4 Counts Attempted Extortion; 1 Count Larceny Over; 3 Counts Tax 
Evasion; 3 Counts Filing False Income Tax Returns 

(AAGs L. Balboni/A. Lawlor) 

Commonwealth v. Arthur Stephen Lane (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Arthur Stephen Lane, 47, of Groton was indicted 
on 5 counts of Willful Filing of False Income Tax Returns for the years 1991 through 
1995. It is alleged that Lane filed false tax returns with the state for each of these 
years during which he made over $547,000 in income, owing over $32,000 in state 
taxes. 

CHARGES: 5 Counts Willftal Filing of False income Tax Returns 

(SAAG A.Zaikis) 

Commonwealth v. Paul M. MacDonald (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Paul MacDonald, 59, of Wobum was indicted on 
5 counts of Willfril Filing of False Income Tax Returns for the years 1991 through 
1995. It is alleged that MacDonald filed false tax returns with the state for each of 
these years during which he made over $373,000 in income, owing over $19,000 in 
state taxes. 

CHARGES: 5 Counts of Willftxl Filing of False Income Tax Returns 



67 



(SAAG A.Zaikis) 

3/3 1 191 Commonwealth v. Paul E. Hardy (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Paul E. Hardy, 58 of Andover was indicted on 3 
counts of Willful Filing of False Income Tax Returns for the years 1991 through 1993 
and 2 counts of Failing to File State Income Tax Returns for the years 1994 and 1995 
It is alleged that Hardy either filed false tax returns with the state or failed to file any 
return at all for each of these years during which he made over $115,000 in income, 
owing over $7,000 in state taxes. 

CHARGES: 3 Counts of Willful Filing of False Income Tax Returns; 2 Counts of 
Failing to File State Income Tax Returns 

(SAAG A.Zaikis) 

3/3 1/97 Commonwealth v. Carroll Lowenstein (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Carroll Lowenstein, 67, of Arlington was indicted 
on 5 counts of Failure to File State Income Tax Returns and 2 counts of Willful 
Failure to File Corporate Excise Tax Returns. It is alleged that Lowenstein failed to 
file income tax returns for each of the years 1990 through 1994 during which he made 
over $210,000 in income, owing over $12,000 in state taxes. He is also alleged to 
have failed to file corporate tax returns for two corporations that he was involved 
with, the BOMO Corporation and Fairway Fvmding Services, Inc. 

CHARGES: 5 Counts of Failure to File State Income Tax Returns; 2 Counts of 
Willful Failure to File Corporate Excise Tax Returns 

(SAAG A.Zaikis) ' 

3/31/97 Commonwealth v. Robert E. Lock wood (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Robert E. Lockwood, 48, of Beverly Farms was 
indicted on multiple criminal tax charges involving withholding and meals tax 
evasion, filing false withholding and excise tax returns, failing to file corporate excise 
tax returns and failure to file income tax returns. It is alleged that Lockwood, who 
operates a number of corporations, failed to pay over collected meals taxes on 
restaurants that he owned, failed to pay over withholding wages that he paid 
employees, failed to file corporate excise tax returns for many of his companies and 
that he filed, or aided and assisted in the filing of false tax documents. According to 
the Attorney General's Office, over $6,000,000 dollars in taxable meals and wages 
were not accounted for by Lockwood in which over $300,000 in taxes were owed to 
the state. 



68 



CHARGES: 1 Count Willful Attempt to Evade and Defeat Withholding Taxes; 1 
Count Willful Failure to Account For and Pay Over Withholding Taxes; 1 Count 
Willful Failure to Account For and Pay Over Meals Taxes; 1 Count Willful Filing of 
False Excuse Tax Returns; 1 Count Aiding and Assisting in the Willful Filing of 
False Withholding Tax Returns; 3 Counts Willful Failure to File State Income Tax 
Returns; 5 Counts Wilful Failure to File Corporate Tax Returns 

(SAAG A.Zaikis) 

3/31/97 Commonwealth v. Robert J. Kelley (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Robert J. Kelley, 59, of Wellesley was indicted on 
multiple criminal tax charges involving withholding and meals tax evasion, filing 
false withholding and excise tax returns, and failing to file corporate excise tax 
returns. It is alleged that Kelly, who worked as an accountant for Robert Lockwood 
and his various corporations, failed to pay over collected meals taxes from 
restaurants, failed to pay over withholding on wages that were paid to employees, 
failed to file corporate excise tax returns for many of these companies and that he 
filed false tax documents with the state. 

CHARGES: I Count Willful Attempt to Evade and Defeat Withholding Taxes; I 
Count Wilful Failure to Account For and Pay Over Withholding Taxes; 1 Count 
Willful Failure to Account For and Pay Over Meals Taxes; 3 Counts Willful Failure 
to File Corporate tax Returns 

(SAAG A.Zaikis) 

3/31/97 Commonwealth v. 33 Dunster Street. Inc. (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Indictments were returned against corporation for 
its involvement in the various schemes charged in the Robert Lockwood 
investigation. 

CHARGES: 1 Count Willful Failure to Account For and Pay Over Withholding 
Taxes; I Count Willful Filing of False Excise Tax Return; 1 Count Willful Failure to 
File Corporate Tax Returns 

(SAAG A.Zaikis) 

3/31/97 Commonwealth v. BOMO Corporation (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Indictments were returned against corporation for 
its involvement in the various schemes charged in the Robert Lockwood 
investigation. 



69 



CHARGES: 1 Count Willftil Failure to Account For and Pay Over Meals Taxes; 1 
Count Willful Failure to File Corporate Tax Returns 

(SAAG A.Zaikis) 

3/3 1/97 Commonwealth v. Employment Leasing Inc. (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Indictments were returned against corporation for 
its involvement in the various schemes charged in the Robert Lockwood 
investigation. 

CHARGES: 1 Count Willful Failure to Account For and Pay Over Withholding 
Taxes; 1 Count Willful Failure to File Corporate Tax Returns 

(SAAG A.Zaikis) 

3/31/97 Commonwealth v. Tel Cel Corporation (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Indictments were returned against corporation for 
its involvement in the various schemes charged in the Robert Lockwood 
investigation. 

CHARGES: 1 Count Willful Failure to Account For and Pay Over Withholding 
Taxes; 1 Count Willful Failure to File Corporate Tax Returns 

(SAAG A.Zaikis) 

3/3 1/97 Commonwealth v. Liquidators Corporation (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Indictments were returned against corporation for 
its involvement in the various schemes charged in the Robert Lockwood 
investigation. 

CHARGES: 1 Count Willful Failure to Account For and Pay Over Withholding 
Taxes; 1 Count Willful Failure to File Corporate Tax Returns 

(SAAG A.Zaikis) 

3/31/97 Commonwealth v. National Communications. Inc. (Tax Prosecution) - Suffolk 

County 

DEFENDANT DESCRIPTION: Indictments were returned against corporation for 
its involvement in the various schemes charged in the Robert Lockwood 
investigation. 



70 



CHARGES: 1 Count Willful Failure to Account For and Pay Over Withholding 
Taxes; 1 Count Willful Filing of False Withholding Tax Returns 

(SAAG A.Zaikis) 

Commonwealth v. Christopher M. Butler (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This defendant allegedly failed to file income tax 
returns for the years 1990 through 1994, while earning a substantial income. 

CHARGES: 5 Counts Willful Failure to File State Income Tax Returns 

(AAG S. Hartry) 

Commonwealth v. Eric H. Thomson (Tax Prosecurion) - Suffolk County 

DEFENDANT DESCRIPTION: This Defendant was a construction industry 
lobbyist with income ranging from $35,000 - $47,000 per year for each of the years 
1990-1996, as documented by filings with the Secretary of State's office. He has filed 
no tax returns since 1 979. The tax liability alleged for the indicted years is 
approximately $13,000. 

CHARGES: 6 Counts Willful Failure to File a State Income Tax Returns 

(AAG M. Parks) 

Commonwealth v. Joseph Jaskulski (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This Partner in business engaged in a retail sale of 
computers and computer accessories. Sales tax returns filed with DOR reported zero 
gross sales and zero tax due. Gross Massachusetts sales are alleged to be in excess of 
$100,000. 

CHARGES: 1 Count Failure to Account For and Pay Over Sales Tax; 4 Counts 
Filing False Sales Tax Returns 

(AAG L. Balboni) 

Commonwealth v. Donald Pratt (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This President and treasurer of three Subway 
sandwich shops in New Bedford area allegedly charged and collected meals taxes 
from customers, yet failed to pay over to DOR the meals taxes he collected. The 
defendant also allegedly withheld state income taxes from employee wages, yet failed 



71 



to pay to DOR taxes withheld. Finally, over a three year period, the defendant 
allegedly failed to file corporate excise tax return for each corporation. 

CHARGES: 3 Counts Failure to Account For and Pay Over Meals Tax; 3 Counts 
Failure to Account For and Pay Over Withholding Taxes; 3 Counts Failure to File 
Corporate Excise Tax Returns 

(AAG L. Balboni) 

Commonwealth v. Subway Dartmouth. Inc. (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This Corporation operated a Subway sandwich 
shop in New Bedford area and allegedly failed to file Corporate excise tax returns for 
multiple years. 

CHARGES: 1 Count Failure to File Corporate Excise Tax Returns 

(AAG L. Balboni) 

Commonwealth v. Southeastern Food Management. Inc. (Tax Prosecution) - 
Suffolk County 

DEFENDANT DESCRIPTION: This Corporation operated a Subway sandwich 
shop in New Bedford area and allegedly failed to file Corporate excise tax returns for 
multiple years. 

CHARGES: 1 Count Failure to File Corporate Excise Tax Returns 

(AAG L. Balboni) 

Commonwealth v. Subway Rockdale. Inc. (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This Corporation operated a Subway sandwich 
shop in New Bedford area and allegedly failed to file Corporate excise tax returns for 
multiple years. 



CHARGES: 1 Count Failure to File Corporate Excise Tax Retums 

(AAG L. Balboni) 

Commonwealth v. Joseph Haven (Tax Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: The defendant, while collecting workers 
compensation payments, allegedly continued to work for his old company for two 
years while failing to report any of the under the table wages he was receiving. 



72 



CHARGES: 2 Counts Willful Filing of False Income Tax Returns 

(SAAG A. Zaikis) 

Commonwealth v. Edward B. Kaiser (Tax Prosecution) - Suffolk County 
DEFENDANT DESCRIPTION: The defendant is a dentist and self proclaimed tax 
protester who has not filed tax returns for the last 3 years. 

CHARGES: 3 Counts Wilful Failure to File State Income Tax Retums 

(SAAG A. Zaikis) 

U.S. V. Lars Magnusson (Conspiracy Prosecution) - Federal District Court of 
Massachusetts 

DEFENDANT DESCRIPTION: As a consultant to Lars Bildman, the former 
president and CEO of Astra, USA, an international pharmaceutical company, this 
defendant allegedly conspired and assisted Bildman in defrauding the company of in 
excess of $1 million. 

CHARGES: 1 Count Conspiracy to Commit Mail Fraud 

(AAG L. Balboni) 

Commonwealth v. Joseph Murray (Larceny Prosecution) - Middlesex County 

DEFENDANT DESCRIPTION: This defendant was indicted in multiple counties 
for several freight pick-ups which he allegedly completed through false 
representations. 

CHARGES: 2 Counts Larceny Over $250 

(AAG S. Kelly) 

Commonwealth v. Joseph Murray (Larceny Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION:This defendant was indicted in multiple counties 
for several freight pick-ups which he allegedly completed through false 
representations. 

CHARGES: 2 Counts Larceny Over $250 

(AAG S. Kelly) 

Commonwealth v. Joseph Murray (Larceny Prosecution) - Norfolk County 



73 



6/12/97 



6/25/97 



DEFENDANT DESCRIPTION: This defendant was indicted in multiple counties 
for several freight pick-ups which he allegedly completed through false 
representations. 

CHARGES: 1 Count Larceny Over $250 

(AAG S. Kelly) 

Commonwealth v. Edwin Kaplan (Insurance Fraud Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: Defendant was an affluent property owner who 
allegedly presented and assisted others in pursuing phony disability claims. 

CHARGES: 10 Counts Insurance Fraud; 6 Counts Larceny over $250 

(AAG M. Parks) 

Commonwealth v. Adam Kessler (Insurance Fraud Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This defendant was the son-in-law of Edwin 
Kaplan, above, who under Kaplan's tutelage, allegedly presented phony disability 
claims. 

I 
CHARGES: 1 Count Motor Vehicle Insurance Fraud I 

I 

(AAG M. Parks) 

Commonwealth v. Joseph Dutra (Larceny Prosecution) - Bristol County 

DEFENDANT DESCRIPTION: This case involves an insurance agent who 
allegedly embezzled premiums, effectively canceling his clients' coverage. The 
defendant also failed to return premium refund checks to customers. The total 
amount of the larceny is approximately $22,000. 

CHARGES: 7 Counts Larceny Over $250 

(AAG S. Hartry) 

Commonwealth v. Frank Bush (Receiving Stolen Property Over $250) - Middlesex 
County 

DEFENDANT DESCRIPTION: This case, a referral to this office by Digital 
Equipment Corporation, involves the theft of five computer memory boards worth 
$80,000 each totalling $400,000 which the defendant received, knowing them to have 
been stolen, and then sold them for profit. 



74 



CHARGES: 5 Counts Receiving Stolen Property Over $250 

(AAG S. Hartry) 

6/3/97 Commonwealth v. David Brock (Larceny Prosecution) - Suffolk County 

DEFENDANT DESCRIPTION: This defendant, a former employee of Putnam 
Investments, is alleged to have entered a Putnam facility in Quincy and transferred 
$50,000 from a client account into his own account, then attempting to wire $40,000 
of the money to his Shawmut Bank account. 

CHARGES: 1 Count Larceny Over $250 

(AAG S. Patemiti) 

V. CASES DISPOSED FISCAL YEAR 1997 

A. Convictions & Dispositions 

Conviction 

Date Case Description 

7/96 Commonwealth v. Robert A. Russo (Tax Prosecution) - Suffolk Superior Court 

(AAG L. Balboni) 

JUDGE: Borenstein REFERRAL: DOR 

CHARGES: 8 Counts Willful Filing Of False Income Tax Return; 7 Counts 
Larceny Over $250; 1 Count Attempted Larceny 

SENTENCE: The defendant plead guilty to all charges and was sentenced to 2 
years committed in the HOC. $50 Victim/witness fee. 

7/96 Commonwealth v. Mark Gauthier (Larceny Prosecution) - Middlesex Superior 

Court (AAGs S. Kelly/S. Patemiti) 
JUDGE: Houston REFERRAL: N/A 

CHARGES: 1 Count Larceny Over $250 Obtaining Signatures by Obtaining 
Signatures by False Pretenses; 2 Counts False Pretenses Obtaining Signatures by 
False Pretenses; 1 Count Forgery; 1 Count Uttering 

SENTENCE: The defendant was found guilty on all counts after a jury trial and was 
sentenced to 18 months in the HOC, 6 months to serve, balance suspended for 5 
years. $30,000 Restitution also ordered. $60 Victim/witness fee. 

7/96 Commonwealth v. Nancy Gondii (Larceny Prosecution) - Middlesex Superior 

Court (AAG S. Kelly) 
JUDGE: Neel REFERRAL: N/A 



75 



CHARGES: 1 Count Larceny Over $250; 15 Counts Forgery; 15 Counts Uttering; | 
1 5 Counts False Entry in Corporate Books 

SENTENCE: The defendant was sentenced to 3 months in the HOC committed, 
$ 1 ,000 restitution per year for 1 years, with 1 years probation on and after she 
served her committed sentenced. Drug evaluation, treatment, testing, and periodic 
sworn financial statements to be submitted to probation. $60 Victim/witness fee. 

Commonwealth v. David Porter (Tax Prosecution) - Suffolk Superior Court (SAAG 

A. Zaikis) 

JUDGE: Lauriat REFERRAL: DOR 

CHARGES: 8 Counts Willftil Failure To Account For 8c Pay Over Withholding 

Taxes. 

SENTENCE: Following a week-long trial, the defendant was found guilty on four 
of the eight counts. He was placed on probation for a period of 1 8 months. 

Commonwealth v. Leonard Amaral (Tax Prosecution) - Suffolk Superior Court 

(AAG L. Balboni) 

JUDGE: Quinlan REFERRAL: DOR 

CHARGES: 4 Counts Willftil Failure to File State Income Tax Returns 

SENTENCE: Sentence imposed on guilty plea to all counts of 9 months HOC, 

suspended for 5 years probation with the following conditions: (a) defendant must 

provide to probation department a copy of income tax return filed with DOR by April 

16th of each year during probationary period; (b) $50 victim/witness fee; and (c) $45 

per month probation supervision fee. 

Commonwealth v. Steve Button (Tax Prosecution) - Suffolk Superior Court (AAG 

L. Balboni) 

JUDGE: Quinlan REFERRAL: DOR 

CHARGES: 5 Counts Willftil Failure to File State Income Tax ReUims; 1 Count 
Willful Failure to Account For & Pay Over Sales Taxes 
SENTENCE: Unagreed plea recommendation before Judge Quinlan. Sentence 
imposed on guilty plea to 3 years probation, with the following conditions: (a) 500 
hours of community service to be determined by probation (b) $5,000 criminal fine 
(can be converted to community service at discretion of probation department) 
payable within 3 year probationary period (c) $60 victim/witness fee and (d) $45 per 
month probation supervision fee. Guilty plea to 5 counts of Willful Failure to File 
State Income Tax Returns placed on file. 

Commonwealth v. Demetrios Kostantopoulos (Tax Prosecution) - Suffolk Superior 

Court (SAAG A. Zaikis) 

JUDGE: Volterra REFERRAL: DOR 

CHARGES: 33 Counts Willftil Filing of False Meals Tax Returns; 3 Counts Willftil 

Filing Of False Income Tax Returns 



76 



SENTENCE: The defendant plead guilty to the 3 counts of filing false income tax 
returns and was placed on probation for 1 year, given 3 months of house arrest and 
ordered to pay a $5,000 fine. $50 Victim/witness fee. 

Commonwealth v. Carole Caron (Tax Prosecution) - Suffolk Superior Court 

(SAAG A. Zaikis) 

JUDGE: Connolly REFERRAL: DOR 

CHARGES: 1 Count Willful Failure to Account For And Pay Over Sales Taxes 
SENTENCE: The defendant plead guilty to the charges and was placed on 18 
months of probation, ordered to pay a criminal fee of $5,000 and further ordered to 
perform 300 hours of community service at a local nursing home during her probation 
period. $50 Victim/witness fee. 

Commonwealth v. Scott Sutherland (Tax Prosecution) - Suffolk Superior Court 

(AAG S. Kelly) 

JUDGE: Volterra REFERRAL: DOR 

CHARGES: 2 Counts Evasion; 1 Count Failure to Account For and Pay Over Sales 
Tax; 4 Counts Filing False Tax Returns 

SENTENCE: The defendant was sentenced to 1 year HOC suspended for 2 years, 
with 2 years of probation, and a $12,000 fine - $3,000 surfine. Sentence concurrent 
on all counts. Order to cooperate with DOR Civil Audit and Recovery. $60 
Victim/witness fee. 

Commonwealth v. John M. Burgess (Larceny Prosecution) - Norfolk Superior 

Court (AAG M. Parks) 

JUDGE: Grabau REFERRAL: N/A 

CHARGES: 12 Counts Larceny Over $250; 3 Counts Conspiracy 
SENTENCE: Defendant sentenced to 3.5 years - 3.5 years + 1 day MCI Cedar 
Junction, committed, followed by 5 years probation with restitution. 

Commonwealth v. Michael Avella (Larceny Prosecution) - Suffolk Superior Court 

(AAG S. Hartry) 

JUDGE: Lauriat REFERRAL: N/A 

CHARGES: 13 Counts Larceny Over $250 

SENTENCE: The defendant was sentenced to 2 years in the HOC, 6 months to 

serve, balance suspended for 2 years on Count 1 . On Count 2 he was sentenced to 2 

years in the HOC, suspended for 3 years probation, alcohol/psychological counseling, 

and $25,000 restitution to the Museum of Fine Arts. Covmts 3-1 3 are to run 

concurrent with Count 1 . $60 Victim/witness fee. 

Commonwealth v. Harriet J. Roberts (Larceny/Tax Prosecution) - Norfolk Superior 
Court (AAG M. Parks) 

JUDGE: Chemoff REFERRAL: N/A 



77 



CHARGES: 4 Counts Larceny Over $250; 4 Counts Wilftil Filing False Income Tax 

Return 

SENTENCE: The defendant was sentenced to 2.5 years in the HOC, suspended for t 

years; Conditions of probation to be the following: 6 months Home Confinement, 

Restitution in amount to be determined by the Probation Department. $60 

Victim/witness fee. 

Commonwealth v. Manuel Reposa/Commonwealth v. L.H. Burlingame. Inc. (Tax 
Prosecution) - Suffolk Superior Court (AAG L. Balboni) 
JUDGE: Borenstein REFERRAL: DOR 

CHARGES: 1 Count Willful Failure to Account For & Pay Over Withholding 
Taxes; 1 Count Willful Failure to Account For & Pay Over Sales Taxes; 1 Count 
Failure to File Corporate Excise Tax Returns (Reposa and corporation) 
SENTENCE: The defendant plead guilty to all indictments before Judge Quinlan on 
an unagreed plea. Greatly reducing the Commonwealth's recommendation, the court 
sentenced the defendant to 3 years probation concurrent on all counts, $60 
Victim/witness fee, $40 probation supervision fee. Guilty plea on behalf of 
corporation placed on file. $60 Victim/witness fee. 

Commonwealth v. Robert Parker (Tax Prosecution) - Suffolk Superior Court 
(SAAG A. Zaikis) \ 

JUDGE: Doerfer REFERRAL: N/A I 

CHARGES: 6 Counts Larceny Over $250; 1 Count Conspiracy; 16 Counts 
Attempted Larceny; 22 Counts Presentation of A False Claim; 22 Counts Forgery 
SENTENCE: The case went to trial on October 7th before Judge Doerfer in Suffolk 
Superior Court. After one mistrial, the case continued towards completion for the 
better part of the month. After 3 days of deliberations, the jury came back with guilty 
verdicts on the 66 counts for which the defendant stood trial. He was sentenced to 4- 
5 years in state prison on and after his federal sentence. $50 Victim/witness fee. 

Commonwealth v. Clinton Pina (Insurance/Larceny Prosecution) - Bristol 

Superior Court (AAG M. Parks) 

JUDGE: Brassard REFERRAL: IFB 

CHARGES: 2 Counts Larceny Over $250; 3 Counts Automobile Insurance Fraud 
SENTENCE: 1 8 months HOC, suspended for 2 years; conditions of probation are as 
follows: (a) restitution of $2,864.70. $60 victim/witness fee. 

Commonwealth v. Michael Daoud (Larceny Prosecution) - Middlesex Superior 

Court (AAG S. Hartry) 

JUDGE: Chemoff REFERRAL: N/A 

CHARGES: 2 Counts Larceny Over $250; 2 Counts Sales and Purchases; 2 Counts 

Registry Requirement; 2 Counts Registry Requirement 

SENTENCE: Defendant was sentenced to 2 years in the HOC, service to be done on 

bracelet program, restitution of $47,534.99 paid forthwith to the victim, $5,000 fine 

on each larceny count. A further sentence of 2 years in the HOC, suspended, with 3 



78 



years probation, from and after the above charges, was ordered along with 200 hours 
of community service, refraining from any occupation requiring the sales and 
purchases of securities or investment advice, and undergoing evaluation for 
coimseling, if necessary, on all other counts. $50 Victim/witness fee. 

Commonwealth v. London & Global (Larceny Prosecution) - Suffolk Superior 

Court (AAG K. Brekka) 

JUDGE: Connolly REFERRAL: N/A 

CHARGES: 1 Count Larceny Over $250; 1 Count Bucketing; 1 Count Securities 
Fraud; 1 Count False Corporate Records; 1 Count Conspiracy 
SENTENCE: On October 3, 1996, the defendant was sentenced to restitution of 
$1,100,460.79. The Commonwealth seized $146,162.20 on November 8, 1996, and 
the money was submitted to Department of Probation for distribution to the victims. 

Commonwealth v. Constance Spares (Larceny Prosecution) - Bristol Superior 

Court (AAGs C.Starkey/S. Kelly) 

JUDGE: Healy REFERRAL: Bristol D.A.'s Office 

CHARGES: 2 Counts Larceny Over $250; 4 Counts Forgery; 5 Counts Failure to 

File Tax Returns 

SENTENCE: The defendant was sentenced to 2 years HOC, 6 months to serve 

balance suspended for 4 years; $50,000 restitution to be paid in compliance with 

detailed restitution schedule. $60 victim/witness fee. Defendant was also given a 

Stay Away order and order to cooperate with DOR. $60 Victim/witness fee. 

Commonwealth v. Edward Dwyer (Larceny Prosecution) - Brockton Superior 

Couurt (AAG K. Brekka) 

JUDGE: DelVecchio REFERRAL: N/A 

CHARGES: Larceny Over $250 

SENTENCE: The defendant, in violation of probation, was surrendered to a 4-5 

year committed sentence. 

Commonwealth v. Michael Daoud (Larceny Prosecution) - Middlesex Superior 

Court (AAG S. Hartry) 

JUDGE: Chemoff REFERRAL: N/A 

CHARGES: 2 Counts Larceny Over $250; 2 Counts Sales and Purchases; 
2 Counts Registry Requirement; 2 Counts Registry Requirement 
SENTENCE: Defendant sentenced to 2.5 years HOC, suspended for 4 years, 
1 year home confinement with the bracelet program, supervised probation, and 200 
hours of commimity service. He was also ordered to refrain from any occupation 
requiring sales and purchases of securities or investment advice, evaluation for 
counseling, with frill restitution. All other charges received concurrent sentences. 
$60 Victim/witness fee. 

Commonwealth v. Donald Constant (Tax Prosecution) - Suffolk Superior 
Court (AAG L. Balboni) 



79 



JUDGE: Ball REFERRAL: DOR 

CHARGES: 4 Counts Willful Attempt to Evade Income Taxes; 3 Counts Filing 
False Tax Returns; 5 Counts Willful Failure to Account For and Pay Over 
Withholding Taxes 

SENTENCE: The defendant was sentenced after unagreed guilty plea to 5 counts 
of failure to account for and pay over withholding taxes, 6 months HOC suspended, 
with 6 months probation. Condition of probation: 6 months home confinement 
monitored by electronic bracelet, cost of bracelet to be paid by defendant. Evasion 
and false filing indictments placed on file without change of plea. $50 victim 
witness fee. 

12/96 Commonwealth v. Zam-Tek. Inc. (Insurance Fraud Prosecution) - Norfolk 

Superior Court (AAG M . Parks) 

JUDGE: Barrett REFERRAL: IFB 

CHARGES: 1 Count Larceny Over $250; 1 Count Workers' Compensation Fraud 

SENTENCE: Defendant sentenced to 2 years probation, $66,000 restitution; 

larceny filed without change of plea. 

12/96 Commonwealth v. Sharon M. Mills (Insurance Fraud Prosecution) - Norfolk 

Superior Court (AAG M.Parks) 

JUDGE: Barrett REFERRAL: IFB 

CHARGES: 1 Count Larceny Over $250; 1 Count Workers' Compensation Fraud 
SENTENCE: Defendant sentenced to 2 years pretrial probafion, $20,000 court 
costs, community service; larceny filed without change of plea. 

1 2/96 DiPietro v. Coalter (Appeals Case) - First Circuit Court of Appeals 

(AAG M.Parks) 
JUDGES: Cyr, Stahl, Lynch 

CASE: Appeal of Dismissal of Writ of Habeas Corpus. Petifioner's motion for a 
certificate of appealability to the First Circuit was denied, thus precluding any 
fiirther appeal by petitioner of the dismissal of his writ of habeas corpus. 

12/96 Commonwealth v. Domingo Pena and Domingo's Olde Restaurant 

(Tax Prosecution) - Suffolk Superior Court (AAG K.Brekka) 
JUDGE: Ball REFERRAL: DOR 

CHARGES: 1 Count Willfiilly Evading Meals Taxes; 1 Count Failure to Pay 
Meals Taxes 

SENTENCE: Defendant sentenced to 2 years HOC, 6 months to serve through 
home confinement, balance suspended for 1 8 months. He also was ordered to be on 
supervised probation, with full cooperation with the DOR regarding financial 
penalties. 

1 2/96 Commonwealth v. Norman Leavitt (Tax Prosecution) - Suffolk Superior Court 

(AAG L. Balboni) 
JUDGE: Ball REFERRAL: DOR 



80 



CHARGES: 4 Counts Willful Failure to File State Income Tax Returns; 

5 Counts Willful Failure to Account For & Pay Over Sales Taxes 
SENTENCE: Defendant plead guilty to all counts. He received 1 year in the HOC, 
suspended, with 1 year supervised probation. Conditions of probation were the 
following: 1 month of 24 hour home confinement monitored by electronic bracelet, 
cost of bracelet to be paid by defendant. $10,000 criminal fine, $60 victim witness 
fee and probation supervision fee to be determined by probation. 

Commonwealth v. Arthur Stephen Lane (Tax Prosecution) - Suffolk Superior 

Court (SAAG A. Zaikis) 

JUDGE: Ball REFERRAL: DOR 

CHARGES: 4 Counts Willful Failure To File State Income Tax Returns 
SENTENCE: The defendant plead guilty to all charges and was ordered to pay a 
criminal fine of $15,000 and was placed on probation pending his payment of the 
fine in full. 

Commonwealth v. Richard J. Shaer (Tax Prosecution) - Suffolk Superior 

Court (AAG S. Hartry) 

JUDGE: Quinlan REFERRAL: DOR 

CHARGES: 4 Counts Wilful Failure To Pay Income Tax 

SENTENCE: On an unagreed upon plea. Defendant plead guilty and was 

sentenced to 3 years probation, $8,000.00 fine, and 80 hours of community service. 

$60 victim/witness fee. 

Commonwealth v. Stephen White (Larceny/Tax Prosecution) - Suffolk Superior 

Court (SAAG A. Zaikis) 

JUDGE: Quinlan REFERRAL: DOR 

CHARGES: 1 Count Willftil Filing of False Income Tax Returns; 1 Count 
Larceny; 1 Count Attempted Larceny; 1 Count Presenting False Claim 
SENTENCE: Defendant plead guilty to 4-2 years state prison, 24 months to serve, 
1 year probation. All other counts were guilty filed. 

Commonwealth v. Betty Lee Wing (Public Corruption Prosecution) - 

Suffolk Superior Court (AAG S. Kelly) 
JUDGE: Lopez REFERRAL: PID 

CHARGES: 1 Count Larceny; 3 Counts False Written Reports 
SENTENCE: This defendant was sentenced to 2 years HOC, suspended for 2 
years, with $26,000 restitution, and $16,000 in fines. Defendant was also ordered to 
pay a victim/witness fee, order to cooperate with Retirement Board to effectuate 
assignment/pledge of retirement and deferred compensation monies to satisfy 
restitution and fines imposed by court. 

United States v. Stephen Perrv (Mail and Wire Fraud) (ELDERLY VICTIMS) - 

Federal District Court (AAG S. Kelly) 



81 



JUDGE: Steams REFERRAL: SOS 

CHARGES: 1 Count Mail Fraud; 3 Counts Wire Fraud; 2 Counts Interstate 

Transportation of Stolen Property 

SENTENCE: The defendant was sentenced to 6 months of committed 

incarceration with judicial recommendation that he serve community service, attend 

community treatment center, with 36 months supervised probation, $108,357 

restitution, and ordered not to handling the solicitation of investment funds. $300 

Victim/witness fee. 

2/97 Commonwealth v. Scott F. Sidell (Tax Prosecution) - Suffolk Superior 

Court (SAAG A. Zaikis) 
JUDGE: Quinlan REFERRAL: DOR 

CHARGES: 4 Counts Willful Failure to File State Income Tax Returns 
SENTENCE: The defendant plead guilty to all of the charges and was ordered to 
pay a criminal fine of $12,000 and was placed on probation for 3 years. In addition, 
the defendant is still liable for the payment of all back taxes along with civil fines 
and penalties. $60.00 Victim/witness fee. 

2/97 Commonwealth v. Jeffrey Gruber (Larceny Prosecution) - Norfolk Superior 

Court (AAGs S. Patemiti/M. Dingle) 
JUDGE: Neel REFERRAL: N/A 

CHARGES: 5 Counts Larceny; 1 1 Counts Forgery; 1 1 Counts Uttering 
SENTENCE: Defendant was sentenced to 40 months HOC, 3 years probation from 
and after, with $195,000 restitution. $60.00 Victim/witness fee. 

2/97 Commonwealth v. Avino Resende (Insurance Fraud Prosecution) - Brockton 

District Court (AAGs K. Brekka/S. Hartry) 
JUDGE: Dineen REFERRAL: IFB 

CHARGES: 1 Count Filing False Motor Vehicle Insurance Claim; 1 Count 
Attempt to Commit a Crime 

SENTENCE: This matter was continued without a finding for 6 months, with 
court costs, over the Commonwealth's objecfions. $35.00 Victim/witness fee. 

2/97 Commonwealth v. Jose Araujo (Insurance Fraud Prosecution) - Brockton 

District Court (AAGs K. Brekka/S. Hartry) 
JUDGE: Dineen REFERRAL: IFB 

CHARGES: 1 Count Filing False Motor Vehicle Insurance Claim; 1 Count 
Attempt to Commit a Crime 

SENTENCE: This matter was continued without a finding for 6 months, with 
court costs, over the Commonwealth's objections. $35.00 Victim/witness fee. 

3/97 Commonwealth v. William T. Gaines (Larceny Prosecution) - Suffolk Superior 

Court (AAG S. Patemiti) 
JUDGE: Quinlan REFERRAL: Suffolk D.A.'s Office 



82 



CHARGES: 1 Count Larceny Over $250; 1 Count Larceny by False Pretenses of 
Credit; 1 Count Forgery; 1 Count Uttering 

SENTENCE: The defendant plead guilty to all of the charges and was sentenced to 
4-5 years MCI Cedar Junction committed forthwith, with 2 years probation from 
and after. $60.00 Victim/witness fee. 

Commonwealth v. James Sardina. Jr. (Narcotics Prosecution) - Norfolk Superior 

Court (AAG S. Hartry) 

JUDGE: Dortch-Okara REFERRAL: N/A 

CHARGES: 1 Count Trafficking in Cocaine 

SENTENCE: Defendant plead guilty and was sentenced to 5 years state prison. 

Victim/witness fee waived. Commonwealth's objection made. 

Commonwealth v. William Gaines (Larceny Prosecution) - Essex Superior 

Court (AAG S. Patemiti) 

JUDGE: Kratsley REFERRAL: Suffolk D.A.'s Office 

CHARGES: 2 Count of Larceny Over $250; 3 Counts Uttering; 

1 Count Credit Card Fraud; 12 Counts Uttering; 5 Counts Forgery 

SENTENCE: The defendant plead guilty to all of the charges and was sentenced to 

4-5 years MCI Cedar Junction concurrent with Suffolk County sentence, plus 

$ 1 ,200 restitution. $ 1 20.00 Victim/witness fee. 

Commonwealth v. Paul DeRoche (Tax Prosecution) - Suffolk Superior 

Court (AAG S. Kelly) 

JUDGE: Quinlan REFERRAL: DOR 

CHARGES: 4 Counts Willftil Failure to File State Taxes 

SENTENCE: Brendano Motion allowed, with 2 years probation, 400 hours 

community service, $6,000 in costs of prosecution probation supervision fee. 

Commonwealth v. Stefan Solvell (Tax Prosecution) - Suffolk Superior 

Court (AAG L. Balboni) 

JUDGE: Volterra REFERRAL: DOR 

CHARGES: 1 Count Willful Filing of False State Income Tax Retum 
SENTENCE: Joint recommendation imposed of 24 months HOC at South Bay 
suspended, 2 years unsupervised probation, $4,000 fine, $1,000 surfine. $60 
Victim/witness fee. 

Commonwealth v. George Tsengas (Tax Prosecution) - Suffolk Superior 

Court (AAG M. Parks) 

JUDGE: Volterra REFERRAL: DOR 

CHARGES: 1 Count Failure to Account For and Pay Over Sales Tax 
SENTENCE: Defendant sentenced to 2 years HOC, suspended for 2 years. 
Defendant also ordered to pay $8,000 fine plus $2,000 surfine, with order to pay all 
taxes, assessments, and penalties due to the Department of Revenue. Count 2-14: 
Guilty filed. $60 Victim/witness fee. 



83 



4/97 Commonwealth v. Art-in-Stone (Tax Prosecution) - Suffolk Superior 

Court (AAG M. Parks) 

JUDGE: Volterra REFERRAL: DOR 

CHARGES: 14 Counts Failure to Account For and Pay Over Sales Tax 
SENTENCE: Guilty filed. 

5/97 Commonwealth v. Lorraine Mclver (Larceny Prosecution) - Suffolk 

Superior Court (AAG S. Kelly) 
JUDGE: Ball REFERRAL: N/ A 

CHARGES: 1 Count Receiving Stolen Property 

SENTENCE: Defendant sentenced to 3 months HOC, suspended for 1 year of 
probation, with $3,800.00 in restitution. $60.00 Victim/witness fee. 

5/97 Commonwealth v. Anthony J. Gonsalves (Larceny Insurance Fraud Prosecution) 

Suffolk Superior Court (AAGs M. Parks/L. Balboni) 
JUDGE: Rivard-Rapoza REFERRAL: IFB 

CHARGES: 9 Counts Larceny Over $250; 9 Counts Motor Vehicle Insurance 
Fraud; 7 Counts Conspiracy; 2 Counts Attempted Larceny; 2 Counts Making False 
Representation in the Department of Public Welfare to procure support 
SENTENCE: The defendant plead guilty and was sentenced to 2 1/2 years in the 
HOC committed, with 5 years probation from and after his release. Special 
conditions of his probation are $25,000 restitution, drug and alcohol counselling, 
and that he not work in the insurance industry during the period of his probation. 
$60 Victim/witness fee. 

5/97 Gerald Femandes v. Commonwealth (Petition for Writ of Habeas Corpus) - 

Plymouth Superior Court (AAG S. Hartry) 

JUDGE: O'Brien 

SENTENCE: Judge O'Brien denied the petitioner's writ of habeas corpus. 



5/97 Commonwealth v. Jason S. Roberts (Larceny/Tax Prosecution) -Norfolk Superior 

Court (AAG M. Parks) 

JUDGE: DelVecchio REFERRAL: N/ A 

CHARGES: 4 Counts Larceny Over $250; 4 Counts Wilftil Filing of False Tax 

Returns 

SENTENCE: This defendant was sentenced to 2 years in the HOC, committed, with 

5 years probation, and an order of restitution in an amount to be determined by the 

probation department, consistent with defendant's ability to pay. All other counts 

were guilty filed. $60 Victim/witness fee. 

5/97 Commonwealth v. Priscilla Martin (Larceny Prosecution) - Suffolk Superior Court 

(AAG S. Kelly) 



84 



JUDGE: Chemoff REFERRAL: N/ A 

CHARGES: 1 Count Receiving Stolen Property 

SENTENCE: Defendant plead guilty. Sentencing is scheduled for September 19, 

1997. 

Commonwealth v. Linda Bell (Insurance Fraud Prosecution) - New Bedford 
Superior Court (AAG M. Parks) 

JUDGE: Rivard-Rapoza REFERRAL: IFB 

CHARGES: 3 Counts Larceny Over $250; 3 Counts Motor Vehicle Insurance 

Fraud; 1 Count Attempted Larceny; 5 Counts Conspiracy 

SENTENCE: Defendant ordered to serve 1 year in the HOC suspended, with 

probation for 2 years, and conditions of (1) restitution in the amount of $2,750.00 and 

(2) that she not work for an insurance agent, broker or company during the period of 

her probation. $60 Victim/witness fee. 

Commonwealth v. Dorothy Duarte (Insurance Fraud Prosecution) - New Bedford 
District Court (AAG M. Parks) 

JUDGE: Leonard REFERRAL: IFB 

CHARGES: 1 Count Motor Vehicle Insurance Fraud 

SENTENCE: This matter was continued without a finding for 6 months, with 85 

hours community service. Victim/witness fee waived by Judge. 

Commonwealth v. Wayne Charpentier (Insurance Fraud Prosecution) - New 
Bedford District Court (AAG M. Parks) 

JUDGE: Leonard REFERRAL: IFB 

CHARGES: 1 Count Motor Vehicle Insurance Fraud 

SENTENCE: Defendant sentenced to 1 year probation after a guilty finding. 

Victim/witness fee waived by Judge. 

Commonwealth v. Maria Carvalho (Larceny Prosecution) - Suffolk Superior Court 
(AAG S. Kelly) 

JUDGE: Chemoff REFERRAL: N/A 

CHARGES: 3 Counts Larceny; 2 Counts Forgery; 2 Counts Uttering 
SENTENCE: Defendant sentenced to 2 years HOC, 6 months to serve, balance 
suspended for 5 years. Defendant received concurrent sentences on all three counts. 
$70,800 restitution condiUon of probaUon, and 1 year on the ankle bracelet also 
ordered. Forgery/Uttering: 5 years probation fi-om and after committed time on 
Larceny. $60.00 Victim/witness fee. 

Commonwealth v. Ronald W. Amott (Larceny/Medicaid Fraud Prosecution) - 

Suffolk Superior Court (AAG S. Hartry) 



85 



JUDGE: McDaniel REFERRAL: N/A 

CHARGES: 4 Count Larceny Over $250; 5 Count Medicaid Fraud 
SENTENCE: Stayed execution of original sentence and amended restitution 
payments to $700 per month over the Commonwealth's objection. 

Commonvyealth v. Eric H. Thomson (Tax Prosecution) - Suffolk Superior Court 
(AAG M. Parks) 

JUDGE: DelVecchio REFERRAL: DOR 

CHARGES: 6 Counts Willful Failure to File State Income Tax Returns 
SENTENCE: This matter was continued without finding for 3 years, with 3 years 
supervised probation. Conditions: 250 hours community service, alcohol counselling; 
cooperate with Department of Revenue re taxes. 

Commonwealth v. Jason S. Roberts (Larceny/Tax Prosecution) - Suffolk Superior 
Court (AAG M. Parks) 

JUDGE: DelVecchio REFERRAL: N/A 

CHARGES: 4 Counts Larceny Over $250; 4 Counts Wilfiil Filing False State 

Income Tax Returns 

SENTENCE: Defendant sentenced to 2 years in the HOC, suspended for 2 years, 

with condition that defendant be under electronic monitoring throughout that 2-year 

period. 5 years' probation after release with condition of restitution in amount 

determined by probation department. 

Note: The previous sentence of 2 years in the HOC, committed, was revised and 
revoked by Judge DelVecchio over the Commonwealth's objection after Norfolk 
County Sheriff flood rejected the defendant as a candidate for Norfolk's electronic 
monitoring program based on (1) the nature of the offense, (2) the length of the 
commitment, and (3) the fact that he lived with a convicted felon (his wife and co- 
defendant, Harriet Roberts). 



86 



ENVIRONMENTAL STRIKE FORCE 

The Massachusetts Environmental Strike Force, which operates out of the Criminal Bureau in 
the Office of the Attorney General, is a collaborative effort of the Attorney General, the Secretary of 
Environmental Affairs, the Department of Environmental Protection, Environmental Police, and State 
Police to utilize available government resources in the service of enforcing the state's environmental 
laws. In addition to state agencies, the Strike Force also worked with the U.S. Environmental 
Protection Agency and U.S. Attorney's Office for the District of Massachusetts, pursuing joint 
state/federal environmental crimes investigations and prosecutions. 

During FY97, the Strike Force initiated criminal prosecutions against 1 8 individual and 
corporate defendants, and resolved cases against 12 defendants, all of whom were convicted. 
Significantly, the Strike Force successfully continued its use of crafting innovative environmental 
sentences upon criminal convictions. 

CRIMINAL CASE HIGHLIGHTS 

A. Cases Initiated in Fiscal Year 1997 

In two related cases of first impression. Commonwealth v. Consolidated Smelting and 
Refining Corp. and Commonwealth v. Lowell Fiengold . a Sutton, Massachusetts smelting company 
and its president were indicted for assault and battery by means of a dangerous weapon for allegedly 
exposing employees to hazardous lead dust in the workplace. Indictments were also returned for air 
pollution violations for alleged lead and cadmium emissions to the ambient air, and for several 
hazardous waste handling violations. The cases represent the first time assault and battery charges 
have been brought against an employer for exposing employees to hazardous materials. 

In Commonwealth v. My Van Nguyen , the first prosecution brought jointly by the Strike 
Force and the Boston Environmental Strike Team, the owner of a Boston triple-decker was indicted 
for illegal disposal of hazardous waste and water pollution violations in connection with the alleged 
discharge of home heating oil directly into the Boston sewer system. The discharge allegedly 
occurred when the owner sought to drain two home heating oil tanks during property renovations. 
The defendant was also indicted for air pollution violations in connection with the alleged illegal 
removal of asbestos. 

In Commonwealth v. William Potter , the president of a deftmct Winchendon manufacturing 
company was indicted for storage of hazardous waste in a manner which could endanger human 
health, safety, welfare and the environment, storing hazardous waste without a license, and engaging 
in activity which could have resulted in the discharge of a pollutant to groundwater. The defendant 
allegedly closed his company, leaving behind large quantities of uncontrolled hazardous wastes and 
other pollutants. 



B. Case Dispositions in Fiscal Year 1997 



87 



In Commonwealth v. Roland Parenteau . the president of a New Hampshire tree surgery 
company was convicted in Essex Superior Court of knowing disposal of hazardous waste without a 
license or manifest. The defendant hired an unlicensed transporter to remove his company's 
hazardous wastes. The wastes were illegally disposed of in a field in Salisbury, Massachusetts. The 
defendant was sentenced to two years in the House of Correction, suspended, with two years 
probation. He was also ordered to pay $21 ,092.67 in restitution to the Commonwealth for the cost of 
cleaning up the wastes, and was fined an additional $12,500. 

The case of Commonwealth v. Alan P. Stevens capped a joint state/federal prosecution. 
There, the defendant was convicted in federal court of wire fraud in connection with environmental 
testing and disposal of hazardous waste. Stevens purported to contract on behalf of laboratories to 
provide collection, testing and waste disposal services, knowing that such services would not be 
provided as represented and that resulting reports would be false and fraudulent. Drums of waste oil 
(including PCBs) collected by the defendant in connection with his scheme were dumped on 
unoccupied property in Peabody, Massachusetts. The defendant was sentenced to a year and a day in 
federal prison, and ordered to pay $7,467 in restitution to the victims of his fraud. 

In Commonwealth v. Ralph Worsencroft . the defendant was convicted of air pollution 
violations in connection with the illegal removal and storage of asbestos at several residential and 
commercial properties in the North Shore area. The defendant was sentenced to two years in the 
House of Correction, suspended for three years with probation, ordered to pay $4,000 in restitution to 
property owners who incurred additional costs because of the illegal removal, and ordered to pay for 
the legal disposal of 80 bags of asbestos waste which he illegally stored in a trailer. 

In Commonwealth v. Vermeer Sales and Service. Inc. . a Raynham landscaping company i| 
was convicted in Taunton District Court of failure to notify the Department of Environmental I 

Protection of an oil spill at its premises, and violating the Clean Water Act. When the company 
discovered that about 300 gallons of oil had leaked from a company tanker, it failed to notify DEP 
and covered up the spill with fresh soil. Some of the oil then ran into a stream and adjacent wetlands. 
The company, which cleaned up the spill after it was discovered by DEP, was ordered to pay a $6,250 
fine, and to perform community service by providing $18,000 worth of tree care equipment to the 
Bristol County Agricultural School. 

INNOVATIVE SENTENCING 

The Strike Force continues to be successful in its efforts to obtain innovative sentences 
intended to maximize the human health and environmental benefits of environmental law 
enforcement generally in the nature of requiring companies that commit environmental crime to pay 
for their acts in a manner beneficial to the public. In addition to forcing cleanups and obtaining 
restitution for cleanups paid for by the public or by innocent victims whose property was illegally 
polluted, sentences included the provision of tree care equipment to an agricultural school and 
community service involving cleanup and maintenance at a state park. 

Past creative sentencing efforts also continue to have beneficial effects. H.C. Starck, Inc., 
convicted in FY96 of illegal treatment of hazardous waste, completed its year-long environmental and 



88 



occupational safety audits, and substantially implemented corrective measures intended to bring the 
Newton manufacturer into compliance with all local, state, and federal environmental and 
occupational safety laws. The company trained its entire workforce in the safe handling of ignitable 
and reactive hazardous materials, and carried out management training in the effective 
implementation of environmental and safety standards. All of these activities were pursuant to 
Starck's sentence, and were subject to the review of the Strike Force. 

The Work Environment Justice Fund, created as a result of the Strike Force's 1994 
prosecution of a Somerville lead smelting company, granted its third annual awards to seed projects 
for improving workplace health and safety among low income workers. A total of $99,988.74 was 
awarded to 12 non-profit agencies across the state. 



89 



FINANCIAL INVESTIGATION DIVISION 

The Financial Investigation Division provides the Criminal Bureau with experienced civiiia 
investigative professionals who investigate and assist in the prosecution of white-collar criminal 
cases, particularly larcenies, public corruption, campaign finance violations, tax fi-aud and all other 
white collar frauds. There are nine investigators who bring to the Division multiple years of 
experience investigating cases in local, state, federal and private sector venues. Staff includes three 
Certified Fraud Examiners, two Certified Public Accountants, three lawyers, and one former 
securities investigator. 

The investigators assigned to this group work closely with Criminal Bureau prosecutors and 
also Massachusetts State Police assigned to the Criminal Investigations Division. Investigators may 
also be required to work on a case-by-case basis with investigative or audit personnel fi-om referring 
agencies such as the Securities Division of the Secretary of State's Office, the Board of Bar 
Overseers, the Criminal Investigations Bureau of the Department of Revenue, and the Office of the 
State Auditor. 

All invesfigators are responsible for designing and implementing investigative plans which 
assess allegafions of criminal conduct. To that end, investigators conduct interviews, analyze records 
obtained, and provide summary witness testimony before special grand juries and in trial settings. 
The investigators utilize a wide array of informational databases to track and profile potential subject! 
of criminal investigations. 

In addition to their acfive investigative caseloads, each investigator is responsible for 
screening some portion of the hundreds of inquiries and complaints received annually to ascertain 
whether the matter meets the guidelines of a respecfive division necessary to trigger an investigation. 

Financial Investigation Division staff work primarily with the Economic Crimes Division, 
the Public Integrity Division and the Narcotics and Special Investigations Division in the Criminal 
Bureau. The members of the Division for all or part of FY97 were: Brad Chase, Esq.; Peter Darling, 
Esq.; Ted Goble, Esq.; Bill Frugoli, CFE; Jim McFadden, CFE; John O'Connor, CPA; Michael 
O'Neil, CPA; Patrick Ormond, CPA; Kristen Vagos; and Paul Stewart, CFE, the Division's Director. 






90 



NARCOTICS AND SPECIAL INVESTIGATIONS DIVISION 

The Narcotics and Special Investigations (NSI) Division coordinates and prosecutes 
complex, multi -jurisdictional criminal cases targeting non-traditional organized criminal entities and 
career criminals. Additionally, the NSI Division investigates and prosecutes large-scale drug 
trafficking operations and individuals, as well as individuals involved in the illegal sale or possession 
of firearms. The Division further aids in the drafting of narcotics-related legislation and the 
development and implementation of community education and outreach programs. 

j Among the general categories of crimes the NSI Division investigated and prosecuted during 

"fiscal year 1996-1997 were the following: armed robbery, solicitation to commit murder, carjacking, 
arson, child pornography, weapons trafficking, narcotics trafficking, inducing a minor to distribute 
narcotics, prostitution, breaking and entering, larceny, receiving stolen property, assault and battery 
and uttering. During F Y97, the NSI Division initiated 1 1 8 criminal cases and disposed of 73 criminal 
cases. 

The Asset Forfeiture Unit, a subdivision of the NSI, pursues civil and criminal forfeiture and 
nuisance actions of property related to the sale, distribution and facilitation of drug-related offenses. 
Funds recovered by the Unit are disbursed in accordance with the Commonwealth's forfeiture laws. 
; A percentage of the amount forfeited is used for community-based drug awareness and education 
programs. 

In FY97, the Division's responsibilities greatly expanded. Specifically, two new major 
initiatives, one in the area of high technology crimes and the other in the area of arson prosecution, 
were launched. 

HIGH TECHNOLOGY CRIME UNIT 

In April of 1997, Attorney General Scott Harshbarger announced the formation of the High 
Technology Crime Unit. The Unit, one of the first of its kind in the country and the first in the 
Northeast, is a joint effort with the Office of Public Safety, and is housed in the NSI Division and 
staffed by prosecutors and State Police. 

The Unit has two primary objectives. First, working in conjunction with a task force 
comprised of state and local law enforcement officers, the Unit acts as a resource to the law 
enforcement community, providing investigative, legal, and technical support on computer-related 
criminal investigations, including computer forensics and searches and seizures involving computers. 
Second, the Unit collaborates with members of the high tech industry in this Office's efforts to 
identify, investigate and prosecute those individuals who are committing high tech crimes. 

Since its inception in April of 1997, the Unit has already been involved in a number of 
significant undertakings. For example, a recent investigation resulted in the execution of a search 
warrant and the seizure of more than 1 ,000 illegal cable converting devices. Records seized as a 
result of the search establish that the suspect sold over 30,000 of these devices last year. 



91 



Conservative estimates place the loss to the cable industry from these sales at more than 16 million 
dollars. 

In addition, the Unit has also been called upon to provide forensic and technical assistance i 
a number of investigations by local police departments. These have ranged from a bomb threat sent 
via the Internet to providing forensic assistance in the analysis of computerized records seized 
following a prostitution and child sexual assault investigation. 

ARSON INITIATIVE 

In 1 996, the Attorney General's Office launched a new initiative aimed at strengthening fire 
prevention efforts and identifying and prosecuting arsonists. Working out of the NSI Division, the 
Unit has focused on the investigation, indictment, and prosecution of several significant arson-for- 
profit cases. 

One such case involved the City of Lawrence. In January 1994, a fire at the Townhouse Pub 
in Lawrence caused damage estimated at $100,000.00. A subsequent investigation by the Lawrence 
Fire and Police Departments, as well as the Bureau of Alcohol, Tobacco, and Firearms (ATF), 
determined that the fire had been deliberately started. The case was referred to the NSI Division and 
ultimately resulted in two employees being convicted of arson and conspiracy. 

Training also plays a significant role in the Unit. Toward that end, in April, the Office of the 
Attorney General hosted a two-day seminar on Arson Investigation and Prosecution with the State 
Fire Marshal's Office, which attracted more than 300 investigators and prosecutors from throughout 
the Commonwealth. The Unit has also participated in training seminars sponsored by the National 
Fire Academy, Massachusetts Fire Academy, Metro Arson Investigators and ATF, lecturing on a 
broad range of topics, including search and seizure issues at fire scenes, fire code enforcement 
methods, arson laws and trial advocacy. Finally, the Unit is working with the State Fire Marshal to 
develop and execute fire code enforcement programs across the Commonwealth. 

OPERATION CLEAN SWEEP 

During the past year, the NSI Division continued with Operation "Clean Sweep." This 
initiative, which targets repeat drug offenders and persons distributing drugs in the vicinity of schoolj 
and/or playgrounds, was launched during FY95. The operation, first initiated in the City of Waltha 
during the spring of 1995, has continued to be successfril. 

This year, the NSI Division conducted its largest "Sweep" operation to date in the Town of] 
Framingham. A collaborative effort between undercover state police officers assigned to the NSI 
Division and the Framingham Police Department resulted in drug-related charges being brought 
against 51 individuals ranging from trafficking in cocaine to distributing controlled substances withir 
a school zone. Nearly 3,000 grams of cocaine, as well as heroin and marijuana, were seized as a 
result of the investigation. In addition, five area bar owners received notificafion of drug activity in 
their establishments with warnings that forfeiture proceedings would be instituted if inmiediate 
corrective measures were not taken. 



92 



OPERATION TAKE BACK 

The NSI Division also continued with its efforts in "Operation Take Back", a program 
'designed to assist property owners in eradicating drug problems in designated properties which are 
the site of repeated drug violations. The Division's Asset Forfeiture Unit pursues forfeiture actions 
against owners who are unwilling to take corrective measures. 

Of the numerous accomplishments this year in Operation Take Back, two merit special 
mention. The first involved the forfeiture of a Lowell drinking establishment, the site of repeated 
serious criminal activity. A civil forfeiture action filed against the bar and its owners by the NSI 
Division's Asset Forfeiture Unit resulted in the closure of the bar to the substantial benefit and 
appreciation of the surrounding neighborhood. 

The second involved another drinking establishment located in the Town of Hudson. The 
bar was also the site of persistent criminal activity, including numerous sales of narcotics and 
repeated drunk driving incidents, including multiple vehicular homicides. As a result of a lawsuit 
brought by the Asset Forfeiture Unit the bar was closed and the property foreclosed. 

LANDLORD TRAINING PROGRAMS 

As a component of Operation Take Back, the Division's Asset Forfeiture Unit conducts 
landlord training seminars. These seminars are designed to educate landlords about their rights and 
responsibilities with respect to tenants who are utilizing the property as a drug distribution site. 
Four such trainings were conducted during FY97, two in Lawrence, one in Waltham, and one in 
New Bedford. 

WEAPONS INITIATIVE 

The NSI Division also continued in its efforts to apprehend and prosecute violent criminals 
by targeting individuals involved in the illegal sale and possession of firearms, as well as other 
firearms-related offenses, often in conjunction with agents assigned to the Bureau of Alcohol, 
Tobacco and Firearms. 

I One of the more significant weapons cases investigated and currently being prosecuted by 

the Division involves a Quincy resident who was arrested after he sold 1 6 guns to an undercover State 
Trooper. Among the weapons sold were a Tech 9 semi-automatic that was being converted into a 
automatic weapon, as well as several 9 millimeter handguns. The investigation revealed that this 
individual was supplying various Boston gang members with weapons, as well as training them on 
how to use the weapons. Search warrants executed in relation to this investigation resulted in the 
seizure of a number of additional loaded handgims with obliterated serial numbers, armor-piercing 
bullets, over 40 pounds of ammunition, a bullet-proof vest, empty gun magazines and other gun- 
related material. 



93 



LAW ENFORCEMENT SUPPORT 

Attorneys and investigators assigned to the NSI Division work with and provide support to 
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. These joint undertakings ranged from investigations of 
major money laundering organizations to a solicitation over the Internet to kidnap and rape a Vermont 
woman. 

OUTREACH 

An important area of focus for the Division this fiscal year has been to contribute to the 
development of more effective approaches for addressing substance abuse among criminal 
offenders. Division staff participated in drafting of legislative proposals in this area and also 
developed working relationships with a number of key system professionals interested in these 
issues. The Division's effort culminated in June with an interbranch conference on drug testing 
jointly sponsored with the Supreme Judicial Court, the Commissioner of Probation and Harvard 
University's Mind/Brain/Behavior Initiative. 

Members of the Division also participated in a number of outreach training programs and 
speaking engagements in addition to those already mentioned. AAGs Djuna Perkins, Robert 
Sikellis and Brett Vottero served as panelists at the Campus Law Enforcement Conference held in 
February, 1997. AAG William Brownsberger, along with Suffolk County District Attorney Ralph 
Martin, addressed students and faculty at the Harvard School of Public Health on community- 
based approaches to prevention of drug abuse. AAGs William Brownsberger, Linda Nutting 
Murphy, and Robert Sikellis spoke at this year's Law Enforcement Coordinating Corrmiittee 
meeting. AAG Brett Vottero organized and conducted a mock trial for arson investigators at the 
International Association of Arson Investigators, and presented the keynote address at the Chief 
Fire Officers Training at the Massachusetts Firefighters Academy. AAG Linda Nutting Murphy 
spoke about computer search warrants and other high technology crime issues at a conference 
sponsored by the New England State Police Intelligence Network. 



94 



NSI DIVISION ACTIVITIES FOR FY 97 

A. Criminal Cases Initiated 118 

B. Criminal Cases Disposed 73 



TOTAL 


PRE-TRIAL 


AFTER TRIAL 


73 


61 


12 


CONVICTIONS 


NOT GUILTY 


MISTRIALS 


DISMISSALS 


TOTAL 


69 


2 





2 


73 



Seizures 



Cocaine 


3,968.54 grams 


Heroin 


174.94 grams 


Marijuana 


11,336.60 grams 


Prescription Pills 


456 


U.S. Currency 


$187,259.00 


Vehicles 


12 


Stolen Property 
Recovered 


$550,000.00 



95 



D. Drug Related Civil Forfeitures 



Cases Initiated 


22 


Vehicles Forfeited 


22 (forfeiture judgments in state court) 


Forfeiture Judgments 


$222,574.81 plus interest (forfeiture 
judgments in state court) 


Proceeds from Sale of Previously 
Forfeited Property 


$ 10,982.51 


TOTAL 


$233,557.32 


Unclaimed Property Returned 
to Treasurer 


$21,079.30 



96 



PUBLIC INTEGRITY DIVISION 

In FY97, the Public Integrity Division (PID) investigated and prosecuted public 
corruption and conflict of interest cases throughout the Commonwealth, convicting those 
individuals and businesses that attempted to profit in violation of the ethical and criminal laws of 
the Commonwealth. The Division currently consists of five Assistant Attorneys General, several 
financial investigators and a team of Massachusetts State Police officers. 

During this year, PID commenced approximately 35 criminal prosecutions against public 
officials and other individuals who violated the public trust, ranging from crimes of bribery by 
attorneys and their associates to conflicts of interest and bribery allegedly committed by a 
Middlesex Clerk-Magistrate to the illegal trafficking of Massachusetts lottery coupons. During the 
same time period, more than 20 criminal prosecutions were resolved. 

The Public Integrity Division works closely with other divisions of the Criminal Bureau. 
As one example, this past year, the Public Integrity Division combined resources with the Tax 
Prosecution Unit of the Economic Crimes Division to successfully prosecute and convict a number 
of public officials and business entities for violations of the criminal tax laws of the 
Commonwealth. 

The Division continues to coordinate the Attorney General's Public Integrity Advisory 
Group, which brings together representatives from the various executive branches of state 
government to discuss joint efforts to detect fraud, waste and abuse by government employees. 
Many of the prosecutions initiated by the Public Integrity Division which resulted in convictions 
originated from referrals by members of the Advisory Group. 

The Division also continues to work in conjunction with the Attorney General's Central 
Artery Tunnel (CAT) coordinator to monitor that project's adherence to the law. The Division 
continued to successfully collaborate with state and federal law enforcement officials, including 
the Public Corruption and Special Prosecutions Unit of the United States Attorney's Office and the 
Internal Revenue Service. 

Criminal Case Highlights 

A. Some Highlights of Cases Initiated in Fiscal Year 1997 

A North Shore attorney working under contract with the Committee for Public Counsel 
Services was indicted by a Middlesex County Grand Jury on charges he extorted, and attempted to 
extort, cash payments of up to $10,000 from indigent jailed defendants in exchange for his 
services, even though he had been assigned by the court to act as their public defender. The 
attorney was also indicted for larceny over $250 and tax evasion. These indictments arose out of 
the attorney's receipt of $1,500 from family members of one of the defendants. The attorney 
submitted four bills to the state claiming he had performed work for the indigent defendant with 
false certification that he had not received money for the work. As a result of the false bill, the 
attorney was paid $2,250 by the state. Under the scheme to evade state income taxes on extra 



97 



income he was receiving, the attorney filed false tax returns for 1993, 1994, and 1995 that under- 
reported his law practice receipts. 

A Southeastern Massachusetts criminal defense attorney was indicted, along with his 
business associate, on two counts of bribery and intimidation of a witness. This scheme involved 
the attorney's attempts to pay crime victims in exchange for a recantation or failure to appear at the 
criminal trial of his client. 

A Clerk-Magistrate of the Cambridge Superior Court, Criminal Session, was indicted for 
bribery, conflict of interest, and filing false statements of financial interest (SFI) with the State 
Ethics Commission. The indictments allege that the Clerk-Magistrate accepted $6,000 in cash and 
$4,000 in vacation benefits from a private investigator in exchange for assigning criminal cases to 
five attorneys who regularly hired the private investigator. The private investigator was indicted 
on charges that he paid $10,000 in bribes to the Clerk-Magistrate. The wife of the investigator was 
also charged with tax evasion and failure to file tax returns pertaining to income received ft-om the 
investigator's corporation. 

The former Executive Director of the Dennis Housing Authority was charged with two 
counts of embezzling approximately $5,000 fi-om the Authority. The former Executive Director 
directed the Authority to make an unauthorized $2,400 payment to her in November 1993. In 
December 1993, the former Executive Director directed the Dennis Housing Authority bookkeeper 
to issue her a $2,500 payment for an unauthorized bonus in cormection with her development work 
on a Housing Project. The payments were allegedly taken fi-om accounts designed to fund rental 
assistance payments for low-income tenants. 

A Middlesex Probate and Family Court probation officer was indicted for bookmaking 
operations. The probation officer was indicted for two illegal gambling crimes: possession of 
betting apparatus and using a telephone for gaming purposes. The probation officer ran the 
operation out of his Winthrop home. 

Sting investigations in Hampden, Worcester, Norfolk and Barnstable counties netted 1 1 
individuals and companies on an illegal scheme to traffic in Massachusetts State Lottery coupons. 
The kickback scheme consisted of individuals redeeming bundles of lottery coupons with certain 
lottery vendors in exchange for a percentage of the face value of the coupons fi-om the vendors. 
The lottery was crediting these vendors under the misassumption that customers were buying 
tickets with these coupons. The investigation was conducted with the cooperation of the 
Massachusetts Lottery Commission and the U.S. Postal Service. 

A Massachusetts State Trooper and Boston Firefighter were indicted by a Plymouth 
Grand Jury on larceny charges pertaining to illegal housing subsidies they received fi-om HUD. 
The two filed false income verification reports that underreported their annual income which 
enabled them to receive housing subsidies. 

B. Some Highlights pf Case Dispositions in Fiscal Year 1997 



98 



A Springfield man plead guilty to one count of larceny of more than $250 for 
participating in a scheme to buy and cash State Lottery coupons illegally. The defendant was 
sentenced to one year in jail, suspended, with two years probation. In addition, he was ordered to 
perform 100 hours of community service, pay $500 in restitution to the Lottery and pay a $1,000 
fine. The defendant and six others were indicted last December for allegedly scheming to traffic 
Lottery coupons illegally. The coupons, purchased in bulk at discounted prices fi-om undercover 
State Police troopers, were redeemed at full value through the lottery. The charges were the result 
of a cooperative effort between the AG's office, The Massachusetts State Lottery, and the U.S. 
Postal Service. 

A Revere man who screened applicants for an anti-homelessness program plead guilty to 
welfare fi-aud and bribery. He was sentenced to three years of probation and six months of house 
arrest, during which time he will not be allowed to leave his home except to go to work and 
doctor's appointments. In addition, the defendant must pay $36,559 in restitution to the state. The 
defendant, an employee of the Department of Transitional Assistance (DTA) whose 
responsibilities included eligibility screening for emergency assistance, admitted he solicited and 
accepted a $1,000 bribe from a Bradford woman. The woman was a property manager who 
allegedly worked with the defendant to steal over $24,000 for tenants living in her property who 
did not qualify for emergency assistance. Emergency assistance payments are part of an anti- 
homelessness program designed to allow the DTA to pay rent directly to landlords. The defendant 
has also plead guilty to charges of arranging for an additional $12,444 in fraudulent assistance 
payments to landlords and mortgage holders. 

A former veteran's agent for the towns of Swansea, Seekonk and Somerset plead guilty to 
larceny charges pertaining to the embezzlement from three veterans and a veteran's widow. The 
thefts included approximately $30,000 from the veterans and the deed to a house worth $66,000 
from the veteran's widow. The veteran's agent was sentenced to a 20-day House of Correction 
committed term, 500 hours of community service and was ordered to pay frill restitution. 

The owner and president of Con-Rel, Inc. a general contracting firm, plead guilty in 
Middlesex Superior Court to one count each of procurement fraud, making false claim to the state, 
falsifying corporate books, and conspiracy. The charges came in connection with a state contract 
to renovate the Roosevelt Towers public housing project in Cambridge. The defendant received a 
two and a half year House of Correction sentence, ten days to be served, three years probation, and 
a $5,000 fine. This case was referred by the Executive Office of Communities and Development. 

The acting Director of the Wellfleet Department of Public Works plead guilty to charges 
he sought and received free paving of his home's driveway from a contractor that had been hired to 
pave roads in Wellfleet. The Director also obtained reimbursement from a neighbor at the same 
time for pavement of a shared part of the driveway. The Director plead to two counts of larceny 
over $250 and one count of conflict of interest. He was sentenced to two years probation, 96 hours 
of community service, and restitution. 

A former Department of Revenue (DOR) employee plead guilty to paying an illegal 
gratuity to his supervisor in the Springfield DOR office. More than $53,000 in gifts were given to 



99 



the supervisor as part of a scheme in which the employee was allowed to remain unsupervised and 
pursue other illegal endeavors. A sentence of two years in the House of Correction, one year 
committed, with the balance suspended for two years, and probation was imposed. 

Public In tegrity Division Charges and Indictments 
Date Defendant's Name 

7/96 Lionel Morais 

1 count of larceny (embezzlement by a fiduciary) 
1 count of larceny over $250 

1 count of illegal gratuity 

8/96 Edward K. Bover 

2 counts of bribery 

2 counts of intimidation of a witness 

8/96 Pedro Cumba 

2 counts of bribery 

2 counts of intimidation of a witness 

8/96 Elizabeth Mills 

1 count tax evasion 

1 count failure to file tax returns pertaining to 

income received from a corporation 

9/96 Joseph Marshall 

1 count of bribery 

1 count of conflict of interest 

2 counts of filing false SFI's with State Ethics 
1 count illegal gratuity 

1 count conspiracy 

9/96 James Mills 

1 count bribery 
1 count gratuity 
1 count conspiracy 

9/96 Linda Rentz 

1 count of perjury 

9/96 Kevin O'Hara 

1 count of false tax returns 
I count of larceny over $250 
1 coimt of unemployment fraud 

10/96 Paul Nicewic7 



100 



2 counts of larceny 

1 count of bribery 

2 counts of welfare fraud 

Ruth Carroll 

1 count of bribery 

1 count of larceny over $250 

1 count of welfare fraud 

Deno Vakas 

1 count illegal gratuity 
1 count bribery 

James June 

1 count bribery 

1 count illegal gratuity 

Russell Tillman 

2 counts larceny over $250 
1 count procurement fraud 

1 count false corporate records 

1 count tax evasion 

Fred Hamlett 

2 counts larceny over $250 
1 count procurement fraud 

1 count false corporate records 

Rose Marie Hicks 

1 count of larceny over $250 
5 counts false claims 

Paul Hicks 

1 count of larceny over $250 
5 counts of false claims 

Charles Sillari 

1 count possession of betting apparatus 

1 count using a telephone for gaming purposes 

Orchard Variety 

1 count of larceny over $250 
1 count of filing false claims 

Eric Zepke 



101 



1 count of larceny over $250 
1 count of filing false claims 

12/96 Towers Convenience 

1 count of larceny over $250 
1 count of filing false claims 

12/96 Sved Atta Rehman 

1 count of larceny over $250 
1 count of filing false claims 

12/96 Tatnuck Square Getty 

1 count of larceny over $250 
1 count of filing false claims 

12/96 Jihad Nassif 

1 count of filing false claims 

2 counts of conspiracy 

1 count of attempting to commit larceny 

12/96 Marline Geara 

1 count of conspiracy 

1 count of attempt to commit larceny 

12/96 Joseph Geara 

1 count of larceny over $250 
1 count of filing false claims 
1 count of conspiracy 

12/96 Thomas Therrien 

1 count of larceny over $250 
1 count of filing false claims 

12/96 Times Square Market 

1 count of larceny over $250 
1 count of filing false claims 

12/96 Norman Carignan 

1 count of larceny over $250 
1 count of filing false claims 

1/97 Lionel Torres 

1 count of assault with intent to murder 

1 count of assault and battery dangerous weapon 



102 



2/97 Luke Fox 

2 counts larceny over $250 

3/97 Paul Cacchiotti 

4 counts of attempted extortion 
1 count larceny over $250 

3 counts tax evasion 

3 counts false tax return 

3/97 Glenn Essier 

1 count of failure to appear 

3/97 Norma Qrtega-Canerv 

5 counts forgery 

1 count larceny over $250 

1 count conspiracy 

5/97 Gerardo Rosario. Jr. 

assault v^th dangerous weapon 

armed robbery 

assault with dangerous weapon with intent to rob 

assault v^th dangerous weapon in a dwelling house 

use of firearms while committing a felony 

Home invasion 

violation of Constitutional Rights 

5/97 Marlene Hoev 

2 counts embezzlement 



Dispositions 

7/96 Catherine Rog ers 

admitted to sufficient facts 

received a continuance without a finding for 5 years and restitution $8,019.00 

7/96 Rolando Schand 

found not guilty 

8/96 George Thibodeau 

cases dismissed after defendant died of natural causes 

10/96 Leon Bunk 



103 



received Pretrial Probation 

1 1 /96 Lionel Morais 

plead guilty to larceny 

received a 20 day committed House of Correction sentence, 500 

hours community service, and $96,000 Restitution 

1 1/96 Joyce Camire 

plead guilty 

received 6 years probation 

Restitution: $26,914., 100 hours community service 

1/97 Bettv Lee Wing 

plead guilty to larceny and false written reports 

received a 2 year House of Corrections sentence suspended for 2 years, $26,000 

restitution, $16,000 fine 

1/97 Jacquelyn Mennitto 

plead guilty to filing a false claim, false entries in corporate records, and conspiracy 
received 1 year House of Correction, suspended for 2 years, and a $500 fine 

2/97 Kevin O'Hara 

plead guilty to 1 count larceny over $250, 1 count unemployment fi-aud, 
1 count filing false returns 

received a 6 month House of Correction term suspended for 2 years, $7,339 
restitution, $1,000 fine, 300 hours of community service 

3/97 Joseph Butler 

plead guilty to 1 count procurement fraud, 1 count making false claim to the state, 1 
count falsifying corporate books, and 1 count conspiracy 
defendant received 2/4 year House of Correction, 10 days to be served, balance 
suspended for 3 years, probation, and a $5,000 fine 

4/97 Thomas Therrien 

plead guilty to 1 count of larceny over $250, 1 count of filing a false claim 

received 2 years probation, $1,204 restimtion, $2,408 fine, and 200 hours community 

service 

4/97 Claudio Ayala 

plead guilty to 1 count of larceny over $250 

received a sentence of 1 year House of Correction, suspended for 2 years, 

probation, $5,500 fine, $1,375 surfine 

4/97 Norma Ortega-Canery 

defendant found not guilty 



104 



Luis Toribio 

plead guilty to 1 count of larceny over $250, 5 counts of forgery, 5 counts of uttering, 

1 count of conspiracy 

received a sentence of 1 year House of Correction, suspended for 2 years, 

150 hours community service, $2,078.41 restitution 

Victor Martinez 

admitted sufficient facts to 5 counts forgery 

received a continuance w^ithout finding, 100 hours of community service 

Eric Zepke 

plead guilty to larceny over $250 and presentation of false claims 
received a sentence of 1 year House of Correction, suspended for 3 years, 
probation, fine of $6250, $2375 restitution, 300 hours of community service 

Syed Rehman 

plead guilty to 1 count of larceny over $250 

received 1 year House of Correction, suspended for 2 years, probation, 100 hours 

community service, $500 restitution, $1,000 fine 

Paul Nicewicz 

plead guilty to larceny over $250 and bribery 

received a sentence of 3 years of probation, 6 months on a bracelet, $36,559 

restitution 

Luke Fox 

plead guilty to 2 counts larceny over $250, 1 count of conflict of interest 

received 2 years probation, 96 hours of community service, restitution to town 

(to be determined), restitution of $350 to neighbor 

Jihad Nassif 

plead guilty 

received 2 years probation, 300 hours community service, $5,000 restitution, $17,000 

fines 



105 



J 



SAFE NEIGHBORHOOD INITIATIVE 

Established in February, 1993, by the Office of the Attorney General, the Suffolk Coun 
District Attorney's Office, the Mayor's Office of the City of Boston and the Boston Police 
Department, the Safe Neighborhood Initiative (SNI) is an effective coalition among community 
residents, state and local government offices, law enforcement agencies and human service 
organizations to stem violence and improve the quality of life in neighborhoods throughout the 
Commonwealth. Successful SNI models have been established in Dorchester, Grove Hall, 
Brockton, Chelsea and Uphams Comer. 

The Safe Neighborhood Initiative enjoyed a year of significant successes and growth 
during Fiscal Year 1997, receiving not only national recognition but also undergoing 
unprecedented expansion regarding the amount of funding directed toward the initiative, the 
number of projects managed, and the staff assigned to SNI projects. 

SNI Advisory Coimcils, comprised of community residents, law enforcement agents and 
government officials, have firmly established themselves as powerful partnerships, strong voices 
for the community and viable governing bodies for SNI projects. SNI prosecutors at both the 
Superior and District Court levels continued their collaboration with community residents, as well 
as other law enforcement agencies, to improve the quality of life in SNI neighborhoods. The SNI 
prosecutors recommend sentences and probation alternatives which will serve to both penalize and I 
rehabilitate offenders. 

One of the most significant achievements in FY97 was the establishment of a major new 
initiative ~ the SNI Jobs for Youth Program. Begun in the fall of 1 996, the program provides 
employment opportunities for more than 20 youths within their own neighborhoods in the SNI 
communities of Uphams Comer, Fields Comer, Grove Hall, Chelsea, and Brockton. 

Attorney General Harshbarger's emphasis on jobs for young people spurred U.S. Attomey 
Donald Stem to spearhead a collaborative effort with the Office of the Attomey General, the 
Suffolk County District Attorney's Office, the Mayor of Boston's Office, and the Boston Police 
Department to establish a complimentary effort ~ the Boston Jobs Project. This project lead to a 
successful grant application for $2.2 million from the Department of Labor which will be managed 
by Mayor Menino's office and will provide employment and educational opportimities for 
hundreds of young people from Orchard Park and South Boston. 

The SNI has received numerous accolades for its success, including praise from President 
Bill Clinton and United States Attomey General Janet Reno, and a noteworthy Boston Globe 
editorial. President Clinton specifically highlighted Operation Night Light, a cooperative effort 
between the Youth Violence Strike Force and the Massachusetts Department of Probation that 
sends police officers and probation officers on nightly visits to the homes of youth on probation to 
ensure compliance with the terms of their probation. 

Rewards in the form of successful grant applications were also numerous this year: 



106 



• The Grove Hall SNI received its first infusion of grant funding from the Edward J. 
Byrne Grant Fund from the Massachusetts Executive Office for Public Safety ($30,000) and from 
the Department of Justice, Executive Office for Weed and Seed ($125,000) in 1997. The funding 
allowed the hiring of a Seed Coordinator who is responsible for prevention, intervention and 
treatment projects and a Community-Court Liaison who bridges the law enforcement and judicial 
efforts with the community for the project. 

• The Brockton SNI was able to hire an AGO staff person to serve as program 
coordinator through a grant from Christy's Convenience Store, and will benefit from receipt of a 
significant grant from the Executive Office for Public Safety that will target youth violence. 

• The amount of funding for the model SNI in Dorchester was scheduled to decrease but 
the success of the model prompted the Executive Office for Public Safety to instead increase 
funding for the project to $350,000. 

In addition to grant funding, the fiscal year 1997 state budget allowed the hiring of two 
additional SNI prosecutors: one to prosecute cases in the Bowdoin Street area in response to an 
outbreak of violence there, and the second to serve the Uphams Comer area, allowing the SNI to 
expand its efforts in Roxbury. In addition to the expansion into Uphams Comer, the SNI also 
forged a strong relationship with a newly formed SNI in Taunton. The Abandoned Property 
Project through which AGO staff members seek to obtain receiverships of abandoned housing to 
help solve the problems associated with abandoned housing in inner-city communities further 
expanded into the Chelsea and Brockton SNIs this year. 

Due to the national attention the SNI and Boston's other crime-fighting efforts have 
received, Boston is being seriously considered to receive Department of Justice funding to 
establish a community court and enhance community justice initiatives. 

SNI Jobs for Youth Program 

Providing employment opportunities for young people is a critical component of creating 
healthy communities. As a result of Attomey General Harshbarger's commitment to serving 
neighborhood priorities, the SNI Jobs for Youth program began in the fall of 1996. Through this 
program, youth are placed in jobs within their own community with the goal of enhancing 
relationships between young people and merchants and demonstrating that young people are 
indeed willing to work for positive change in their communities. Twenty-three young people were 
placed in substantive jobs in the SNI communities of Chelsea, Brockton, Uphams Comer, Grove 
Hall and Fields Comer from October, 1996 through June, 1997, with some sites being able to 
extend the youth workers' placements through the summer months. Some examples of sites where 
young people were placed are: Charlene's Hair Salon, a more than 20-year-old institution in Grove 
Hall; a community television station in Chelsea; a Brockton Cape Verdean Association; and 
neighborhood community centers. 



107 



Dorchester SNI 

The model SNI project — the Dorchester Safe Neighborhood Initiative (SNI) - continued 
to make significant advances during Fiscal Year 1 997, including receiving increased funding from 
the Executive Office of Public Safety. The SNI Advisory Council and Funding Subcommittee 
continued to meet regularly throughout the year, focusing on ftindraising strategies since Fiscal 
Year 1998 is slated to be the final year of funding from the Executive Office of Public Safety. 

The subcontracted programs of the Dorchester Safe Neighborhood Initiative also 
continued to make invaluable contributions to the health of the community: 

• The Child Witness to Violence Project completed 687 patient visits for counseling 
during FY 1997 and carried a caseload of 77 children and 55 families by the end of the fiscal year. 
The Project also provided training for more than 20 police officers. 

• The Dorchester Center for Adult Education-This Neighborhood Means Business! 
graduated more than 30 people from its merchant education program ~ all of whom developed 
business plans, relationships with local lending institutions, and mentoring relationships with area 
graduate students. 

• By the end of the year, Holland Community Center had reported a 70% increase in 
attendance. AGO fiinding allows the center to remain open on weekends and provide classes in 
the GED, Karate, Arts and Crafts, Aquatics and recreational opportunities for an average of 250 
children and 50 adults each weekend. 

• The Dorchester Youth Collaborative provided services for approximately 40 young 
people per quarter and received national attention for its movie Squeeze which was bought by 
Miramax. The film opened in New York, Los Angeles and at the Kendall Square Theater in 
Cambridge in June and is the first film to address the subject of post-traumatic stress disorder in 
teens who witness violence. 

• Tram Tran who serves as the Vietnamese liaison for Boston Police Area C-1 1 provided 
daily franslation services for walk-ins at Area C-1 1 and advocated for hundreds of Vietnamese 
citizens in the area. 

The Office of the Attorney General also joined with the community organization 
"Neighbors In Deed" to organize the Dorchester SNI Community Health Fair in December. 
Approximately 1 5 different organizations participated in the event, which made available to the 
residents a diverse range of health-related information and services ranging from crimes against 
the elderly to victim witness advocacy and blood-pressure screening. 



108 



Dorchester SNI Prosecution Statistics 

Total Cases Screened - 1699 

District Court Cases Prosecuted - 2063 

District Court Cases Disposed - 1058 

District Court Defendants Sentenced to House of Correction - 78 

District Court Juveniles Committed to Department of Youth Services - 10 

District Court Defendants Receiving Probation Sentences - 78 

Superior Court Cases Disposed - 47 

Superior Court Defendants Incarcerated - 33 

Grove Hall SNI 

The Grove Hall SNI (GHSNI) made significant strides in developing its structure and 
enhancing its outreach to the target community in 1997. A funding award from the Executive 
Office for Weed and Seed was key to the project's progress as was the provision of a Byrne Grant 
to hire a Community-Court Liaison for the GHSNI. 

Hired in the fall of 1997, the Community-Court Liaison has been highly active in 
neighborhood crime watch and association meetings in order to acquaint the community with the 
SNI Community Prosecution component and has also been instrumental in stressing the 
importance of community impact statements for effective prosecution efforts. 

Developing the GHSNI Community Service Program was one of the GHSNI's major 
accomplishments this year. Through this program, Grove Hall offenders who receive community 
service as part of their sentence may be assigned to fulfill that obligation in the Grove Hall 
community. The GHSNI Community Service Program serves as a vehicle for restorative justice 
by requiring the offender to serve the community, and empowers residents and community 
organizations to have input in the determination of the community service placements. 

In January, a Seed Coordinator was hired and is responsible for the coordination of 
intervention, prevention and treatment projects in the GHSNI. The Seed Coordinator has already 
made significant progress in expanding outreach efforts into the targeted community. 

Mini-grants were awarded to five community-based organizations to provide direct 
service focused on the five quality of life issues identified as priorities by residents in the Grove 
Hall area: prostitution/johns, violent crime against seniors, violations of restraining 
orders/domestic violence, underage drinking, and motor vehicle violations on residential streets. 

As the management body of the GHSNI, the Coordinating Council met monthly. 
Attendees included key representatives from the principal offices of the Massachusetts Attorney 
General, the Suffolk County District Attorney, the Boston Police Department, the Mayor's Office 
of the City of Boston and the following community organizafions: Project R.I.G.H.T., Inc., the 
Grove Hall Board of Trade, the Garrison Trotter Neighborhood Association and the Neighborhood 
Development Corporation of Grove Hall. 



109 



One particular initiative that demonstrates the partnerships of law enforcement and 
community, and highlights the nontraditional role prosecutors play in the GHSNI, was the 
collaborative efforts concerning a house at 10 Sunderland Road in the Grove Hall area that had 
been the site of more than 300 arrests, three search warrants, an unsolved homicide and drug turf 
battles between a local gang and the occupants of the house. Members of the Grove Hall SNI 
District and Superior Court prosecution teams, in partnership with police and city officials, 
diligently worked to expedite the process of shutting down the property. The team met with 
community residents and merchants to obtain community impact statements pertaining to the 
property, pointing out the negative effects of the building on law-abiding citizens of Grove Hall. 
A permanent shutdown of the property appears imminent. 

GHSNI Prosecution Statistics 

District Court Cases Disposed - 577 

District Court Defendants Sentenced to House of Correction - 75 

District Court Defendants Receiving Probation Sentences - 225 

Superior Court Cases Disposed - 60 

Superior Court Defendants Incarcerated - 45 

Superior Court Defendants Receiving Probation as Part of Sentence - 12 



Brockton SNI 

The Brockton SNI (BSNI) was founded on February 1, 1996, by Plymouth County 
District Attorney Michael Sullivan, Brockton Police Chief Paul Studenski, Brockton Mayor John 
Yunits and Attorney General Scott Harshbarger. 

A coordinator for the Brockton SNI was hired this year. The Coordinator is an Office of 
the Attorney General employee housed in the Plymouth County District Attorney's Office; the 
position is funded in part by a grant from Christy's Convenience Store. 

This addition to the Brockton SNI staff has proven invaluable to the project. Of 
particular note was the Coordinator's assumption of a leading role in producing a proposal for 
significant funding from the Executive Office of Public Safety which was approved late in the 
fiscal year and is renewable for four years. This award is a significant testament to the important 
work of the Brockton SNI. Funding will allow the project to target juvenile crime prevention and 
provide overtime compensation for Plymouth County Massachusetts State Police CPAC Unit 
working with the SNI. The BSNI operates a Peer Leadership Program and intends to develop a 
Community Awareness Campaign that will create an even stronger presence for the SNI in 
Brockton. 



110 



Brockton SNI Prosecution Statistics 
October 1, 1996 - June 30, 1997 

District Court 

Total Cases Screened - 460 

Total Cases Prosecuted - 438 

Total Cases Disposed - 333 

Total Defendants Committed to House of Correction - 98 

Total Defendants Receiving Probation - 200 

Total Superior Court Indictments - 24 

Total Defendants Receiving Fines - 7 

Juvenile Court 

Total Cases Screened - 163 

Total Cases Prosecuted - 1 63 

Total Cases Disposed - 1 1 3 

Total Superior Court Indictments - 1 (juvenile transfer) 

Total Youthful Offender Cases - 1 

Total Juveniles Committed to DYS - 7 

Total Defendants Receiving Probation - 42 

Total Defendants Committed to House of Correction - 9 

Superior Court 

Total Cases Indicted - 30 

Total Cases Disposed - 10 

Total Defendants Committed to House of Correction - 4 

Total Defendants Committed to State Prison - 6 



111 



Uphams Corner SNI 

On January 9, 1997, various community groups from the Uphams Comer area and 
representatives from the Boston Police Department, the Office of the Attorney General and the 
Suffolk County District Attorney's Office met to kick-off the Uphams Comer SNI, which has 
prioritized anti-drug operations. Throughout the year, the prosecutor assigned to Uphams Comer, 
met extensively with community groups including the Uphams Comer Dmg Task Force/Main 
Street group, to discuss ways the community can participate in the coordinated law enforcement 
efforts of the SNI. 

The Brockton SNI collaborated with the Uphams Comer Police to implement a $125,000 
State Community Policing Grant through which members of the Dmg Control Unit work to stem 
dmg frafficking and abuse in the area. In addition, the first phase of a Boston Police operation 
entitled Operation SCAT was launched in an effort to address dmg complaints from residents and 
community organizations in the Uphams Comer area. The second phase of Operation SCAT 
targeted auto theft which had become a significant quality of life problem in the area. 

The commimity service program model developed for the Grove Hall SNI will be 
replicated in the Uphams Comer SNI, requiring offenders who receive community service 
sentences to perform that service in the Uphams Comer area 

Uphams Corner SNI Prosecution Statistics 
October 1, 1996 - June 30, 1997 

Total District Court Cases Prosecuted - 156 

Total District Court Cases Disposed - 74 

Total Defendants Committed to House of Correction - 13 

Total District Court Cases Receiving Probation - 28 



112 



Chelsea SNI 

The Chelsea SNI (CSNI) was founded m September of 1995 by Suffolk County District 
Attorney Ralph Martin, Chelsea Police Chief Edward Flynn and Attorney General Scott 
Harshbarger. Full CSNI operations, including the stamping and targeted prosecution of arrests out 
of the CSNI area began on May 13, 1996. In the first year of the Chelsea SNI's operation, it 
handled more than 400 cases and enjoyed a conviction rate of 92 percent. 

Coordinated law enforcement efforts in Chelsea resulted in an official crime rate drop of 
28 percent in 1996, with notable decreases from 1995 in robbery, burglary, auto vehicle thefts and 
aggravated assaults. A joint federal and local task force effort in the spring led to the arrests of 
three suspects on charges related to an alleged million-dollar counterfeit check operation. An SNI 
sweep to stop prostitution in March led to the arrests of 16 Johns in Chelsea's Bellingham Square 
neighborhood. In June, Chelsea Police were involved with Boston Police in a major sting 
operation through which 60 people were arrested on outstanding warrants when they appeared for 
what they believed to be an opportunity for a role as an extra in a farcical movie. 

Safe Neighborhood Initiative Staff 

Deputy Chief of the Criminal Bureau Susan Spurlock directs the Safe Neighborhood 
Initiative. Staff members assigned to the SNI as of the end of FY97 are Assistant Attorneys 
General Marcia Jackson, Neil Tassel, Katherine Hatch, Selena Samm, Shelley Richmond, David 
Breen, Glenn MacKinlay, Trish Preziosa, and Audrey Huang; SNI Program Coordinator Lara 
Ramey; Administrative Assistant Nancy Tavilla; Grove Hall Community-Court Liaison Cara 
Henderson; and Brockton SNI Coordinator Christina Dilorio. 



VICTIMAVITNESS ASSISTANCE PROGRAM 

In January, 1994, Attorney General Scott Harshbarger identified the need for support 
services for victims and witnesses throughout his entire office. At that time, he formally 
introduced these services in the Criminal Bureau by appointing Kathy Morrissey to the position of 
VictimAVitness Advocate. The VictimAVitness Assistance Program of the Attorney General's 
Criminal Bureau was developed to meet the following goals: (1) to provide crisis assessment and 
intervention to crime victims and witnesses to facilitate their emotional, psychological, physical 
and financial recovery from victimization; (2) to reduce the level of secondary victimization 
associated with victims' and witnesses' involvement in the criminal justice system and other 
systems; and (3) to aid in the prosecution of criminal cases by ensuring that crime victims and 
witnesses are provided with the rights and services mandated by the Victim Rights Law 
(G.L. c. 258B). 



113 



The Victim/Witness Advocate is responsible for providing victim advocacy and witness 
management services on Criminal Bureau cases throughout the Commonwealth. The advocate 
also provides ongoing training in the Bureau relating to victim/witness issues and assists the 
prosecutors, investigators and state troopers by screening daily duty calls from the public where 
specific victim/witness questions have been raised. White collar cases involving elderly victims of 
fraud and witnesses with particular needs account for a significant percentage of services rendered. 
The advocate also responds at times to cases in our Public Protection Bureau requiring preliminary 
injunctions based on issues of gender, race or sexual orientation. 

Due to the high volume of cases in FY97, a second Victim/Witness Advocate position 
was added to the Criminal Bureau. Cheryl Watson joined the Criminal Bureau in December, 
1996. Cheryl served with distinction as a Victim/Witness Advocate in the Essex County District 
Attorney's Office and also worked as a Victim Advocate and Outreach Specialist at the 
Massachusetts Office for Victim Assistance before joining the Office of the Attorney General. 

During FY97, the program continued its momentum to focus on victim/witness needs. 
Victim advocacy and witness management services were provided on 50 cases covering nine 
counties across the Commonwealth. The nature of victimization stemmed from cases involving: 
larceny; assault and battery with a deadly weapon; manslaughter; welfare fraud; bribery; 
interference with a witness; deriving support from a minor prostitute; and probation and restitution 
violations in white collar cases. In addition to witness management, scheduling and coordination 
for complex cases going to trial, the victim/witness advocates also screened 55 additional cases 
arising from duty calls and correspondence. The types of complaints or services sought included: 
domestic violence; children witnessing violence; mental health issues for elderly victims; 
probation and parole issues; witness protection program status; community crisis response; and 
crises precipitated by civil lawsuits brought by convicted defendants against former 
Commonwealth witnesses. 

Training is also part of the victim/witness advocates' responsibility. Toward that end, the 
victim/witness advocates conducted brown bag discussion groups with managers from the Public 
Protection Bureau, the Business Labor and Protection Bureau and the Family and Community 
Crimes Bureau to address the ongoing needs for victim/witness assistance on cases throughout the 
office. Cheryl Watson also served as a panelist at a Campus Law Enforcement Police training held 
at the College of the Holy Cross in Worcester. Cheryl addressed the dynamics of sexual assauU 
and discussed the difficulty vicfims encounter in reporting sexual assaults on a college or 
university campus. 

Seasoned victim/witness advocates are also expected to provide community crisis 
response as necessary. To enhance the skills of the advocates in the Criminal Bureau, they 
attended two state-of-the-art community crisis response team frainings in Fiscal Year 1997: (1) the 
Department of Mental Health's Disaster Crisis Counseling Training; and (2) the National 
Organization for Victim Assistance National Community Crisis Response Team Training Institute. 



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FAMILY AND COMMUNITY CRIMES BUREAU 

The Family and Community Crimes Bureau develops and coordinates policy, programs, 
legislation and training for law enforcement and other professionals and public education on behalf 
of the Attorney General in the following major areas: family violence; juvenile justice and youth 
violence prevention; and the protection, health and education of children. The Bureau also 
continues to focus on the protection of elders, through the work of the Attorney General's Elderly 
Protection Project. In addition, claims for compensation filed by victims of violent crime are 
reviewed and approved through the Bureau's Victim Compensation and Assistance Division. 

FAMILY AND DOMESTIC VIOLENCE 

During FY'97, the Bureau continued to ftilfill the Attorney General's commitment to 
providing ongoing training on domestic violence for law enforcement officers and others. In 
October of 1996, the Bureau planned and presented the Attorney General's Sixth Annual Domestic 
Violence Police Training Conference, which provided training on strategies for domestic violence 
prevention and intervention to over 320 police officers from communities across the state. 
Periodic training updates were provided during the year through the publication of the Domestic 
Violence Update sections of the Attorney General's Law Enforcement Newsletter, and relevant 
articles in the Bureau's Safe Schools Newsletter. Assistant Attorneys General assigned to the 
Bureau made presentations on domestic violence and related issues at a number of area events, 
including the Massachusetts Chiefs of Police Firearms Seminar, the Lowell Police Department's 
Community Response to Domestic Violence Conference, the Statewide Prosecutors and 
Advocates Domestic Violence Conference, the aimual conference of the Massachusetts Law 
Enforcement Coordinating Committee, the Association of Family and Conciliation Court's 
Northeast Regional Conference on Family Violence, the Massachusetts State Police sponsored 
Domestic Violence Training Program for municipal police officers, a conference on domestic 
violence at the University of Massachusetts Medical Center, and a joint State Fire 
Marshal/ Attorney General training conference for arson investigators. In addition, the Bureau 
continued its efforts, in collaboration with the Massachusetts District Attorneys Association and 
the district attorneys offices across the Commonwealth, to publish a training manual for 
prosecutors on domestic violence and sexual assault. This manual is scheduled for publication and 
distribution to prosecutors across the state in the fall of 1997. 

Bureau attorneys also continued to represent the Office of the Commissioner of Probation 
in pending litigation involving legal challenges to the Statewide Registry of Civil Restraining 
Orders. In that capacity, the Bureau successfiilly appealed one of these cases to the state's 
Supreme Judicial Court, resulting in a decision which serves to preserve the integrity of the 
Registry's record keeping system, and affirms the importance of that system to the protection of 
victims of domestic violence. 

The Bureau's work in the area of domestic violence continues to recognize the need to 
enlist all segments of a cormnimity, in addition to the criminal justice system, to effectively 
intervene in and uhimately prevent such violence. As part of that focus, in the spring of 1997, the 
Bureau planned and presented, in conjunction with the Massachusetts Women's Bar Association, a 
conference on sports and violence against women entitled, "The Rise of the Sports Hero: Tackling 



115 



the Issue of Violence Against Women." This conference brought together educators, student- 
athletes, attorneys, coaches and others to address the incidence of acts of violence against women 
by male students and athletes on school campuses, and explored possible solutions to this problem, 
including the enlisting of athletes and student leaders as positive role models for boys and young 
men. 

The Bureau also continued to work, in cooperation with area clergy leaders, on 
development of an informational manual on family and domestic violence for clergy members ~ in 
recognition of the fact that victims often may turn to their clergy for support and assistance. 
Publication of this manual is also scheduled for the fall of 1997. 

Through the work of Bureau staff in early 1 997, the Attorney General's Office became a 
founding member of "Employers Against Domestic Violence," a growing group of Massachusetts 
employers who have joined together, under the leadership of the Boston law firm, Mintz, Levin, 
Cohen, Ferris, Glovsky and Popeo, to identify and institutionalize ways in which employers can 
better protect and respond to the needs of victims of domestic violence. 

As a member of the national Advisory Council on Violence Against Women, and 
chairman of the Council's Law Enforcement Subcommittee, the Attorney General, with the support 
and assistance of Bureau attorneys, participated in the development of "A Community Checklist: 
Important Steps to End Violence Against Women." This manual, designed to provide helpful 
information to all segments of a community, was jointly sponsored by the U.S. Department of 
Justice and U.S. Department of Health and Human Services, and distributed throughout 
Massachusetts by the Attorney General's Office in the fall of 1996. 

As part of the ongoing effort to raise awareness and promote education on domestic 
violence throughout a community and across the state, the Bureau supported and assisted in the 
creation of the Massachusetts Silent Witness Exhibit — a traveling memorial to the women who 
have died as a result of domestic violence. The exhibit was unveiled in May of 1997, and was the 
result of the dedicated efforts of Partnership for Peace and Peace at Home - two Massachusetts 
victim advocacy groups — as well as countless volunteers. Information was also provided to 
school administrators and educators on teen dating violence and enforcing restraining orders 
through publication of articles on these topics in the Bureau's Safe Schools Newsletter. 

Providing vital information to domestic violence victims can be significantly hindered in 
the face of language and cultural barriers. In order to help remedy this problem, the Bureau 
helped produce an informational pamphlet on domestic violence, translated and available in seven 
languages, entitled, "Answers to Common Questions." To date, hundreds of copies of the manual 
have already been distributed to district attorneys offices, police departments, advocacy centers 
and shelters across the state. 

Children who live with or otherwise witness domestic violence are significantly impacted 
by such experiences, and that impact often has deleterious consequences for a child's future. In 
recognition of this fact, and in order to assist communities across the state in responding to this 
problem, in FY '97 the Attorney General, through Bureau attorneys, and in conjunction with the 



116 



Child Witness to Violence Project at Boston Medical Center, applied for and was awarded a 
significant grant under the federal Violence Against Women Act to develop a statewide Child 
Witness to Domestic Violence Program. This program, which will feature regional training 
conferences and clinical training seminars, will provide training and assistance to police officers, 
prosecutors, teachers, shelter workers, day care providers, guidance counselors, health care 
professionals and mental health professionals and a means to implement, in their own community, 
a system for identifying and effectively responding to children who are witnessing violence in their 
own homes. Bureau staff also testified before the legislature in support of pending legislation to 
presumptively preclude child custody awards to parents who commit acts of domestic violence. 

Assistant Attorneys General in the Bureau continued to represent the Attorney General 
on, and actively participate in the work of the Governor's Commission on Domestic Violence. 
Bureau staff were members of several of the Commission's working subcommittees, including the 
Uniform Enforcement, Legislative, Community Education, and Immigrant and Refugee 
Subcommittees, as well as the Children's Working Group. 

CHILDRENA^OUTH 

During FY'97, the Bureau completed its series of luncheon discussions on youth violence 
prevention, presented in conjunction with the Harvard School of Public Health. These final 
sessions focused on such issues as developing early intervention strategies, building a safe school 
environment and identifying youths' perspectives. The series culminated in a recommendations 
session where recognized experts in the field had an opportunity to identify proposals for 
implementing the prevention strategies identified throughout the series. A comprehensive report 
on the series, consisting of major recommendations for communities, criminal justice agencies, 
schools, state agencies and service providers is scheduled for release in the fall of 1997. 

Assistant Attorneys General in the Bureau also re-drafted, filed and testified in support of 
new Safe Schools legislation. This legislation is designed to promote a safer school environment 
through a number of measures, including the establishment of gun-free zones, facilitating and 
promoting increased communication between school administrators and local law enforcement, 
increased penalties for assaults on teachers, and the removal of restrictions on the establishment of 
student dress codes. The Bureau also continued to publish a semi-annual Safe Schools Newsletter, 
providing school administrators with important and timely information on various topics related to 
child welfare, violence prevention and school safety. The newsletter is now disseminated to all 
elementary, middle and high school principals, school superintendents, and police chiefs across the 
Commonwealth. 

In order to maintain a focus on the Attorney General's commitment to child protection 
and child welfare, the Attorney General Children's Issues Advisory Group was expanded, and 
continued to bring together recognized child welfare experts in Massachusetts. The Bureau also 
refined the Attorney General's Children's Action Plan ~ identifying past, ongoing and future 
initiatives to promote the protection, health, education and welfare of children. In connection with 
these efforts. Assistant Attorneys General assigned to the Bureau participated in a Massachusetts 
Task Force on Corrmiunity Education, the Boston Bar Association's Task Force on CHINS 



117 



(Children in Need of Services) Reform, the Latino Pediatric Access Project, the Massachusetts 
Children's Justice Act Task Force, and the Harvard Law School Adoption Reform Committee. 

As part of these efforts, the Attorney General testified before the state legislature in 
support of pending Newborn Home Visiting legislation — a bill designed to reduce the incidence of 
child abuse and neglect, and promote crime prevention, through regular home visits to children 
bom to teenage parents. Bureau staff also testified before the legislature in support of pending 
legislation to presumptively preclude child custody awards to parents who commit acts of 
domestic violence, and assisted with legislation, now pending before the legislature, for the 
creation of child fatality review teams in Massachusetts. 

Bureau staff also continue to participate actively with the "Permanency Mediation 
Coalition," a group formed by Massachusetts Families for Kids to promote a system for the 
expedited permanent placement of foster children. 

ELDERS 

Protection of our elder citizens remains a high priority for the Office of the Attorney 
General, and the office's Elderly Protection Project continues to be an important component of the 
Bureau's work. In FY' 97, Project staff continued to focus on police recruit training at academies 
across the state - presentations covering a variety of subjects, including the demographics of 
aging, effective communication with elders, mandatory reporting and investigation of elder abuse, 
neglect and financial exploitation, and mental health issues. The Project also initiated advanced 
law enforcement trainings on financial exploitation, outreach and domestic violence involving 
elders. In addition, the Project continued its focus on assisting Alzheimer's patients through a 
collaborative project with the Alzheimer's Association, the State Police and the Department of 
Environmental Management, to develop a statewide protocol to facilitate the search for missing 
elders. 

The Project repeated its highly successftil Consumer University in F Y'97, providing 
training and education to over 300 seniors fi-om the Greater Boston area on consumer rights, scam 
and fi-aud avoidance and crime prevention. Project staff also participated in numerous 
presentations across the state on fraud prevention, including a program for money managers who 
work with elder clients. The Project also participated in the drafting of legislation designed to 
protect elders in their homes, both by codifying a prohibition against gaining entry to a home 
through fraud or deceit, and through the enhanced regulation of home improvement contractors in 
the state. 

Project staff also continued to participate in the Bank Reporting Project, a successftil 
collaboration between the Attorney General's Office, the Executive Office of Elder Affairs and the 
Massachusetts Bankers' Association. Through the project, training of bank management and 
security personnel has continued, providing them with an enhanced ability to detect, intervene in 
and report elder financial exploitation. A related "train the trainer" program reached personnel 
from over 30 banks during FY '97. The success of this project has prompted inquiries from 20 
other states interested in replicating this program. 



118 



VICTIMS 

The Bureau resumed its efforts during FY'97 to secure the passage of a comprehensive 
victim confidentiaUty bill. Working closely with legislative leaders, the Bureau participated in re- 
drafting and re-filing such legislation, designed to protect crime victims from the disclosure of 
personal and sensitive information. 

FY '97 saw the institution of a Sex Offender Registry in Massachusetts, and the Attorney 
General's Office, through Assistant Attorneys General in the Bureau, as well as the Government 
Bureau, have worked extensively with the Executive Office of Public Safety's Criminal History 
Systems Board and the Massachusetts Chiefs of Police Association to provide training to law 
enforcement officials on implementation of the Registry. In the fall of 1997, Bureau staff made a 
presentation on the Sex Offender Registry at the Attomey General's Statewide Chiefs of Police 
Conference, and in January of 1997, made a similar presentation at the Massachusetts District 
Attorneys' Association Statewide Prosecutors Conference. A comprehensive summary of the Sex 
Offender Registry legislation was also provided by the Bureau in the office's Law Enforcement 
Newsletter. 

As part of an ongoing effort to provide police with enhanced control over firearm 
possession in their jurisdictions, the Bureau re-introduced legislation seeking to limit the duration 
of firearms identification cards fi-om an indefinite period to no more than five years. 

The Bureau initiated the publication of a newsletter devoted entirely to victims' rights 
issues during FY'97. Published for the first time in the spring of 1 997, the newsletter, "Focus on 
Crime Victims," was distributed across the state to district attorneys' offices and victim services 
agencies. The newsletter met with great response and will become a regular publication of the 
Bureau. 

The Bureau continued to assist the Attomey General in his capacity as chairman of the 
Victim Witness Assistance Board, and in his oversight of the Massachusetts Office for Victim 
Assistance (MOV A). Along with MOV A, the Attomey General sponsored the 1997 Victim Rights 
Conference in April, where over one thousand victim advocates, police officers, and others 
received training on a multitude of subjects affecting victims of crime. 

Assistant Attorneys General assigned to the Bureau continued to serve as the Attomey 
General's liaison to the Massachusetts Chiefs of Police Association and the Westem Massachusetts 
Chiefs of Police Association; and continued to actively participate as a member of the Supreme 
Judicial Court's Standing Committee on Substance Abuse. 



119 



VICTIM COMPENSATION AIVD ASSISTANCE 

The Victim Compensation and Assistance Division provides financial compensation, 
referrals and other assistance to victims of violent crime. Most significantly, it assists qualifying 
victims and their families in paying for out-of-pocket medical expenses, lost wages and other 
crime-related expenses. Since 1 994, the Division has assumed the legal and administrative 
responsibility for receiving, investigating and determining all compensation claims in accordance 
wdth the requirements of G. L. c. 258C. Previously, compensation claims were determined through 
a litigation-based process in the district courts. 

1997 marked the first fiill year of relative stability in the Commonwealth's victim 
compensation program since the 1994 reforms went into effect. The conclusion, in the previous 
year, of a three year backlog of more than 2,000 court-based claims, enabled the Division to focus 
its 1 997 efforts exclusively on streamlining the administrative process and continuing to broaden 
the scope of its mission. 

1. Claims Activity: Despite a reported decrease in the level of violent crime, the number 
of claims filed by victims remained steady. In 1997, the Division received 1,017 claims for victim 
compensation. Unlike the previous year, however, the Division increased its decisional activity, 
issuing decisions in 1 ,222 claims. This 34% increase enabled the Division to reduce its pending 
caseload to 422 claims, a 32% reduction from the previous year's closing caseload of 620 claims. 
This achievement continues a dramatic decline in the Division's pending caseload and 
demonstrates the Division's continuing success in reducing the waiting time for victims needing 
financial relief from their crime-related expenses. After having to wait 2-3 years under the court- 
based system, claims processing has been reduced from approximately six months in 1 996 to 
approximately four months in 1997. Not surprisingly, this year, 90% of victims surveyed by the 
Division report satisfaction or strong satisfaction with the amount of time it takes to decide a claim 
for victim compensation. 

Analysis of the Division's decisional activity shows remarkable consistency fi-om the 
previous year. In 792 of its decisions, (65%), the Division awarded compensation to the claimant. 
In 3 1 3 cases (26%), the Division determined that the claimant was statutorily eligible for 
compensation but did not, at present, have expenses that can be reimbursed under the statute. The 
remaining 1 1 7 claims (9%) were denied because the claimant was not eligible for compensation 
under the requirements of G. L. c. 258C. These percentages are virtually unchanged from the 
previous year. 

Claimants who are found to be statutorily eligible for victim compensation (i.e. all but 9% 
of the claimants in 1997) are entitled to reopen their claims if they incur future crime-related 
expenses. This occurs most often when victims have ongoing rehabilitation or counseling needs. 
In 1997, the Division issued 203 supplemental awards in response to such requests. 



120 



Under G.L. c. 258C, claimants are entitled to seek internal administrative review of the 
Division's decisions. In 1997, claimants requested administrative reconsideration of 74 (6%) of the 
Division's decisions. In 24 cases (33%), the Program Director modified or reversed the 

original decision. The remaining 50 decisions (67%) were affirmed on reconsideration. Again, 
these percentages are virtually identical to the previous year. 

Claimants are entitled, in addition, to seek judicial review of the Division's decisions. In 
1997, seven claimants filed petitions for judicial review. Four of these petitions were either 
withdrawn by the claimant or dismissed by the court. The other three petitions remain pending. 

Analysis of claims resulting in payment also shows virtually no change firom the previous 
year. Crime-type data shows that in 1997, 53 % of all victims receiving compensation were 
victims of assault. Homicide claims represented 25% of awards, followed by child sexual assault, 
(9%), domestic violence (5%), adult sexual assault (5 %) and DWI/DUI (1%). The remaining 2% 
of claims were classified as "other". 

The analysis of victim age data shows that 17% of all awards involved victims under the 
age of 17. Victims between the ages of 18 and 65 represented 80% of all awards, while victims 
over the age of 65 represented 3% of awards. 90% of all compensation awards were made to 
Massachusetts state residents. The remaining 10% of awards involved nonresidents who were 
victimized in the Commonwealth. 

2. Expenditures: In 1997, the Commonwealth paid $3,730,331 in compensation to 
crime victims. This represents a 12% reduction fi-om 1996 expenditures and the first time in four 
years that expenditures have not significantly increased, requiring supplemental fimding to meet 
year-end obligations. The explanation is clear: by finally concluding the backlog of court-based 
cases, pressure on the victim compensation ftmd was finally alleviated, restoring the program to 
relative financial stability. 

Notwithstanding this fact, the Division stepped up its efforts to maximize the benefit of 
vicfim compensaUon fiinding. It conUnued to carefully screen all claims for potential 
reimbursement through hospital-based "fi-ee care", public insurance programs and other sources. 
When these options appeared viable, the Division assisted victims in learning about, and applying 
for, alternative sources of reimbursement. When alternatives were not available, the Division 
actively negotiated with medical and other providers to accept reduced payment on victims' 
outstanding bills. The Division's strong focus on financial advocacy ensured both the prudent 
expenditure of victim compensation funding, and that victims can continue to reopen their claims 
without exhausting the statutory limit of $25,000 per claim. In one case, for example, a crime 
victim with lost wages and over $40,000 in current uninsured medical bills requested assistance 
from the Division. The Division negotiated with his medical providers to accept approximately 
$7,000 in full payment on the outstanding bills. By so doing, the Division was able to fully 
reimburse the victim's lost wages, and will be able to pay for the future purchase and fitting of a 
prosthesis and rehabilitation therapy without exhausting the statutory limit. 



121 



Through these cost-containment efforts, the Division achieved $1,014,929 in savings on 
outstanding bills without placing any additional financial burden on crime victims. This represents 
27% of the Division's overall expenditures and constitutes a 61% increase in savings from the 
previous year. Based on the average award of $3,776, these savings enabled the Division to award 
compensation to an additional 268 crime victims. As importantly, it will enable certain victims to 
continue to reopen their claims for future expenses. 

Analysis of the Division's payment data shows that while the Division is statutorily 
authorized to award up to $25,000 per claim, only 16 administrative claims resulted in the 
maximum award. The average award in 1997 was $3,776, up from $3,062 in the previous year. 
The largest category of payment (40%) was for economic support in the form of lost wages and 
loss of financial support to the dependents of homicide victims. Medical and dental expenses 
represented 28% of all expenses, while funeral and burial expenses represented 25% of expenses. 
These were followed by mental health counseling expenses (7%) and "other expenses" 
(homemaker expenses and attorneys fees), representing less than 1% of expenses. Again, these 
percentages are virtually identical to the previous year. 

Application Procedure: In an effort to further simplify the application process for crime 
victims, the Division issued a new application form which combines an informational brochure 
and application in one document, and reduces the application from six to two pages. Individuals 
wishing to apply now need only complete the simple tear-off application and return it to the 
Division for verification. As one applicant informed the Division, "This is probably the easiest 
and most straightforward government form I've ever seen." 

Outreach and Training: The Division continued its efforts to ensure broad public 
information about victim compensation. The new application/brochure was widely distributed to 
criminal justice agencies throughout the Commonwealth. In an effort to increase referrals from 
police departments, the Division published "Victim Compensation: A Guide for Law 
Enforcement" in the Winter, 1997 Law Enforcement Newsletter. Copies of this article were sent 
with applications and other materials to all state, local and campus police departments. 
Applications were also sent to domestic violence programs, rape crisis centers and other 
community-based programs. Division staff provided in-house training to district attorneys offices, 
police departments, the Coalition of Battered Women Service Groups, the Massachusetts Coalition 
Against Sexual Assault, and community-based victim service programs supported by the federal 
Victims of Crime Act. Finally, in an effort to increase the number of dentists willing to assist 
crime victims under the reimbursement policies of the program, the Division met with dental 
professionals and published "Victim Compensation: Helping Crime Victims Get The Dental 
Services They Need" in the newsletter of the Massachusetts Dental Society. 

Outreach efforts were further enhanced by public service programs. Continental 
Cablevision and the Attorney General's Office produced a 30-minute program about victim 
compensation which included several interviews with victims assisted by the Division. This 
program was aired throughout the state, and, in addition, was distributed to agencies and programs 
as a training tool. The Division also distributed a 30-second public service announcement entitled 
"Victim Compensation: Picking up the Pieces" to television stations across the state. 



122 



Program Evaluation: Having achieved stability in the day-to-day operations of the 
program, the Division undertook to evaluate its services and procedures for purposes of future 
policy development. It surveyed all prosecutor-based victim/witness programs about their 
experiences with victim compensation and their suggestions for improvement. In response, the 
Division streamlined procedures for obtaining police reports and established mechanisms for 
ensuring that referring advocates receive copies of the Division's decisions, thereby facilitating 
direct and regular feedback between programs. 

Begiiming in May, 1997, the Division also began soliciting feedback from victims and 
families who apply to the program. It included surveys with all decision letters, including both 
awards and denials. The 1 3% of applicants who returned the questiormaire provided 
overwhelmingly positive responses to questions about the ease of the application and verification 
process, treatment by Division staff, satisfaction with the time taken to reach decisions, and the 
substance of the Division's decisions. Many victims also included written comments. The 
following examples are typical: 

I do appreciate this award . . . not only is it an enormous relief 
financially but also mentally. I think that somehow your recognition 
gives this whole chapter of my life some kind of validity which it 
needed. I thank you and your staff for your courteous, understanding 
and sensitive handling of my claim... 

... it has helped to know there actually exists a program and 
individuals to assist the victim, especially . . . having been in court and 
listening to a long list of criminals' rights and nothing in regards to 
victims' rights. 

I must state that despite all the bureaucracy of the world today, this 
division of the Attorney General's Office has maintained compassion 
and efficiency with the public. 

The only area in which victims reported the need for greater assistance was with regard to 
referrals to other programs. This result corresponded with the Division's own observation that, 
despite the availability of many excellent commimity -based crisis and counseling programs and 
services, many victims do not access these services. In response, the Division stepped up its 
efforts to ensure that all victims are made aware of the availability of counseling and support 
services, and that they receive referrals to appropriate community-based programs. The Division 
developed comprehensive lists of community-based programs for homicide survivors, domestic 
violence victims, sexual assault victims, child abuse victims, and children who witness violence. 
Applicants are now routinely provided with copies of these lists and informed about the 
availability of victim compensation to assist with crime-related counseling expenses. 

Legislative Activity: In addition to evaluating its administrative procedures, the Division 
undertook to evaluate whether the substantive provisions of G. L. c. 258C are meeting the most 
pressing financial needs of crime victims. To do so, the Division met with focus groups of 



123 



homicide survivors, sexual assault victims, and advocates for battered women. It also consulted 
with District Attorney VictimAVitness program directors, victim service providers and others. 
Finally, it surveyed victim compensation programs throughout the country to learn about benefits 
and services available elsewhere. Following this process, the Division developed a proposal to 
expand certain key benefits currently available under G. L. c. 258C. The proposal is embodied in 
S. 849, "An Act To Further Amend the Victim Compensation Law." This bill, filed by Senator 
William Keating and Representative Sal DiMasi, would permit the program in eligible cases to pay 
for: 

• mental health counseling expenses for non- 
offending family members of sexual assault victims; 

• the cost of cleaning the crime scene, if the crime occurred in the 
victim's home or car; 

• the cost of replacing the victim's clothing, bedding 
or other personal items held by law enforcement 
officials for evidentiary purposes; 

• the cost of replacing the victim's locks, if the crime 
occurred in the victim's home; 

• moving expenses to protect a victim from 
continuing harm by the offender; and 

• ancillary expenses related to the death of a victim 
including travel expenses to identify the body or to 
attend the funeral, or lost wages to attend the trial. 

In addition, the Division sought to expand coverage under G.L. c. 258C to include acts 
of terrorism committed outside the United States against residents of the Commonwealth. This 
expansion was prompted by P.L.I 04- 132, the Antiterrorism and Effective Death Penalty Act of 
1996, which required states to include such coverage as a condition of future federal Victims of 
Crime Act fiinding. The amendment was enacted as an outside section to the 1 998 state budget act. 

Publications: Finally, this year the Division began publishing a statewide newsletter 
designed to highlight important legal developments, outstanding practices and developing trends in 
the field of victim rights and victim services. The first edition of "Focus on Crime Victims" was 
published in April, 1997. It included feature articles about retaliatory "SLAPP" suits against crime 
victims, and about the discovery of confidential counseling records. A special focus section 
addressed the victim's right to confer with the prosecutor, a right established by G.L. c. 258B, the 
Victims Rights Law. Other articles addressed topics ranging from victim compensation to tips for 
interacting with elder victims of crime. The newsletter was widely distributed to judges, 
prosecutors, police departments, victim/witness advocates and other criminal justice personnel, 
legislators and victim service programs. Recipients responding to a follow-up survey uniformly 



124 



stated their view that "Focus on Crime Victims" plays an important and useful role in 
disseminating information, ideas and initiatives that will enhance the rights and services afforded 
to crime victims throughout the state. For this reason, the Division expects to continue to publish 
this newsletter twice a year. 



125 



PUBLIC PROTECTION BUREAU 

The Public Protection Bureau is comprised of five divisions: Consumer Protection and 
Antitrust Division, Regulated Industries Division, Civil Rights and Civil Liberties Division, Public 
Charities Division and Civil Investigation Division. The Bureau also has an office of the Chief 
Prosecutor, which brings criminal actions in appropriate cases. 

The Bureau also includes the Consumer Complaint and Information Section and oversees 
the Local Consumer Aid Fund, which provides grants to local community groups to mediate and 
resolve consumer complaints at the local level. 

The various divisions in the Public Protection Bureau bring affirmative litigation and 
criminal prosecutions on behalf of the Commonwealth and its citizens in the areas listed above. 
The divisions also conduct investigations and publish and issue reports in areas of interest arising 
out of their activities. 

The Bureau also has an office of the Legislative Liaison, who coordinates testimony for 
hearings before the Legislature on issues of concern to the Bureau. This past year, the Bureau 
testified on a variety of legislative items, including: (1) medical records confidentiality; (2) access 
for individuals with disabilities; (3) criminal background checks for nursing facility employees; (4) 
public disclosure of for-profit conversions; (5) health warnings on the advertising of alcoholic 
beverages; (6) health insurance benefits for domestic partners of public sector employees; (7) 
clarifying the laws on the solicitation of charitable donations; (8) electronic shelf pricing; (9) 
extended warranties; (10) community reinvestment by insurance companies; (11) health club 
industry practices; and (12) telemarketing fi^aud. The Legislative Liaison continues to monitor 
legislation that impacts the work of Bureau. 

Bureau personnel also coordinate and staff the Attorney General's Student Conflict 
Resolution Experts (SCORE) Program, a nationally-recognized peer mediation program created to 
reduce violence in schools and foster safer learning environments for students. The SCORE 
program provides grants for the development of school mediation programs using trained student 
mediators to resolve violent and potentially violent conflicts among their peers. The SCORE 
program forges partnerships between educators and mediators to establish quality student-centered 
mediation programs in the Conmionwealth's schools to prevent disputes from escalating into 
violence. 

In the past year, the Attorney General charged the Public Protection Bureau with 
coordinating efforts and taking the lead in two priority areas - elder issues and health care. 
Responding to that charge, the Bureau developed initiatives and legislation in those areas, 
including plaiming and participating in panel discussions at the National Association of Attorneys 
General Presidential Summit on Elder Issues, which was held in Boston in May, 1997. The 
Bureau published What You Can Do to End Violence, Abuse and Fraud Against Elders — A 
Community Checklist and distributed the guide to attendees of the Elder Summit. The checklist 
idenfifies actions that can be taken by the law enforcement community, legal and financial 
advisors, health care professionals, the religious community and educational institutions to reduce 



126 



elder abuse and fraud. In addition, the Bureau also published Choosing the Best Long-Term Care 
Option in collaboration with the Massachusetts Extended Care Federation. The Bureau will 
continue to forge inroads in these areas in the coming year. 

Following the publication of Home Health Aides in Massachusetts: A Report and 
Recommendations, the Bureau formed the Attorney General's Home Care and Home Health Care 
Task Force to work on ways in which the laws, regulations and business practices of the home 
care and home health care industries in Massachusetts can be standardized to ensure the delivery 
of quality, reliable care to home health and home care patients. This working group is comprised 
of representatives of consumer advocacy groups, the home care and home health care industries, 
government agencies and parents with disabled children and others who require home health and 
home care services. As a result of the task force's work, the Attorney General will be filing a 
comprehensive legislative package to (1) amend the Criminal Offender Record Information 
(CORI) statute for home health care and home care employees and volimteers; (2) provide home 
health care and home care employers with immunity for sharing information regarding former 
employees; (3) establish a registry of home health workers; and (4) establish procedures for 
reporting and investigating allegations of abuse, neglect, mistreatment and misappropriation of 
home care consumers' property. In addition, the Attorney General will file a bill that would 
require home health care agencies to be licensed. 

The Bureau also published a report entitled Guardianship in Massachusetts: Where We 
Are and Where We Should Be Headed and participated as a member of the Massachusetts 
Guardianship Task Force and the Committee on Guardianship Reform. As a Massachusetts 
Guardianship Task Force member, the Bureau testified before the Legislature in support of 
legislation to establish a public guardianship commission and reform the guardianship statues. 
The Committee on Guardianship Reform, which includes the Attorney General, probate judges, 
elder and disabled persons advocates and private bar attorneys, is working on revismg Article 5 of 
the Uniform Probate Code to update the state guardianship laws. 

The Steering Committee of the Inter- Agency Task Force on Long Term Care Financing 
also includes various Bureau Assistant Attorneys General. The purpose of this task force is to 
study and develop alternative private financing methods for nursing home and other long-term care 
with a goal of providing financial security to elders and easing the burden on Medicaid. The task 
force is an outgrowth of an interagency workgroup on long-term care financing that met for over a 
year and produced A Preliminary Report: Alternatives for Improving Private Financing of Long- 
Term Care in Massachusetts. This bi-partisan task force is headed by the Acting Governor and the 
Attorney General and includes representatives from the Division of Medical Assistance, Division 
of Insurance, Executive Office of Elder Affairs, the insurance industry, health care and long term 
care providers, and consumer and legal advocates. 

This past year the Public Protection Bureau also established a state-wide toll-free hotline, 
(1-888-AG-ELDER) for senior citizens and their families seeking information on a wide range of 
elder issues. The elder helpline, which is staffed by a hotline coordinator and senior volunteers, is 
available to callers on weekdays during business hours and serves as a comprehensive resource for 
information and referral on concerns including health insurance, home health care, long-term care 



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and insurance, Medicaid and Medicare coverage, disability rights, age discrimination, credit, 
telemarketing fraud and other consumer protection issues. 

Some of the Bureau's other accomplishments in the health care area include publishing 
The Attorney General 's Report on Managed Care in Massachusetts. The report made 
recommendations for a comprehensive regulatory structiire for managed care and was the product 
of a year-long study of the effects of managed care on the health care services provided to 
Massachusetts consumers. The Bureau is also actively pursuing criminal and civil cases involving 
health care fraud against both consumers and insurance companies. 

The Bureau continues to be actively involved with consumer issues and this year repeated 
the Attorney General's successful Consumer University program, an interactive series of consumer 
seminars for Massachusetts elders. The Bureau also participated with the American Association of 
Retired Persons (AARP) in various initiatives, including a conference on telemarketing fraud. The 
Bureau also participated with AARP on the Senior Health Care Coalition, a consortium of 
consumer groups that worked with the Division of Medical Assistance on drafting and revising the 
Division's Senior Care Organization (SCO) proposal for dually eligible senior citizens. 

The Public Protection Bureau also has a liaison to the lesbian and gay community who 
serves as a point of intake and outreach on lesbian and gay issues. The liaison convenes quarterly 
meetings with an advisory group of lesbian and gay law enforcement advocates to discuss issues 
and concerns of mutual interest. The Attorney General's gay liaison also coordinates testimony for 
legislative hearings on gay issues and serves as a member of Attorney General Harshbarger's 
Workforce Diversity Committee, which was created to promote dialogue and identify strategies for 
addressing diversity issues. 



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CIVIL RIGHTS AND CIVIL LIBERTIES DIVISION 
MASSACHUSETTS CIVIL RIGHTS ACT CASES 

The Division continues to enforce aggressively the Massachusetts Civil Rights Act 
(MCRA). The MCRA authorizes the Attorney General to seek injunctive relief when the exercise 
of a person's civil rights is interfered with by threats, intimidation, or coercion based on that 
individual's race, color, national origin, ethnic background, gender, sexual orientation, disability, 
age, or religious affiliation. 

In fiscal year 1997, the Division's mission to deter and counteract such hate crimes 
resulted in the issuance of two preliminary injunctions by the Superior Court against two 
defendants, where it was alleged that the defendants had interfered with the rights of 
Massachusetts residents on the basis of their gender and sexual orientation. Five final judgments 
by consent were also entered by the Superior Court against nine defendants who had interfered 
with the rights of Massachusetts residents on the basis of race, sexual orientation, gender or 
national origin. In total, more than seventeen in-depth civil rights investigations of possible 
MCRA violations were conducted by the Division. 

Following the Division's first landmark MCRA case involving civil rights violations on 
the basis of gender in 1994, the Division continued its campaign against gender-biased violence by 
obtaining a final judgment by consent against one defendant with an alleged history of hate- 
motivated violence and abuse against three women. The defendant allegedly repeatedly physically 
and sexually abused two of the victims, who were 14 and 15 years old when they began dating the 
defendant, and taunted them with vulgar and demeaning obscenities. The defendant also allegedly 
threatened, intimidated and attempted to coerce another woman during the four months he lived in 
her house when he was homeless. 

Another striking example of the Division's strong response to violations of the MCRA 
occurred when it obtained a preliminary injunction and later a ten year final injunction against a 
Chelsea man for his alleged assault of a male whom he thought to be a homosexual. The victim 
and an acquaintance left a bar located in downtown Boston and entered the victim's car. A pink 
triangle, a symbol of the gay community, appeared on the rear bumper of the victim's car. The 
defendant and another suspect allegedly approached the car from the rear, yelling anti-gay slurs 
and threats. When the victim got out of his car, the defendant allegedly punched him in the face. 
When the defendant was subsequently arrested, he declared, "I'm the first of a force of many". 

HOUSING DISCRIMINATION 

The Division consistently continues to enforce effectively the state's fair housing laws 
which prohibit discrimination on the basis of race, color, national origin, religion, sex, sexual 
orientation, familial status, marital status, source of income (receipt of housing subsidy), age or 
disability. 



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In fiscal year 1997, the Division fought discrimination in housing by filing seven new 
actions in the Superior Court. These cases involved allegations of discrimination based on race, 
familial status, source of income and disability. Four pending cases were also favorably resolved 
through court approved consent agreements during this period. Settlements included broad 
injunctive and affirmative relief provisions, as well as substantial compensatory damages to the 
complainants. Collectively, over $60,000 in monetary damages were provided to the 
complainants. Through these and other cases the Division has filed, the Attorney General hopes to 
modify realtor practices, to educate tenants about the right to fair treatment in the housing market 
and to increase the availability of safe, affordable housing for families with young children. 

Members of the Division actively participated in the United States Department of 
Housing and Urban Development (HUD) New England Regional Fair Housing Conference in 
August 1 996, attended by staff from numerous anti-discrimination enforcement agencies, as well 
as housing discrimination attorneys and policy makers. Members of the Division facilitated round 
table discussions among the attorneys and made presentations on the use of creative affirmative 
remedies, discrimination against people with disabilities, and fair housing enforcement and 
coordination. 

EMPLOYMENT DISCRIMINATION 

In fiscal year 1996, the Division established an Employment Discrimination Project to 
focus on systemic employment discrimination practices. The Project investigates allegations of 
discrimination or harassment (race, sex, ethnicity, national origin, age, sexual orientation) in order 
to determine whether a particular employer or industry is engaged in a pattern and practice of 
discrimination, affecting substantial numbers of Massachusetts employees. 

In fiscal year 1997, the Project demonstrated the impact it can have on employment 
practices in the Commonwealth by entering into a historic, court enforceable agreement with the 
Massachusetts Bay Transportation Authority (MBTA) and 26 of its 27 labor unions. The 
landmark agreement ends years of alleged violations of state and federal fair employment laws at 
the MBTA and protects T workers from future discrimination, harassment and retaliatory conduct. 
The Division engaged in negotiations with the MBTA after an extensive sixteen-month 
investigation of allegations of systemic violations of federal and state anti-discrimination laws 
based on race, color, national origin, ancestry and gender dating back to the mid-1980's. The 
Division also investigated allegations of retaliation against employees who filed complaints or 
who served as witnesses to violations of anti-discrimination laws. 

Under the agreement, MBTA management will act to eliminate and prevent harassment, 
discrimination and retaliation based not only on the race, color, national origin, ancestry and sex of 
it's employees, but also on the sexual orientation, religion, age and disability of workers. To 
guarantee lawful future conduct, the agreement requires the T to implement major changes to it's 
complaint investigation practices, disciplinary procedures, supervisory systems, monitoring of 
employment practices, and employee training. In order to ensure that changes are implemented, 
the MBTA is required to submit regular reports to the Division detailing the steps it has taken to 
meet the specific goals and provisions of the agreement. Monthly status reports are required in the 



130 



first year of the agreement, quarterly in the second year and every six months in the third year. 
The T's obligations under the agreement will remain in force for three years but can be extended 
for an additional two years if the Division determines that the MBTA is in noncompliance with 
any provision. These obligations can be extended again if material noncompliance with the 
agreement continues. Some of the key provisions of the agreement include: 

1) Equal Employment Opportunities: The T will post all permanent job vacancies below 
the level of executive management personnel. Postings v^ll include a job description and job 
experience requirements. Minorities, women employees and members of other protected groups 
will be provided a fair opportunity to apply and be considered for promotional and transfer 
positions. 

2) Complaint Investigation Procedures: Current practices will be changed to ensure 
prompt, thorough and fair procedures for investigating complaints of discrimination, harassment 
and retaliation. 

3) Corrective Action and Discipline: The T will take appropriate corrective action in a 
timely manner that is reasonably calculated to stop illegal employee conduct and to deter potential 
violators. Supervisors or employees engaged in harassment, retaliation or other serious forms of 
discrimination are subject to discharge for the first offense. 

4) Supervisory Responsibility: Each supervisor will be accountable for recognizing and 
immediately reporting harassment, discrimination and retaliation, as well as participating in 
investigations. Supervisors will be subject to serious discipline, up to and including discharge, if 
they observe or are informed about racial, religious, national origin, sexually charged or hostile 
graffiti in T facilities, but fail to immediately notify the MBTA Police and Office of Diversity. 

5) Compliance Monitoring: The T will establish a central, computerized system to 
identify patterns of violations of anti-discrimination laws by particular employees or supervisors, 
and to identify locations where such conduct may be occurring. The system also will be used to 
ensure equal treatment of all workers in promotion, assignment and disciplinary decisions. 

Since the signing of the agreement, the Division has received four reports from the 
MBTA detailing it's implementation of the agreement. The MBTA has altered many of its 
investigatory practices to ensure the protection of workers from discrimination and harassment. 
The Division trained the 157 senior managers of the MBTA on their responsibilities under the 
Agreement and federal and state anti-discrimination law. The Division continues to field 
complaints from T employees during the post-agreement period. 

In another effort that serves as a national model for future state and federal joint 
enforcement of civil rights cases, the Division filed a complaint in June 1997 in federal court, 
along with the Equal Employment Opportimity Commission (EEOC), alleging that Bull HN, a 
major information services company, violated the Older Workers Benefit Protection Act 
(OWBPA) - a federal statute that establishes certain criteria an employer must satisfy before 
obtaining a waiver of an age discrimination claim. This effort was the first ever in the United 
States between the EEOC and a state attorney general for enforcement of a federal statute. The 
Division had previously filed a complaint in the MCAD alleging systemic age discrimination 
against Bull HN with regard to it's ongoing layoffs of employees. A complaint was also filed in 
the EEOC against Bull HN alleging violaUons of OWBPA . The EEOC found probable cause to 



131 



believe that Bull HN violated OWBPA and the MCAD subsequently found probable cause to 
believe that Bull HN was violating the state anti-discrimination law. The Civil Rights Division 
and the EEOC then filed the joint complaint against Bull HN in federal court. Specifically, Bull 
HN is alleged to have violated OWBPA in five ways: by chilling the protected right of former 
employees to file age discrimination charges; by failing to provide employees selected for layoff 
with legally required information needed to evaluate the waiver request; by refusing to provide 45 
days to decide whether to sign the waiver; by failing to provide additional severance for signing 
the waiver; and by retaliating against former employees who filed age discrimination claims by 
demanding return of the severance payments. 

The Project also successfully defended the Massachusetts Department of Personnel 
Administration, the City of Boston and the Boston Police Department in a legal challenge by the 
Boston Police Superior Officers Federation and others to the use of affirmative action in 
appointments for lieutenants by the Boston Police Department. On June 13, 1997, the United 
States District Court upheld the affirmative action promotional policies of the department, by 
finding them to be narrowly-tailored and serving a compelling state interest. The court denied 
summary judgment to the Union, granted it to the defendants and ordered judgment to enter 
dismissing the action. 

The Employment Discrimination Project also files amicus briefs or intervenes in pending 
cases in state and federal courts when a legal question is raised which presents an issue of public 
importance. The Project filed an amicus brief in the Supreme Judicial Court in the important 
precent-setting case titled Melnychenko v. 84 Lumber Company. In this case, three male 
employees of 84 Lumber Company were found by the Superior Court to have been relentlessly 
sexually harassed by their male supervisor and another male co-employee. The Attorney General 
took the position that under state law, same gender, hostile work environment under the equal 
protection clause of the U.S. Constitution sexual harassment claims are cognizable if a plaintiff 
demonstrates that offensive sexual conduct interfered with work performance regardless of the 
sexual orientation of the harasser. The Supreme Judicial Court agreed with the Attorney General's 
position and adopted the arguments set forth in the brief This resulted in recognition for the first 
time that Massachusetts employees are protected from same gender hostile work environment 
sexual harassment under the Massachusetts anti-discrimination statute and makes it clear to 
attorneys that inquiry into the sexual orientation of sexual harassment victims is unnecessary in 
pursuing such a claim. 

In November 1996, at an annual conference sponsored by the Attorney General, the 
Massachusetts Municipal Association, and the City Solicitors and Town Counsel Association, the 
Division Chief and the Directors of the Employment Discrimination and the Disability Rights 
Projects of the Division detailed specific steps municipalities need to take to protect workers fi^om 
discrimination and harassment as well as to decrease the risk of financial liability to their 
communities. 



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RELIGIOUS FREEDOM 

The Division joined two other state attorneys general (MD, NY) in fihng an amicus brief 
in the United States Supreme Court in support of the constitutionality of the federal Religious 
Freedom Restoration Act (RFRA) in the case of City of Boeme v. Flores. The federal statute, 
signed into law in 1993, requires government to show a compelling interest to interfere with 
religious practice. In the City of Boeme case, St. Peter Church in Boeme, Texas sued the city 
under RFRA after the city denied the church's request to expand its building. The city claimed 
RFRA was unconstitutional and it was not bound by the Act. In June 1 997, the Supreme Court 
issued its opinion, striking down RFRA, holding that the federal statute which provides important 
religious protections was beyond the authority of Congress to enact. 

POLICE-RELATED MATTERS 

In a cooperative effort to promote civil rights, assist the police, and provide departments 
with technical assistance, the Division continues to provide an extensive amount of civil rights 
training to police departments covering issues of civil liability, sexual harassment, racial and 
cultural awareness and hate crimes. The Division has sponsored many training sessions for police 
officers and police supervisors in cities and towns throughout Massachusetts, including, Brookline, 
sergeants from numerous Cape Cod police departments, police cadets attending regional police 
academies in Boston, Canton, and Salem, as well as Boston School Department Police Officers. 
The Division met with New Bedford City Council and community leaders to develop an effective 
civil rights training program for the New Bedford Police Department. The Attorney General's 
Civil Rights Division along with the Boston Police Department and Northeastem University's 
Center for Criminal Justice Policy Research organized, sponsored and held a three-day statewide 
civil rights and hate crimes training for law enforcement and criminal justice professionals 
responsible for hate crime response and investigations. In October 1996, police officers from 
many police departments throughout the Commonwealth attended and participated. The Division 
also made a presentation at the Attomey General's Campus Police Training on hate crimes and 
sexual harassment at Holy Cross College in Febmary 1997. 

The Division continues to be consulted by departments to assist them in their intemal 
civil rights investigations as well as to investigate allegations of police misconduct itself It has 
worked with departments to take remedial steps when credible evidence is found to substantiate 
the complaints. 

PUBLIC ACCOMMODATIONS 

In November 1996, the Division filed a Superior Court action against the Haverill 
Country Club alleging that the club disparately treats it's female members by charging them higher 
fees and failing to make full golf membership and its accompanying privileges equally accessible 
to women. The lawsuit seeks civil penalties and would prohibit Haverhill from gender-based 
discriminatory membership practices. 



133 



CIVIL RIGHTS IN THE SCHOOLS 

The Division has been active in education and outreach efforts on civil rights issues 
within the state's school systems. Its goal is to assist in educating administrators, teachers, 
students and staff about their rights and responsibilities as it relates to hate crimes, discrimination 
and sexual, racial, national origin and religious harassment in the schools. In January 1997, the 
Division made a presentation to school officials and police from Middlesex County sponsored by 
the Middlesex County District Attorney's Office. The presentation focused on how schools can 
establish systems to identify and address effectively bias crimes and civil rights in the schools. 
The Division Chief was a presenter at a New England regional conference held in February 1997 
in Burlington, Massachusetts on hate crimes prevention and enforcement for law enforcement, 
school personnel and community advocates. The workshop discussion was titled "Hate Crime 
Prevention - School Climate, Policies and Protocol." The Division also made presentations at a 
conference sponsored by the Essex County District Attorney's Office in March 1997 titled, 
"Partnership for Violence Prevention", which focused on school safety and civil rights. The 
Division also spoke to three fifth grade classes at the Avery School in Dedham about civil rights 
and sexual harassment. The Division is also involved in the Attorney General's Office internal 
"Children's Issues Working Group," which focuses on children's issues in the schools. 

In other initiatives related to civil rights in the schools, the Division Chief provided a 
presentation at a national training conference sponsored by the U.S. Department of Education held 
in January 1997 in Washington, D.C. The Division Chief provided bias crime and sexual 
harassment training to Bias Crime and Gender Equity Grantees of the U.S. Department of 
Education from throughout the coimtry, including a Massachusetts' grantee. The Chief made a 
presentation at another national conference for Safe and Drug Free Schools sponsored by the U.S. 
Department of Education in June 1997 titled, "Promising Practices in the Area of Bias Crime 
Prevention" in Virginia. The presentation focused on developing law enforcement-school 
partnerships in order to identify, address and respond to hate crimes and harassment in schools. 

CIVIL RIGHTS LEGISLATION 

With strong leadership from the Attorney General and his Civil Rights Division, the 
legislature passed an amendment to the state criminal civil rights statute, G.L. c. 265 section 39, 
which extends the protection of this statute to persons who are victimized by a crime because of 
their sexual orientation or disability. The amendment also permits a felony prosecution for 
criminal acts where serious bodily injury results, where previously such violations under the 
statute were misdemeanors. The bill also provides financial restitution directly to victims. The 
Division also drafted a letter to the Judiciary Committee leadership in support of an amendment to 
the same statute in order to make crimes based on gender bias a hate crime. 

The Division drafted an amendment to the state anti-discrimination law in response to the 
Supreme Judicial Court's decision declaring unconstitutional the section of the state anti- 
discrimination law which protects employees' rights to practice religion, subject to reasonable 
accommodation by an employer. 



134 



In letters to the state legislature, the Attorney General advocated for the passage of 
legislation supporting domestic partnership benefits and the repeal of archaic sex laws, which are 
both pending in the Legislature. 

HATE CRIMES TASK FORCE 

The Chief of the Division continues to chair and Division staff continue to actively 
participate in the Attorney General's Interagency Law Enforcement Hate Crimes Task Force. The 
Task Force consists of federal, state and local prosecutors and law enforcement officials. Its focus 
is to coordinate efforts to investigate and prosecute hate crimes in the Commonwealth. It also 
organizes and sponsors presentations on an ongoing basis to develop increased expertise and 
cooperation among law enforcement. In March of 1997, the New England Office of the Anti- 
Defamation League and the Boston Office of the FBI made presentations to the Task Force. 

RACE AND ETHNIC BIAS IN THE COURTS 

As a result of the findings in the report of the Supreme Judicial Court Commission on 
Race and Ethnic Bias in the Courts issued in September 1 994, the Division has taken a leadership 
role in an office- wide Task Force. The Division Chief chairs the Attorney General's Task Force 
on Race and Ethnic Bias in the Courts and Division staff serve as active members. The Task 
Force consists of subcommittees on Cultural and Linguistic Barriers to the Justice System, 
Education and Training, Sentencing, and Jury and Jury Pools. 

In an effort to address cultural and linguistic barriers in the courts, the Task Force 
published and distributed a booklet to assist victims of domestic violence to understand their rights 
and provide them with helpful resources and contacts. The booklet is available in eight languages. 
The Division Chief also helped to develop and served as a co-trainer of Superior Court Judges and 
on another occasion, judges from various departments in the Judiciary, on cultural and linguistic 
barriers to equal justice in the judicial system. The Division Chief was the co-author of a law 
review article titled, "The Role of Counsel and the Courts in Addressing Foreign Language and 
Cultural Barriers at Different Stages of a Criminal Proceeding," which was published by the 
Western New England Law Review in June 1997. The article extensively reviews the state of 
criminal law at all stages of criminal proceedings as it relates to language and cultural issues. 

The Division played a major role in organizing the Attorney General's Race Forum titled, 
"Race on Trial-The LA Cases," which was comprised of a panel of prosecutors, defense counsel 
and other legal professionals to address the impact of race on the justice system. The forum 
discussion was facilitated by the Attorney General. In July of 1996, the Education and Training 
Subcommittee presented an innovative program to address the issues of diversity in the workplace. 

MORTGAGE LENDING DISCRIMINATION 

In August of 1996, the Division Chief published a chapter titled "A Practical Model for 
Investigating Mortgage Lending Discrimination by Financial Institutions," in a 716-page book 
titled Mortgage Lending. Racial Discrimination and Federal Policy by the Urban Institute Press. 



135 



NATIONAL CIVIL RIGHTS INITIATIVES 

As Chair of the National Association of Attorneys General (NAAG) National Adarand 
Working Group, the Division Chief was one of the leading organizers for and participated in 
roundtable discussions with forty leading litigators, policy makers, researchers and economists to 
assist states, municipalities and the federal government in defending business utilization and 
affirmative action programs in contracting and procurement for minorities and women. The 
Division Chief prepared an article summarizing the roundtable discussions which was published as 
the lead article in the NAAG Civil Rights Newsletter which is distributed to all state attorneys 
general offices in the fall of 1996 entitled, "Summary of Recent Discussions at Executive 
Roundtable on Designing and Defending Affirmative Action and Business Utilization Programs." 

The Division Chief continued to work as the National Chair of the NAAG Civil Rights 
Working Group and its four Task Forces to facilitate national litigation and policy initiatives in the 
area of bias crimes, mortgage lending, housing and disability rights. Members of the Division 
continued working on the Task Force's litigation and joint policy initiatives subcommittees to 
address emerging issues in fair housing. 

The Division Chief was the lead organizer of the fourth annual National Association of 
Attorneys General Civil Rights Conference held in March of 1997 in Florida. Members of the 
Division made presentations at the conference on employment discrimination and the Attorney 
General's Task Force on Race and Ethnic Bias as well as on cultural and language barriers to equal 
justice. 

OTHER SIGNIFICANT DIVISION INITIATIVES 

The Attorney General believes that proactively working with various authorities and 
organizations through education and outreach is also an effective approach to eliminating hate 
crimes, discrimination and harassment. Some of the Civil Rights Division's efforts include: 

-Providing technical legal assistance in the development of the Asian- American Civil 
Rights Resource Guide which was published in April of 1997; 

~A presentation to the Anti-Defamation League's Civil Rights Committee on the 
prosecution of hate crimes and the Division's civil rights trainings of police; 

-A presentation with the Community Reinvestment Coalition, that focused on the 
insurance industry's failure to serve urban communities in Massachusetts; 

-A presentation at a Mediation and Diversity training, sponsored by the Boston Housing 
Authority, on the impact of and importance of addressing hate crimes, discrimination and 
harassment; 

-The Division Chief drafted a chapter on language barriers and the right to an interpreter 
in an article entitled "On Your Own" in the Massachusetts Bar Association Legal Guide for 
Immigrants; 

-A presentation at the NAACP New England Regional Conference on the issues of 
addressing and responding to police misconduct; 



136 



-A member of the Division has authored one and co-authored another article for the 
Individual Rights and Responsibilities Section of the Massachusetts Bar Association. The first 
article is titled, "Attorney General files an Amicus brief in Support of Same Gender Sexual 
Harassment Claim" and the other is,"Blanket Disqualification fi-om Employment for Certain 
Disabilities Violates State Law Under Most Circumstances"; 

-A member of the Division was a speaker at a Northeastern University School of Law 
"Forum on Hate Crimes" and presented on how hate crimes affect our community, the AG's role 
in handling hate crimes and the types of remedies that are available to victims of hate crimes; 

-A member of the Division presented an overview of the Massachusetts Civil Rights Act 
at a program titled, "Somerville Unites for Human Rights"; 

-A presentation to the Greater Boston Civil Rights Coalition on the goals, priorities and 
accomplishments of the Attorney General's Office in the area of employment discrimination. 

DISABILITY RIGHTS PROJECT 
ENSURING ACCESS TO PRIVATE BUSINESSES 

The Disability Rights Project continues to work hard to ensure that private businesses are 
accessible to and do not discriminate against individuals with disabilities. Often this involves the 
removal of not only physical barriers, but communication barriers as well. 

The Project received a complaint that a South Shore movie theater did not have the 
required assistive listening systems ("ALS") in place so patrons with hearing impairments could 
hear the movies. Project staff contacted the movie management and obtained assurances that the 
necessary equipment would be made available at their theaters, that staff would receive training 
concerning its use, and that the equipment would be maintained properly. 

A man with a rare disability who had been repeatedly refiised service by a pub on the 
North Shore filed a complaint conceming his improper treatment. The Project sent a demand 
letter. The Pub acknowledged its error and changed its policies. All employees were required to 
receive training on state and federal and disability laws, and the owner issued a written apology to 
the man. 

A disability advocate in Marblehead filed a complaint alleging that a movie theater had 
treated her improperly when she tried to attend a movie with a non-disabled companion. Although 
the law requires that theaters afford accessible seating for people with disabilities and removable 
seating for non-disabled companions, theater staff forced her to sit by herself, away from her non- 
disabled companion. After receiving our demand letter, the theater remedied the problem by 
providing sufficient accessible seating and removable chairs for companions. 

In December, Project staff conducted a final access review of the hotel and trade center in 
central Massachusetts to ensure that the last set of access problems had been resolved. In fact, the 
hotel had addressed some additional issues that had arisen since the filing of the consent judgment. 
As a result of our lawsuit, the hotel is now one of the most accessible hotels in the state. After the 
hotel hosted a recent statewide conference of independent living centers, the organization sent 



137 



hotel management a letter expressing its appreciation for how folly accessible the hotel had 
become. 

MUNICIPAL ACCESS 

The long-standing municipal access case involving the Town of Spencer was resolved 
this past quarter when the Town implemented the final set of access remedies to make its Town 
Hall fully accessible to citizens with disabilities. 

PROTECTING FAIR HOUSING RIGHTS OF INDIVIDUALS WITH DISABILITIES 

The Project continues to be involved with ensuring that the state and federal fair housing 
rights of individuals with disabilities are safeguarded. Increasingly, mvmicipal officials proactively 
contact our office to ensure that their actions or policies comply with the law. 

The city solicitor of Lynn sought our view as to whether a proposed use of several 
properties by the Catholic Charities Bureau, the establishment of two small group homes to be 
used as "Bridge Homes" for children entering the DSS placement system for the first time, would 
fall within the educational use exemption of Chapter 40A. The Project reviewed the materials and 
confirmed the solicitor's understanding that the proposed project would be a protected use under 
40A. 

The city planner and city solicitor for Taunton, asked for our interpretation of whether 
Taunton could require, consistent with Chapter 40A, an OFC residence to go through a site review 
hearing, where single family residences are not subject to the same procedural requirement. The 
Project explained why imposing an additional requirement on the residence would violate the non- 
discrimination requirements of Chapter 40 A, and thus Taunton would not be able to require the 
OFC residence to do so. The Project also sent the city officials a copy of our publicafion, 
"Protecting the Right of Your Client to Live in the Community of Their Choice." 

The Department of Mental Health ("DMH"), which was working in conjunction with the 
Pittsfield Housing Authority, contacted us because it had encountered difficulties in its attempt to 
establish a community residence due to Pittsfield's zoning ordinance which prohibited a 
community residence ft-om locating within 1000 feet of another such residence. (As it turns out, 
the proposed residence would be only 800 feet from an existing one.) The planning board had 
recommended that the 1000 foot provision be deleted fi-om their zoning ordinance. The matter 
was scheduled to be heard by the city council. The mayor, who had supported the establishment of 
the residence and the repeal of the provision, wanted support for what he anticipated would be a 
close vote. We prepared a letter which outlined the non-discrimination requirements of state and 
federal fair housing laws, and which urged repeal of the provision. DMH presented our letter at 
the council meeting and the ordinance provision was repealed. 

Growing out of a series of fair housing disputes between Boston and EOHHS agencies, 
EOHHS has been working hard to reestablish a prior city-state agreement concerning the siting of 
community residences within Boston. The agreement establishes the process by which the city and 



138 



state would attempt to coordinate their housing efforts and to resolve disputes that arise. At the 
request of EOHHS, our office reviewed the document for potential fair housing problems with 
representatives of EOHHS, and shared our analysis of the document with them. 

We were contacted by the attorney for Housing Assistance Corporation, a non-profit 
corporation that wished to establish a residential program for individuals in recovery from 
substance abuse (Angel House) on the Cape. He alleged that the residence was not being afforded 
its rights under Chapter 40A (the "Dover Amendment"), which generally exempts educational uses 
from local zoning restrictions. Although counsel for the residence felt that they had presented clear 
and convincing evidence to qualify under c. 40A's exemption, the building inspector took the 
position that the residence was not entitled to the exemption, in part because the proposed 
residents did not have the more traditional disabilities of mental retardation or mental illness. 
Tovm counsel also requested our involvement, seeking our analysis. We sent a letter to the 
inspector discussing the c. 40A case law. We also assisted counsel for the residence, by reviewing 
with him what supplemental information should be submitted to meet the state standards. The 
inspector reviewed the new materials and found the residence to be entitled to the statutory 
exemption. Town coimsel stated that he was pleased with how the matter was resolved and "was 
proud to be part of the process." 

COMMUNITY EDUCATION 

At the inauguration of the Project, the Attorney General emphasized the importance of 
community education to increase people's understanding of and compliance with state and federal 
disability rights laws. Toward that end, the Project has issued legal advisories on a number of 
important issues, participated in various trainings and seminars, and published community 
education materials. 

LEGAL ADVISORIES 

On July 26, 1996, the sixth anniversary of the enactment of the ADA, our office, in 
partnership with the Department of Justice, issued an advisory concerning the legal rights of 
individuals who use service animals. The advisory, signed by Attorney General Harshbarger and 
Deval Patrick, explained, in a question and answer format, the legal obligations imposed by state 
and federal law on places of public accommodations including, retail, restaurant and lodging 
establishments. We sent the advisory to the professional associations for those Massachusetts 
three business sectors who agreed to distribute it to their members. In total, approximately 2600 
businesses received copies of the advisory. In addition, approximately 1200 members of the 
disability advocacy community received it in a mailing from the Massachusetts Office on 
Disability. The Massachusetts Commission for the Blind also disseminated the advisory to its 
clients on its electronic bulletin board. 

After learning of the disparate treatment that workers with cancer have experienced in the 
workplace, the Project prepared an advisory which discusses the employment rights of workers or 
applicants who are receiving treatment for a serious illness such as cancer, HIV or AIDS. The 
advisory discusses the application of the ADA, Ch. 15 IB and the Family Medical Leave Act to 



139 



workers with these disabilities and offers the assistance of the DisabiHty Rights Project in helping 
to sort out these mandates. We sent it to business organizations such as the Associated Industries 
of Massachusetts and the Retailers' Association of Massachusetts. 

The MA Attorney General's Office, the U.S. Department of Justice, and the U.S. 
Department of Housing and Urban Development promulgated a joint advisory to building 
inspectors and others in January, 1 997 which sets forth the accessibility requirements relative to 
newly built housing, to ensure compliance with the construction and design requirement of the 
federal and state fair housing laws. 

SEMINARS, CONFERENCES AND TRAININGS 

— Presented on the fair housing rights of individuals with disabilities at fair housing 
conference sponsored by Citizens Housing and Planning Association ("CHAPA"); and at several 
Massachusetts Continuing Legal Education ("MCLE") programs on disability rights; 

~ Project staff worked with the Real Estate Board and the Massachusetts Realtors 
Association on their new mandatory training curriculum for people renting or selling real estate in 
Massachusetts and wrote the training curriculum on fair housing law, including those provisions 
specific to individuals with disabilities. 

-- Lectured on the legal rights of students with disabilities at The College Board New 
England Regional Meeting; and on the legal rights of parents with disabilities when the state 
attempts to terminate their parental rights, at the Continuing Legal Education Program on Children 
and Family Law for CPCS Appointees. 

— At the Attorney General's annual Municipal Forum, discussed how municipalities can 
affirmatively use the administrative requirements of Title II of the ADA (grievance procedure, 
notice, etc.) to reduce the risk of municipal liability. 

— Conducted a presentation on the Employment Rights of Employees and Applicants 
with Disabilities for the entire Supervisory staff of Barnstable County. 

Project staff also wrote several articles: 1) "Protecting the Right of Your Clients to Live 
in the Community of Their Choice" chapter in course book for MCLE Program "Housing and 
Disability;" and 2) "State Enforcement of Disability Rights," which describes the work of the 
Project for the spring issue of the MBA's Individual Rights & Responsibilities Section Newsletter. 



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 out reach, and mediating individual complaints through the 
Consumer Complaint and Information Section and the Local Consumer Programs. 



140 



In fiscal year 1997, the Division obtained judgments or entered into settlements for the 
following amounts: 

CIVIL PENALTIES/ATTORNEYS' FEES/COSTS $2,329,610 

CONSUMER RESTITUTION $1,175,485 

LOCAL CONSUMER AID FUND $ 270,962 
OTHER: 



McNeil PPC, McNeil Consumer 
Products Co., Arthritis Foundation 

American Lead Abatement, 
Douglas Williams, James Judge 

Sportsworld, Inc. 

Judith Bailey; Adoption Center, Inc. 



In re: Disposable Contact 
Lens Antitrust Litigation 

Zeneca, Inc. 



$250,000 to N.I.H. research. 
30 hours of community service. 



$750 worth of sports equipment contributed to 
the Jimmy Fund 

Transfer of real property valued at over 
$200,000 to The Adoption Center, Inc. 
charity. 

Mail order lens distribution; free coupons and 
$35 rebates to customers 

$25,000 contribution to Community Involved in 
Sustaining Agriculture 



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ADOPTION SERVICES 

Comm. V. Adoption Center. Inc. and Judith Bailey i 

In April 1997, CPAD entered into a consent judgment in Middlesex Superior Court with 
Judith Muzzioli Bailey, the former operator of The Adoption Center, Inc. CPAD previously filed 
a civil action against Ms. Bailey and the adoption agency she directed, alleging various types of 
misconduct, including: the alteration of documents reflecting the medical backgrounds of birth 
mothers; false and illegal billing of adoptive parents; misrepresentations to adoptive couples about 
services and billing; diversion of agency funds to Ms. Bailey's personal use; excessive 
compensation paid to Ms. Bailey; and failure to have a disinterested Board of Directors overseeing 
the adoption agency, which is organized as a charity under Massachusetts law. 

The consent judgment requires that Judith Bailey may not offer any child adoption service 
nor accept any compensation for any activity related to adoption for the period of one year and she 
is barred from offering adoption services in Massachusetts for an additional six months thereafter. 
In addition, the Commonwealth received $144,000 to distribute to former clients of the Adoption 
Center, who are entitled to refunds under the original contracts they entered into with Ms. Bailey's 
organization. The judgment also required Bailey to transfer two parcels of land valued at 
approximately $200,000 to The Adoption Center, Inc., a charity under new management and a new 
board of directors. 

Comm. V. Madeline Daniels and Cambridge Adoption and Counseling Associates. Inc. 

In May 1997, CPAD filed a consent judgment in Suffolk Superior Court with Cambridge 
Adoption and Counseling Associates ("CACA"), of Watertown MA, and CACA's director 
Madeline Daniels to resolve a suit filed against CACA and its director alleging a variety of unfair 
and deceptive acts and practices, including misrepresentations to adoptive couples about services 
and billing. 

The consent judgment provides $50,000 in restitution for affected consumers, and 
requires Daniels and CACA to follow a set of procedures in accord with current Office for 
Children adoption regulations, including the distribution of written disclosures regarding pricing, 
policy and procedures, to ensure that the problems involved in this case do not recur. 

AMICUS BRIEFS 

Welch V. City of Peabody. et al. 

In June 1 996, CPAD filed an amicus memorandum during the two-day 
trial of this Essex Superior Court action, in which the owners of Welch's Mobile Home Villa in 
Peabody sought to prevent the Peabody Rent Control Board from redetermining rents at Welch's 
and seven other parks in the City. CPAD argued that the action was actually a collateral attack 
seeking to challenge the rulings on cross motions for summary judgment entered in favor of the 
Commonwealth in Commonwealth v. Peabody Rent Control Board, et al. In addition, CPAD 
argued, inter alia, that only the Office of the Attorney General may challenge the right of the Rent 
Control Board's hearing officer to hold office, under the doctrine of quo warranto, and that the 
state statute authorizing mobile home park rent control was constitutional. 



142 



Quinn v. Peabody Rent Control Board and 
Kapamagian v. Peabody Rent Control Board 

In August, 1996, CPAD filed an amicus memorandum in support of the 
Peabody Rent Control Board, which had redetermined the rents at two Peabody parks, as ordered 
in CPAD's case. Commonwealth v. Peabody Rent Control Board. Quirm and Kapamagian, owners 
of Red Hill Estates and Little Trailer Park, respectively, filed appeals under the Administrative 
Procedure Act, seeking reversal of the Board's decisions redetermining their rents. In its amicus 
memorandum, CPAD argued, inter alia, that the new rents were constitutional because they did not 
effect a Taking under the Just Compensation Clause, did not violate the Contract Clause, and 
contained adequate Emergency Preambles. In addition, CPAD argued that G.L.c. 40O, eliminating 
rent control statewide, contained an explicit exemption for mobile home park rent control. 

ANTITRUST 

Stop & Shop/Roval Ahold Merg er 

In July 1 996, CPAD entered into a consent decree in the United States District Court for 
the District of Massachusetts that approved the acquisition of the Quincy-based Stop & Shop 
supermarket chain by Royal Ahold, nv, on the condition that Royal Ahold sell two stores in 
Massachusetts in areas where competition would be threatened by the merger. 

The Federal Trade Commission, which worked with CPAD in reviewing the merger, and 
the Attorneys General of the states of Connecticut and Rhode Island filed separate agreements with 
the merging parties. In all, the agreements require the divestiture of 30 stores and two sites in the 
three states. 

The consent decree also requires that Royal Ahold be bound by the terms and obligations 
of an earlier consent agreement negotiated in the merger of Stop & Shop and the Purity Supreme 
supermarket chain, which was approved in October 1995. 

Comm. V. Vistakon. et al. 

In December 1996, CPAD and 21 other states filed an antitrust lawsuit in federal court 
against three contact lens manufacturers (Vistakon, Bausch & Lomb, Inc., CIBA Vision Corp), and 
optometrists, individually and through their professional associations, including the American 
Optometric Association. 

The states allege that the defendants conspired to restrain consumer access to the 
prescriptions or work orders needed to obtain contact lenses and to eliminate the supply of contact 
lenses to mail order companies, pharmacies, buying clubs and other alternative channels of 
distribution. 

In May 1997, the states entered into a consent judgment with CIBA Vision, Inc., 
requiring CIBA Vision to pay to consumers who buy lenses fi-om any of the defendants a cash 
rebate of $35 dollars following the purchase of certain CIBA lenses. In addition, consumers will 
receive free coupons for other lens care products. CIBA is also required to pay $5 million to a 
settlement fund. Subsequent to the state actions, CIBA changed its distribution policy so that 



143 



consumers can get lenses through aUemative distribution channels, and agreed to keep the 
distribution policy in place for five years. 

Farm Chemicals Antitrust Investigation 
American Cyanamid 

In February 1997, American Cyanamid Co., one of the country's largest manufacturers of 
agricultural chemicals agreed to pay $7.3 million as part of a nationwide settlement of claims that 
the company violated antitrust laws by using dealer rebate programs to set minimum retail prices 
for crop protection chemicals. Massachusetts' $75,995 share of the settlement amount will be 
used for antitrust and consumer protection enforcement, and to reimburse the cost of this 
investigation by CPAD. 

The Attorneys General charged that American Cyanamid' s CROP and APEX rebate 
programs violated the antitrust laws by requiring dealers to sell the company's crop protection 
chemicals at or above specified retail prices in order to qualify for rebates of up to 1 2% of 
American Cyanamid's wholesale prices. Massachusetts also alleged that these practices were 
unfair and violated the Massachusetts Consumer Protection Act. 

The consent judgment prohibits American Cyanamid from conditioning the payment of 
dealer rebates on the resale prices at which dealers offer to sell crop protection chemicals. It also 
prohibits American Cyanamid from otherwise agreeing with dealers to control or maintain the 
dealers' resale prices for these chemicals. 

Zeneca 

In June 1997, Zeneca, Inc., of Wilmington, Delaware, agreed to pay $3.9 million to a 
group of forty-seven states, including Massachusetts, and the District of Columbia and Puerto 
Rico, as part of a settlement of claims that the company violated antitrust laws by using dealer 
rebate programs to set minimum retail prices for crop protection chemicals. 

A multi-state investigation found that Zeneca, beginning in the late 1 980's and continuing 
through 1993, used its Stewardship Bonus Program to influence the pricing practices of its 
distributors on the resale of its agricultural products. The states concluded that the Stewardship 
Bonus Program violated state and federal antitrust laws by allegedly requiring its dealers to price at 
or above a Zeneca price schedule in order to receive cash rebates. Zeneca withheld rebates if the 
prices were not followed. 

The settlement prohibits Zeneca, Inc. from operating similar programs in the fiiture and 
requires Zeneca to pay $45,308 to the Commonwealth. 

AUTOMOBILES 

Lemon Law Arbitration Enforcement Actions 

Comm. V. M&B Auto Repair. Inc. November 96. 

Comm. V. Viking Motors February 97 

Comm. v. Peter Sarkis d/b/a Riverside Garag e February 97 



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Comm. V. New England Auto Sales & Service. Inc. March 97 

These cases were filed by CPAD in FY 97 to enforce used car lemon law arbitration 
awards that were not paid by the car dealer. Pursuant to the Used Vehicle Lemon Law, failure to 
pay an arbitration award is a violation of the Massachusetts Consumer Protection Act. 

Comm. V. Guy Axeil Emmanuel 

In July 1996, CPAD filed a complaint in Middlesex Superior Court against Guy Axell 
Emmanuel, and his various businesses, Axell International, Anchor Shipping, and Axell Airways 
International, Inc., who had charged consumers up to $2,400 each to deliver cars and trucks to 
Haiti, but left 1 80 vehicles at the Fall River State Pier and failed to refund consumers' payments. 

CPAD sued Guy Axell Emmanuel and sought a restraining order when it obtained 
evidence that Emmanuel had collected thousands of dollars in shipping fees, but had no ship and 
was seeking new fees from consumers in order to pay previous creditors. Judge Hiller Zobel issued 
the restraining order and a preliminary injunction barring Emmanuel from collecting shipping fees 
or otherwise participating in the shipping business. CPAD then obtained the release of the 
consumers' vehicles from a creditor of Axell, who had attempted to seize them, and worked with 
the Fall River Pier Line to ensure the return of the 180 vehicles to their owners. 

Comm. V. M.J.C. Enterprises d/b/a Grand Prix Auto Sales; Mark Colang elo 

In September 1996, CPAD obtained a contempt order against M.J.C. Enterprises d^/a 
Grand Prix Auto Sales and its principal, Mark Colangelo requiring the defendant to pay 
outstanding amoimts due imder a previously obtained consent judgment and also to pay a $10,000 
penalty. The previous consent judgment, which resolved the Commonwealth's allegations that the 
defendant used unfair and deceptive acts and practices in the sale and repair of used cars, 
permanently enjoined Colangelo from owning, operating, or working for a new or used car 
dealership and required the defendant to pay restitution to consumers. 

The present action was commenced when Colangelo failed to make the required 
restitution payments. 

Comm. V. Marlboro Auto Exchang e 

In January 1997, CPAD filed a consent judgment against Marlboro Auto Exchange, Inc., 
a used car dealer located in Marlboro, Massachusetts, and its President, Howard J. Wilner, 
resolving claims that Marlboro Auto Exchange and Wilner violated the Massachusetts Consumer 
Protection Act in connection with the sale and service of used cars. 

CPAD alleged that Marlboro Auto Exchange had engaged in a variety of unfair or 
deceptive practices, including selling defective and unsafe used cars; failing to honor the 
obligations imposed upon them by the Used Vehicle Lemon Law; and making material 
misrepresentations concerning repairs allegedly performed on used cars brought in for service. 

The consent judgment enjoins Marlboro Auto Exchange and Wilner from engaging in the 
unfair or deceptive practices identified in the Complaint. The defendants also agreed to pay 
$10,000 in restitution to consumers. 



145 



Comm. V. Nickerson Enterprises. Inc. . et al. 

In April 1997, CPAD entered into a consent judgment with Nickerson Enterprises, Inc. 
d/b/a Route 38 Auto Sales and Americar Superstore and its owner, Daniel Nickerson. CPAD 
alleged that the dealerships misrepresented the condition of vehicles for sale, failed to perform 
warranty repairs or performed faulty repair work, and misrepresented the coverage or availability 
of extended warranties sold to consumers. 

Under the terms of the consent judgment, the defendants were required pay $36,000 in 
restitution to affected consumers and to conduct their auto sales and servicing business in 
compliance with all applicable laws and regulations. 

Automobile Advertising Cases 

In the Matter of General Motors, Honda. Isuzu and Mitsubishi 

In November 1 996, CPAD entered into an assurance of discontinuance with four major 
automobile manufacturers that promises to change the way auto leases are advertised across the 
country. Twenty-three other states and the Federal Trade Commission also filed settlements 
contemporaneously with the CPAD settlements. 

The settlement with General Motors, Honda, Isuzu and Mitsubishi concerns ads that were 
allegedly deceptive because they told consumers they could lease cars for "0 Down" or "nothing 
down." In fact, customers had to have as much as $780 in the form of first months' lease payments 
and security deposits before they could lease the cars. 

The agreement requires that when companies advertise an amount down, they must tell 
consumers the total amount the consumer must pay in a way that is not only clear, but is just as 
conspicuous as the initial statement. 

General Motors and Mitsubishi are also required to clearly and conspicuously disclose 
final "balloon payments" in vehicle purchase advertisements. In the past, these companies have 
advertised a monthly payment amount, while disclosing only in tiny print that customers must pay 
almost $ 1 2,000 at the end of the contract to own the car. The agreement requires that these large 
payments now must be disclosed prominently and in close proximity to the highlighted monthly 
payments in a way that is both readable and understandable to consumers. 

The manufacturers will also pay at total of $1 million dollars to the states in settlement 
of this matter. 

Comm. V. Mazda Motor of America 

In December 1996, CPAD entered into a consent judgment with Mazda requiring the car 
manufacturer to reform its national auto leasing advertisements and pay a total of $857,500 to 20 
states. CPAD alleged that Mazda's "zero down" and "penny down" lease ads, which aired on 
national network and cable television programs for several months earlier this year, were deceptive 
since a consumer actually must pay approximately $900 in up-fi-ont fees for the advertised leases, 
including a $450 "acquisition fee." 



146 



The consent judgment prevents Mazda from misrepresenting the amount of up-front lease 
costs, including the amount "down," the "downpayment" or the "capitalized cost reduction." The 
company also agreed to comply with the federal "truth-in-leasing" regulations by disclosing all 
required lease terms in a clear and conspicuous manner. These terms include the total amount of 
up-front lease costs, and the number, amoimt and timing of scheduled payments. Mazda also will 
be bound under the agreement to comply with changes to federal leasing regulations which will go 
into effect in October 1997. 

CIVIL FORFEITURE 

Comm. V. One 1988 Honda Accord Sedan 

In February 1997, a default judgment was entered in this civil forfeiture action brought in 
Worcester Superior Court in July 1995, involving the forfeiture of an automobile that was used in 
connection with illegal drug activity. Pursuant to the default judgment, the court ordered the 
automobile be forfeited to the Commonwealth 

Comm. V. One Parcel of Land and Building s 

at 688-692 Moody Street, Waltham, et al. 

In June 1997, CPAD obtained a consent judgment in this civil forfeiture/nuisance action 
involving a parcel of real estate that was allegedly used for drug activity. The consent judgment 
enjoins the landlord from permitting drug activity on the premises. 

COMPUTER AND INTERNET CASES 

In the Matter of Packard Bell/NEC 

In October 1996, CPAD filed an assurance of discontinuance with Packard Bell to settle 
allegations that it sold computers as new when they actually contained parts from computers that 
had previously been sold to consumers and returned. 

Under the agreement, Packard Bell must place a prominent notice on all of its boxes 
explaining its practice of including components from previously sold computers in the computers 
and monitors that it sells as new. In addition, such components must be covered by the Packard 
Bell original product warranty for new products. The company must also provide notices outlining 
the practice for display wherever their computers are sold. Packard Bell also agreed to pay 
$1,540,000 in attorneys' fees and investigative costs to the 22 states involved in the investigation. 
Massachusetts received $70,000. 

Comm. V. Robert Novel lo d/b/a VE Services 

In October 1996, CPAD obtained a consent judgment against Robert Novello who 
advertised and sold videos on the Internet through Usenet groups, and on his own web page using 
the business name "VE Services." 

The videos contained footage allegedly taken with hidden cameras inside women's locker 
rooms, rest rooms and shower facilities, without the knowledge or permission of those being 



147 



filmed. Contemporaneously with the filing of the complaint, CPAD obtained a temporary 
restraining order against Novello enjoining him from advertising or selling the videos. 

The consent judgment bars Novello from advertising or selling "Voyeur Videos" on the 
Internet, or by any other means. The judgment also requires the defendant to pay $7,500 in civil 
penalties. 

In the Matter of Compaq Computer Corp. 

In November 1996, CPAD filed an assurance of discontinuance against Compaq 
Computer Corporation of Houston, Texas which restricts access to packaging which could be used 
by independent dealers to deceptively market used machines as brand new. Under an agreement 
with Massachusetts and 21 other states, the company will no longer provide dealers with such 
materials as extra marked boxes and factory sealing tape. Such materials have in the past been 
provided to replace cartons defaced or scuffed in transit. 

In addition to restricting access to packaging materials, Compaq agreed to pay $6,000 to 
Massachusetts, and each of the other states involved, to cover the costs of investigation. 

In the Matter of America Online 

In December 1996, CPAD joined with 19 other Attorney Generals to reach an agreement 
with America Online ("AOL") regarding the implementation of its $19.95 per month flat-rate plan. 
The agreement secured automatic refunds for AOL members who did not want the company's 
more expensive flat-rate plan and was precipitated by AOL's announcement that it planned to 
automatically convert all of its members to the new plan unless they specifically objected prior to 
their December 1 996 billing date. 

The agreement provided that AOL must obtain affirmative consent to the billing change 
from as many of its members as possible; must automatically provide retroactive refunds to all 
consumers who asked to switch back to their old plan prior to March 31, 1997 and requires AOL 
to notify its members of their rights and obligations in light of their automatic conversion plan 
through the U.S. mail and in a series of on-line screens. 

In the Matter of America Online II 

In February 1997, CPAD and attorneys general in 44 other states filed assurances of 
discontinuance to address complaints about accessibility of service after AOL began offering its 
members $19.95-a-month plan for "unlimited access" to the service. Consumer found it difficult 
to get connected to the service since the institution of the unlimited access plan. 

The agreement provides for refunds to consumers who filed complaints with America 
Online or their Attorney General's Office within 120 days of the agreement's signing. The size of 
the refrmd varied, depending on consumers plan and the access the consumer had to the plan. 

In the Matter of AST Research Inc. 

In March 1997, Massachusetts and 20 other states filed assurance of discontinuance 
against AST Research Inc., enjoined them from selling equipment as new if it has been operated 



148 



and returned to the company. Under the agreement, which stems from an investigation into 
marketing practices throughout the computer industry, AST Research, Inc. will be allowed to sell 
returned computers as new only if they come back to the company in unopened, factory-sealed 
containers and show no signs of use. If the company offers a used computer for sale, it must 
"clearly and conspicuously" disclose the fact that it is used on the container. 

In addition to modifying its sales practices, AST was also required to pay $90,000 to 
cover investigative costs, $10,000 of which was paid to Massachusetts. 

FINANCIAL 
Comm. V. Rhodes Financial/Randolph L. White 

In October 1996, the Suffolk Superior Court ordered Randolph L. White, II (also known 
as Lee White), a former mortgage broker, to pay the Commonwealth nearly half a million dollars 
in restitution and civil penalties under the Massachusetts Consumer Protection Act. Following 
nine days of trial in 1994 and 1995, Superior Court Judge John Cratsley entered 78 pages of 
factual findings and legal conclusions, including a judgment against Mr. White for $382,000 in 
restitution for consumers and $100,000 in civil penalties. The Court also prohibited Mr. White 
from acting as a mortgage lender or a mortgage broker until at least 2006. 

In 1991, CPAD sued Mr. White, the Money Tree, Inc. (a mortgage brokerage firm owned 
and operated by Mr. White), and Rhodes Financial Services, Inc. (a related mortgage lending firm 
that shared space and customers with the Money Tree) for various violations of the Massachusetts 
Consumer Protection Act, most of which involved mortgage loans to low to moderate income 
homeowners. Before trial against Mr. White began in October 1994, both the Money Tree and 
Rhodes Financial had filed for relief in bankruptcy court. Mr. White also filed a bankruptcy 
petition which was later dismissed by the bankruptcy court for failure to obey an order of the 
Bankruptcy Court. 

Comm V. United Companies Lending Corporation 

In December 1996, CPAD filed a complaint in Suffolk Superior Court against United 
Companies Lending Corporation ("UCLC") alleging that UCLC charged more than $13,000 as a 
mortgage broker fee to a Dorchester, Massachusetts woman who borrowed $134,700 from United 
Companies Lending Corporation to refinance an existing mortgage and to pay for home 
improvements to her 3-family house in Dorchester. It is unlawfiil in Massachusetts to be both a 
broker and a lender in the same transaction. The borrower also paid more than $4,000 as a broker 
fee to a different broker called United Capital Systems, an entity with which the borrower may 
have had no direct dealings. 

United Companies Lending Corporation claimed that its $13,000 mortgage brokerage fee 
was in fact an origination fee, or "points," an error it attributes to its closing attorney in Rhode 
Island. Under that scenario. United Companies Lending Corporation had charged the consimier 
ten points, an assessment the complaint alleged is unlawful because it exceeds industry-wide 
standards or is otherwise unconscionable. The Complaint also alleges that United Companies 
Lending Corporafion may have charged similar "points" to as many as 300 consumers in 
Massachusetts. 



149 



In January 1997, CPAD obtained a preliminary injunction from the Suffolk Superior 
Court ordering United Companies Lending Corporation to comply with Massachusetts law, 
including the mortgage points statute and the Attorney General's mortgage regulations, during the 
pendency of litigation. In addition, UCLC was required to give 30 days' advance notice to the 
Attorney General of all mortgage foreclosures. 

0% Financing Advertisement Cases 

In the Matter of Tandy 

In the Matter of CompUSA 

In the Matter of Montgomery Ward 

In the Matter of Best Buy 

In September 1996, CPAD and 24 other states reached agreements with Tandy (which 
includes Radio Shack, Computer City, McDuff and Incredible Universe) CompUSA, Montgomery 
Ward and Best Buy, all of which offered "Zero Percent Financing" programs that may have been 
misleading to consumers. The states alleged that the companies did not always give consumers 
clear disclosure of all the important terms of the zero interest programs. 

As part of the agreement the companies are required to provide clearer explanations of 
their zero interest programs in their advertisements, prominently including information about 
whether the full purchase price must be paid during within the zero interest period and that if the 
consumer fails to make any required payments when due or fails to pay the purchase price in full 
by the end of the zero interest period they may be liable for all interest accruing during the zero 
interest period. In addition, the companies were required to pay $925,000 to the states, with 
Massachusetts receiving $50,000. 

In the Matter of Circuit City 

In January 1997, CPAD along with 19 other states and the District of Columbia reached 
agreements with Circuit City which offered "Zero Percent Financing" programs that may have 
been misleading to consumers. The states alleged that the companies did not always give 
consumers clear disclosure of all the important terms of the zero interest programs. 

As part of the agreement Circuit City was required to provide clearer explanations of their 
zero interest programs in their advertisements, prominently including information about whether 
the full purchase price must be paid during within the zero interest period and that if the consumer 
fails to make any required payments when due or fails to pay the purchase price in full by the end 
of the zero interest period they may be liable for all interest accruing during the zero interest 
period. In addition, Circuit City was required to pay $225,000 to the states, with Massachusetts 
receiving $25,000. 

Comm. V. Felix Rodriguez d/b/a Fargo^s Express 

In January 1997, CPAD entered a consent judgment against Felix Rodriguez d/b/a 
Fargo's Express enjoining Rodriguez from operating an unlicensed check cashing operation and 
requiring the payment of a $1,250 civil penalty. 



150 



CPAD alleged that Rodriguez violated the Massachusetts Consumer Protection Act by 
cashing checks for a fee greater than one dollar without possessing a valid license from the 
Commissioner of Banks. 

In the Matter of Ronald Brown d/b/a International Investment Group. Ltd. 

In March 1997, CPAD filed an assurance of discontinuance against Ronald Brown d/b/a 
International Investment Group, Ltd. CPAD alleged that Brown offered "self-liquidated" loans of 
hundreds of thousands of dollars by fee from "off-shore banks", contingent upon the consumer 
sending in a fee ranging from $35 to $1 50. Brown allegedly had no affiliation with any financial 
institutions and could not aid consumers in obtaining loans. 

The assurance bars Brown from soliciting money from Massachusetts constuners or using 
a Massachusetts address for his business. Brown must also pay up to $2,000 in restitution to 
consumers who were allegedly affected by the scam. 

Comm. V. DTM Financial Services, et al. 

In March 1997, CPAD obtained a default judgment against DTM Financial Services, 
enjoining deceptive marketing of credit repair services and ordering payment of a $100,000 civil 
penalty. CPAD previously filed a complaint against DTM Financial Services, a credit repair 
services company, for allegedly misrepresenting the effectiveness of its "credit repair kits" to 
remove all negative items from consumer credit reports. This action was filed as part of joint 
effort with the FTC called "Operation Payback." A temporary restraining order and preliminary 
injunction were obtained prohibiting DTM, its affiliates and owners/operators from accepting 
payment until full and complete satisfactory performance of credit repair services is provided to 
consumers. This case was one of several to be brought nationwide to enforce the FTC's new 
Telemarketing Sales Rule. 

Comm. V. The Calling Center Services. Inc. 

In May 1997, CPAD entered a consent judgment against The Calling Center Services, 
Inc. enjoining The Calling Center from operating an unlicensed check cashing operation and 
requiring the payment of a $2,500 civil penalty. 

CPAD alleged that The Calling Center violated the Massachusetts Consumer Protection 
Act by cashing checks for a fee greater than one dollar without possessing a valid license from the 
Commissioner of Banks. 

GENERAL 

Comm. v. Direct Marketing Enterprises 

In July 1996, CPAD filed suit in Suffolk Superior Court against a New York-based 
sweepstakes operations, their affiliated companies, and their owners/operators for allegedly 
misleading thousands of Massachusetts consumers into believing they had won cash prizes and 
inducing such consumers into buying millions of dollars in products for the chance of winning 
such prizes. 



151 



The complaint was filed against Raffoler Ltd. and Direct Marketing Enterprises Ltd., both 
doing business out of Westbury, New York as CVP Sweepstakes; and their owners/operators Jerry 
Williams and Stephen Brown for allegedly sending misleading and deceptive sweepstakes award 
solicitations to Massachusetts consumers. 

Raffoler Ltd. and Direct Marketing Enterprises Ltd. (also using the name "CVP 
Sweepstakes"), allegedly mail more than three million sweepstakes solicitations to Massachusetts 
consumers every year that create the impression that the recipient must purchase a product to win a 
prize and that a recipient has a better chance of winning a major prize or other sweepstakes award 
than is actually the case. It was further alleged that the solicitations make it more difficult for non- 
purchasing participants to enter the sweepstakes promotion than for purchasing participants, in 
violation of Massachusetts law. 

Comm. V. Federal Record Service 

In August 1996, CPAD obtained a consent judgment resolving the suit brought in May 
against Federal Record Service Corporation, a New York company that is in the business of 
sending mass mailings offering certain services relating to social security numbers. Federal 
Record Service had allegedly been sending out two types of mailings to consumers in 
Massachusetts and elsewhere. The first, sent to persons who just had a child, warns that a social 
security number must be obtained by the child's first birthday, and offers to complete the 
paperwork necessary to apply for a number, for a $1 5 fee. The second mailing, sent to persons 
about to be married, offers, again for a $15 fee, to complete the paperwork necessary to make 
official name changes on Social Security Administration records. 

CPAD alleged that these solicitations were deceptive, and violated the Massachusetts 
Consumer Protection Act, because they failed to disclose that social security numbers are often 
assigned to newborn children automatically as part of the birth registration process, and because 
they fail to disclose that name changes and new social security numbers can be obtained for free 
directly from the Social Security Administration, without paying a $15 fee to Federal Record 
Service. 

The consent judgment requires Federal Record Service to advise consumers that they can 
deal directly with the Social Security Administration, or pay a $15 fee to Federal Record Service, 
in order to obtain the social security numbers. It also requires the company to advise consumers, 
in the mailing sent to new parents, that their child may already have been registered with the Social 
Security Administration, if they authorized the hospital to release the birth records. The judgment 
requires Federal Record Service to continue to disclose that it is a private company not affiliated 
with any government agency and requires the company to provide restitution to consumers. 

Comm. V. Direct Link 

In August 1996, CPAD obtained a consent judgment in Suffolk Superior Court with 
Direct Link, Inc., a Framingham company and Suzanne Bannister, requiring them to stop placing 
allegedly misleading and deceptive "help wanted" advertisements for the purpose of offering their 
employment information service to the public. 



152 



Direct Link and Bannister allegedly placed "help wanted" style advertisements in local 
newspapers that tended to describe a job opportunity in such a manner that consumers were misled 
as to the characteristics, salary and/or qualifications needed for the advertised position. The 
advertisements implied that prospective job applicants could begin working that day, and that 
positions were available that would pay good hourly wages, with little or no experience when in 
fact, many of the employment opportunities required training or prior work experience in order to 
earn the advertised salaries. 

Consumers who responded to the advertisements discovered that they would be required 
to enter into a three month subscription agreement to defendants' service and to pay a subscription 
fee of $159.00 before being given information about the advertised opportunities. 

The judgment prohibits Direct Link and Bannister from engaging in misleading 
advertising practices and from making material misrepresentations about the employment 
information services they offer. The consent judgment also requires that Direct Link resolve all 
outstanding consumer complaints and pay $15,000 in civil penalties and costs to the 
Commonwealth. 

Comm. V. John Corcoran, d/b/a Tempest Corporation 

In September 1996, CPAD obtained a consent judgment against John Corcoran d^/a 
Tempest Corporation. CPAD alleged that Corcoran operated an illegal pyramid scheme that he 
marketed as a "profit sharing plan." The pyramid scheme provided that in exchange for a fee, a 
consumer was entitled to receive a variety of stationery to use to recruit new consumers. Each 
consumer received a monthly amount for every other person they recruited into the program. 

Pursuant to the consent judgment, Corcoran is enjoined from operating a pyramid scheme 
and was required to pay a $2,000 civil penalty. 



Comm. V. J.J. O'Brien Movers 

In September 1996, CPAD filed a complaint and obtained a temporary restraining order 
in Suffolk Superior Court against Gary DeCicco and J.J. O 'Brien Movers, Inc., a Lynn storage 
company that was operating a public warehouse without a license. 

The temporary restraining order prevents DeCicco and J.J. O'Brien Movers, Inc., from 
operating a warehouse at 35 - 41 Wyman Street, Lynn, Massachusetts. The order prevents the 
defendants from removing consumers' personal property from the warehouse, accepting new 
property for storage, and selling any property that had been stored there. In addition, the order 
required the defendants to identify to the Attorney General's Office the persons or entities whose 
property is currently stored at the warehouse. 



Comm. V. Thomas F. Spencer. Jr. 



153 



In November 1996, CPAD obtained a consent judgment against Thomas Spencer, Jr., a 
disbarred attorney, enjoining Spencer from participating in the real estate closing and financing 
business. 

Spencer allegedly performed closings for residential refinances, failed to turn new loan 
proceeds over to original mortgage holders, and failed to discharge the original mortgages. The 
result was that consumers had 2 mortgages on their property, and in some cases had suffered other 
monetary losses. The title insurance company paid off all first mortgages, and compensated some 
consumers for other costs to the extent such costs affected the title to the property. Some 
consumers were left with losses not covered by the title insurance company. 

In addition to the injunctive provisions, Spencer was required to pay $1,500 in restitution 
to consumers. 

Comm. V. Clearinghouse Publications 

In November 1996, CPAD filed an action in Suffolk Superior Court against Daniel Buck 
and National Marketing Enterprises, individually and doing business as Clearinghouse 
Publications, for allegedly swindling consumers out of thousands of dollars by convincing them to 
pay fees for nonexistent "work-at-home" job opportunities. Clearinghouse allegedly placed 
advertisements in a variety of local newspapers promising consumers that they could earn 
hundreds of dollars by working at home. When consumers responded to these ads. Clearinghouse 
would solicit them to pay a fee for "kits", books or other materials. In many cases. Clearinghouse 
failed to send consumers anything in return for their payments. In other cases. Clearinghouse 
would string consumers along by making ftirther promises of at-home employment, then soliciting 
additional fees. 

In December 1996, CPAD obtained a preliminary injunction against Clearinghouse and 
Buck prohibiting them from advertising, soliciting payments for, or accepting payments for home 
employment "opportunities." It also forbids Buck and Clearinghouse Publications from placing 
deceptive advertisements, making misrepresentations about nonexistent home employment 
"opportunities," and failing to disclose fees charged for these "opportunities." 

Comm. V. Donald and Judith Berman d/b/a Dana Ross Studios 

In November 1996, CPAD obtained a consent judgment against Donald and Judith 
Berman, owners of Dana Ross Studios, a Boston identification card maker. The consent judgment 
bars the defendants from selling false identification cards to youths under the legal drinking age of 
twenty-one. The Bermans are also required to pay a civil penalty of $3,000. 

The agreement followed an investigation by the Attorney General's Office and Boston 
Police into the sale by Dana Ross Studios of false identification cards to youths seeking to 
purchase alcohol illegally. The identification cards allegedly resembled official identification 
cards and driver's licenses from virtually every state. 

Comm. V. The Sportsman^s Guide. Inc. 

In December 1996, CPAD obtained a consent judgment against The Sportsman's Guide, 
Inc., a Minnesota-based business that orders the company to take precautions in the sale of air 



154 



rifles, BB guns, firearms and ammunition to minors in Massachusetts. CPAD alleged that The 
Sportsman's Guide, Inc. sold BB guns and air pistols to minors without making any attempts to 
determine the age of the minors. 

The consent judgment requires that sales agents of The Sportsman's Guide, Inc. (a) be 
provided with a driver's license number (or other government issued identification number), (b) be 
provided with the residential address identified on the driver's license, (c) that no delivery be made 
to an address other than on the driver's license, and (d) that no age-restricted product may be 
delivered to anyone in Massachusetts without the delivery agent first obtaining an adult signature 
indicating acceptance of the age-restricted product. In addition, the judgment orders the company 
to pay the sum of $5,000 as civil penalties to the Commonwealth and to make a settlement offer to 
a minor consumer who was harmed by the company's business practices. 

Comm. V. Wilbur Brown d/b/a Am-Tech Communications. Inc. and National 
Communications Group 

In December 1996, CPAD filed a complaint against Wilbur Brown d/b/a Am-Tech 
Communications, Inc. and National Communications Group. CPAD alleged that the defendants 
placed newspaper advertisements offering a "no money down" pay telephone business opportimity, 
made material misrepresentations and omissions to callers who responded to the advertisement, 
and accepted payments fi-om consumers across the country for goods and for services in 
connection with the alleged business opportunity without providing the promised goods or making 
refunds to consumers. 

Upon filing the complaint, CPAD obtained a temporary restraining order which 
prohibited the defendant fi-om engaging in unfair or deceptive acts or practices in cormection with 
the advertisement, sale, and provision of any pay telephone or other business opportunity scheme. 
After nofice and hearing, the court issued a preliminary injunction enjoining the defendant fi-om 
continuing to operate the pay-telephone business opportimity scheme. 



Comm. V. Carl F. Simmons, et al. . 

In December 1996, CPAD obtained a final judgment against Carl Simmons, an owner- 
operator of a vocational school that allegedly had been operated in such a knowingly financially 
irresponsible manner as to resuh in the school's closure by the United States Department of 
Education. Consumers remained responsible to lenders for their tuition notwithstanding the 
school's closure. The final judgment bars Simmons from operating a school in Massachusetts and 
required Simmons to pay $25,000 in civil penalties. 

Sports Memorabilia Cases 

In December 1996, CPAD aimounced that a sting operafion uncovered dozens of 
apparently fake Drew Bledsoe autographs on photographs, miniature football helmets and 
regulation size football helmets. As part of the sting, CPAD sued Robert Mattson of Coventry, 
Rhode Island, who does business as Center Ice Promotions, for distributing allegedly forged 
Bledsoe autographs. The complaint seeks to enjoin Mattson from selling these items and seeks the 
imposition of civil penalties of up to $5,000 for each violation of the law. 



155 



Consent judgments were also filed against two Boston area retailers ~ Boston Baseball 
Cards, Inc. of Watertown and Andrew McCrea of North Reading who does business as The Inside 
Pitch - for isolated incidents of selling unauthentic sports memorabilia. Both companies quickly 
resolved the matter by agreeing to pay a civil penalty of $1,250 each. The sting operation was 
conducted with the cooperation of the New England Patriots, Drew Bledsoe and Raymond 
Bourque. 

Comm. V. AmCan Enterprises. Inc. et al. 

In January 1 997, the Suffolk Superior Court entered an order requiring AmCan 
Enterprises, Inc. which does business as North American Directories and its ovmer/operator, 
Charles King to pay $1,000,000 in civil penalties, $147,000 in consumer restitution and $26,415 in 
costs for violations of the Massachusetts Consumer Protection Act. 

The judgment follows a March 1996 decision that the defendants' solicitation packages 
were illegally deceptive. The decision found that consumers were likely to be misled into 
reasonably believing that the solicitations had been sent by the publishers of the local yellow pages 
directories, such as NYNEX, and that they were renewing existing listings by responding 
favorably to the solicitations. The defendants admitted that they had sent more than 2.3 million of 
these solicitations to Massachusetts businesses between 1990 and 1994. 

Comm. V. Sportsworid. Inc. 

In February 1997, CPAD obtained a consent judgment against an Everett sports 
memorabilia dealer that allegedly sold bricks that the dealer claimed were from the Boston 
Garden, when the bricks were actually either unauthorized for sale by the Boston Garden, or were 
not from the Garden. Under the terms of the consent judgment, Sportsworld is harmed from 
selling sports memorabilia that is either not authorized for sale by its true owners, or is 
unauthentic. Sportsworld must also attempt to repurchase all bricks sold to consumers, and must 
pay a $500 civil penalty to the Commonwealth. In addition, Sportsworld has agreed to provide a 
charitable donation of $750 in sports memorabilia to the Jimmy Fund. 

Comm. V. National Citizenship and Immigration Services 

In February 1997, CPAD obtained a consent judgment against National Citizenship and 
Immigration Services and its owner Robert Pore. CPAD alleged that Pore and NCIS had charged 
immigrants between $200 and $250 to provide citizenship tests, and then failed to provide the 
complete and official tests. Some immigrants were also promised classes, which they never 
received. Consumers who took the incorrect and incomplete "tests" received notices that they had 
failed or have not received test results as promised. 

The consent judgment prohibits Pore from operating NCIS or any other business in 
Massachusetts involving citizen testing or immigration matters. The judgment also requires Pore 
to return payments to injured consumers, beginning with an initial sum of $15,000 in restitution. 

Comm. V. Russ Movers, et al. 



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In March 1997, CPAD filed a consent judgment with Russ Movers, a Maiden-based 
moving company and its principals to resolve allegations that the defendants improperly moved 
and stored consumers' property and were operating without the requisite licenses and certificates. 

Pursuant to the consent judgment defendants are required to maintain a bond and/or 
insurance policy to cover any future losses to consumers and are required to pay $25,000 in 
restitution to consumers. The consent judgment also requires the defendants to submit to periodic 
inspections of the warehouse to ensure that it is being operated correctly. 

Comm. V. First Network. Inc. and Randv L. Domings 

In April 1997, CPAD filed a complaint in Middlesex Superior Court against First 
Network, Inc. and its principal. Randy L. Domings. CPAD alleged that Domings and First 
Network, Inc. placed misleading and deceptive "help wanted" ads in local newspapers, for taking 
up-front fees for job referrals and other services which the company failed to provide, and for 
verbally abusing and threatening consumers who complained or demanded refunds. 

Consumers who responded to the ads were allegedly assured that positions were available 
and that details and referrals would be provided upon payment of a $1 10 subscription fee. After 
paying the fee, consumers discovered that First Network did not have the advertised jobs or 
services and refused to refund their money. 

In May 1 997, CPAD obtained a preliminary injunction prohibiting the defendants from 
engaging in the actions alleged above. 

Comm. V. Bearak Reports. Inc. 

In April 1997, CPAD filed suit to stop Bearak Reports, Inc., a Framingham company, 
from obtaining private bank account information of individuals and businesses, and selling that 
information to others, without the consent or knowledge of the account holder. 

Bearak Reports charged its clients, such as law firms or estranged spouses, as much as 
$1,795 for "asset searches" of targets in lawsuits or divorce proceedings. Allegedly, Bearak 
Reports then obtained bank account information, including specific balances, through the use of 
deception and ruses, such as impersonating a bank account holder in an attempt to trick the bank 
into releasing such information. 

In the Matter of Environmental Compliance Testing. Inc. 

In May 1997, CPAD filed an assurance of discontinuance against Environmental 
Compliance Testing, Inc., stemming from a bulk mailing by ECT of a postcard-sized solicitation, 
offering to send a technician to test the "Indoor Air Quality" of the recipient's work environment. 
The solicitation contained the statement: "You must test the Indoor Air Quality at your business," 
and cited an "OSHA STANDARD ON INDOOR AIR QUALITY" which, in reality, is merely a 
proposed standard. As such, the proposed standard is not legally enforceable and creates no duty 
to test. 



157 



The assurance enjoins ECT from invoking non-existent state or federal statutes or 
regulations in an effort to cultivate business. ECT was also required to pay $1 ,500 in costs to the 
Commonwealth. 

Comm. V. Forbes Real Estate et al. 

In May 1997, CPAD filed an assurance of discontinuance with Forbes Real Estate 
Company, a Boston-based real estate company owned an operated by Richard M. Kelleher. CPAD 
alleged that Kelleher improperly used fuel escalation and rug shampooing clauses in leases with 
tenants in violation of the Massachusetts Consumer Protection Act. 

Under the terms of the assurance, Kelleher will not to charge his tenants for additional 
fuel costs unless each unit is individual metered and will not charge previous tenants for the costs 
of shampooing carpets which have not been damaged beyond reasonable wear and tear. 
Additionally, Kelleher is required to pay restitution to affected tenants and $1 ,500 to the 
Commonwealth. 

Comm. V. U-Haul 

In May 1997, CPAD filed a complaint charging that a broad array of the business 
practices of U-Haul-a truck, trailer, and storage locker rental business- violated the 
Massachusetts Consumer Protection Act. CPAD alleged that U-Haul International, Inc. and its 
affiliates operating in Massachusetts advertised and collected deposits for "guaranteed 
reservations", but on numerous occasions failed to have the reserved equipment available for the 
consumer; provided defective or substandard equipment to consumers; charged consumers 
unconscionable "late fees" for storage locker rental if payment were one day late- amounting in 
some cases to up to 100% of the amount due; with insufficient notice, sold consumers' property in 
storage when consumers failed to make payment; made false representations about the security of 
its storage facility in Medford. 

Comm. V. Certified Business Supply. Inc.. d/b/a Purity Medical Products 

In Jime 1997, CPAD obtained a consent judgment against Certified Business Supply, a 
California telemarketing company, which had also been doing business in Massachusetts using the 
name "Purity Medical Products", ordering the company to cease using misleading sales scripts. 

CPAD alleged that the company used sales scripts which it tailored to create false 
impressions in the minds of its customers' employees. Other scripts gave the impression that 
Certified was the office's regular supplier. Certified' s sales agents would also pressure employees 
to purchase products by implying that there was a shortage. 

In addition to deceptive sales scripts, Certified sent unsolicited products to some 
institutions or businesses hoping that an imsuspecting employee would pay the accompanying bill. 

The judgment orders Certified to stop using its misleading sales scripts and to actively 
disclose during telephone solicitations that it is not a regular supplier and that the customer has not 
already purchased the product. It also forbids Certified from billing customers for unsolicited 
products and requires Certified to pay a $5,000 civil penalty. 



158 



HEALTH AND MEDICAL ISSUES 

Comm. V. Telebrands Corporation and Ajit Khubani 

In July 1996, CPAD and 16 other states reached a settlement with a New Jersey-based 
company and its president for allegedly using deceptive advertising practices in selling a hearing 
aid device known as the "Whisper XL". The Whisper XL had not been approved by the FDA as a 
hearing aid prior to its being sold to in the Commonwealth and advertisements claimed a wearer 
would be able to "hear a whisper up to 100 feet away." 

The consent judgment prohibits Telebrands and Khubani from selling any hearing aid 
without first obtaining the required FDA approval and from making any claim in any advertising 
of any hearing aid wdthout the appropriate FDA approval. Further, the company is prohibited from 
making any claims in an advertisement for the Whisper XL or any hearing aid which is false, 
misleading or deceptive. Telebrands and Khubani were also required pay refunds to consumers 
who purchased the device and pay $33,462 to Massachusetts. 

In the Matter of McNeil PPC. et al. 

In October 1996, CPAD and 18 other states filed assurances of discontinuance with 
McNeil Consumer Products Company, a major pharmaceutical company, and the Arthritis 
Foundation over the marketing of four over-the-counter pain relievers sold imder the name 
"Arthritis Foundation Pain Relievers." 

McNeil and the Arthritis Foundation had advertised The Arthritis Foundation Pain 
Relievers nationally in TV ads, radio, direct mail and in-store promotional materials. These 
advertisements claimed that the pain relievers were especially formulated, "new," and 
"doctor-recommended," that the Arthritis Foundation had helped to create the medications, and 
that a portion of the sales price went to fiind arthritis research. The states believed that these 
claims were misleading because the active ingredients in the pain relievers were merely ordinary 
aspirin, acetaminophen and ipubrofen. 

The assurance prohibits McNeil and the Arthritis Foundation from advertising that the 
products are new, representing that the products are "especially formulated" or contain a different 
formula than other over-the-counter pain relievers if the active ingredients are the same as those 
found in other OTC medications already on the market, and representing that their product brand is 
recommended by doctors, unless it is. In addition, McNeil paid $1,960,000 ~ $250,000 to an 
agency of the National Institutes of Health for arthritis research and $1,710,000 ($90,000 each) to 
the participating states for consumer education, attorney's fees, or costs. 

Comm. V. Kristen Beth Nursing Home. Inc. and Philip McCourt. Jr. 

In February 1997, CPAD entered into a consent judgment in Suffolk Superior Court with 
Kristen Beth Nursing Home, Inc. and its president, Philip McCourt, Jr. to resolve allegations of 
serious patient care deficiencies at the nursing home. To address this danger to the residents, the 
court had previously allowed the Commonwealth's petition for the establishment of a receivership 
and appointed receivers to correct the patient care and physical plant deficiencies, requalify the 



159 



facility to receive Medicaid funding, care for the patients and locate a qualified purchaser to run 
the facility at the close of the receivership. The responsibility for operating the nursing home was 
transferred to a DPH approved bidder in 1992. 

The consent judgment bars the defendants from becoming health care service providers 
or having any interest in a health care service or facility in Massachusetts for a period of 20 years. 
Pursuant to a prior court approved plan, the Commonwealth received $200,450 in restitution and 
attorneys fees. 

Comm. V. Edgewood Nursing Home. Inc. and Philip McCourt. Jr. 

In February 1997, CPAD entered into a consent judgment in Suffolk Superior Court with 
Edgewood Nursing Home, Inc. and its president, Philip McCourt, Jr. to resolve allegations of 
serious patient care deficiencies at the nursing home. To address this danger to the residents, the 
court had previously allowed the Commonwealth's petition for the establishment of a receivership 
and appointed receivers to correct the patient care and physical plant deficiencies, requalify the 
facility to receive Medicaid funding, care for the patients and locate a qualified purchaser to run 
the facility at the close of the receivership. The responsibility for operating the nursing home was 
transferred to a DPH approved bidder in 1990. 

The consent judgment bars the defendants from becoming health care service providers 
or having any interest in a health care service or facility in Massachusetts for a period of 20 years. 
Pursuant to a prior court approved plan, the Commonwealth received $198,470 in restitution and 
attorneys fees. 



HOUSING AND HOME IMPROVEMENT 

Commonwealth v. Timothy Rich d/b/a Air Temp Engineering 

In July 1996, CPAD obtained a default judgment permanently enjoining Timothy Rich 
d/b/a Air Temp Engineering, a chimney repair contractor, from engaging in deceptive practices 
and ordered payment of a $70,000 civil penalty. 

CPAD alleged that Rich failed to obtain licenses and permits required for installation and 
removal of home heating, cooling and ventilation systems. A temporary restraining order and a 
preliminary injunction were obtained prohibiting the defendant and his employees from engaging 
in home improvement work without first obtaining 
appropriate plumbing, heating and other permits. 

Comm. V. American Lead Abatement. Inc.. et al. 

In October 1996, CPAD entered into a consent judgment with American Lead Abatement, 
Inc., a deleading contractor; Douglas L. Williams, Sr., who was in charge of lead abatement for the 
company; and James C. Judge, a lead inspector. 



160 



CPAD alleged that consumers that contracted with American Lead Abatement to do 
abatement work also agreed to pay for hazardous lead waste disposal under their contracts. At the 
end of each job, Williams allegedly requested exorbitant fees for hazardous lead waste disposal, in 
one case 22 times the amount estimated in the contract. When consumers refused to pay, Williams 
allegedly returned 55-gallon drums filled with hazardous lead waste back to consumers. Judge did 
the initial lead paint inspection of the property and issued letters of lead abatement compliance for 
the property. Subsequent inspections allegedly revealed that Judge had missed a number of 
surfaces that required lead abatement during the initial inspection and had improperly certified the 
house. 

The consent judgment permanently enjoins the defendants from operating in the lead 
paint removal business, requires them to participate in 30 hours of community service and required 
the payment of a $1,000 civil penalty. 

Comm. V. Billings. Oullette d/b/a Allvac Chimney Service, Billings Construction 

In December 1996, CPAD obtained a consent judgment against Donald Billings and 
Normand Oullette, home improvement contractors who do work under the business names "Allvac 
Chimney Service" and "Billings Construction." 

CPAD alleged that the Billings and Oullette approached an 86-year old woman, and 
offered her their services as chirrmey sweepers. After performing that work and gaining her 
confidence, they allegedly caused her to sign additional contracts for home improvement work, as 
to all of which she was materially overcharged. The consumer paid the defendants over $43,000 
for home improvement work. 

The judgment permanently bars Billings and Oullette from engaging in the residential 
contracting business and the plumbing and/or gas fitting business in Massachusetts. In addition, 
the judgment orders the defendants to pay $20,000 in restitution. 

Comm. V. Federal National Mortg a ge Association 

In April 1997, CPAD obtained a consent judgment requiring the Federal National 
Mortgage Association (Fannie Mae) to sell a foreclosed upon home to a Mattapan community 
group for the benefit of its disabled occupant. 

CPAD alleged that the 60-year old former school teacher was going to be evicted on the 
day the initial complaint was filed. She had, through the Community Homeowner's Association, 
been negotiating with Fannie Mae to repurchase her property which had been taken by Fannie Mae 
at a foreclosure sale in 1993. According to the complaint, Fannie Mae had not been negotiating 
with the Association in good faith with the known result that Ms. Turner would be evicted. 

TOBACCO 

Comm. of Massachusetts v. Philip Morris. Inc.. R.J. Reynolds Tobacco Company. Brown & 
Williamson Tobacco Corporation. B.A.T. Industries P.L.C.. Lorillard Tobacco Company. 



161 



Li ggett Group. Inc.. New England Wholesale Tobacco Co.. Inc.. Albert H. Notini & Sons. 
Inc.. The Council for Tobacco Research -U.S.A.. Inc.. and The Tobacco Institute. Inc. 

In the last year, attorneys from CPAD and the Government Bureau have responded to 
several lengthy motions to dismiss the case filed by the cigarette industry defendants. In October 
1996, the defendants filed a 53-page motion to dismiss each of the substantive claims in the 
Commonwealth's complaint and certain other defendants filed a motion to dismiss for improper 
joinder. In November 1996, B.A.T. pic also filed a motion to dismiss for lack of personal 
jurisdiction. The defendants also filed a motion to dismiss for failure to join indispensable parties. 

Working with Special Assistant Attorneys General, the tobacco litigation team responded 
to each of these motions in May 1997. The court has not set a date for oral argument. 

Li ggett Settlement 
In March 1997, Attorney General Scott Harshbarger signed an historic agreement with 
Liggett Group, Inc. For the first time in history a major tobacco company agreed to actively assist 
Massachusetts in its lawsuit against the tobacco industry and radically change its business 
practices. 

Liggett agreed to place prominent warnings on all of its products and in its advertising 
stating that smoking is addictive. In addition to the warning labels, Liggett will disclose internal 
research on tobacco products and cease marketing to children. State attorneys general will be 
provided with all relevant documents in its possession regarding tobacco industry conduct, and 
Liggett will make available to prosecutors current and former employees for witness interviews, 
depositions and trial testimony. 

This agreement comes exactly one year after a settlement between Liggett and five other 
states, including Massachusetts. In the original agreement, Liggett agreed to stop marketing its 
product to minors, withdraw its opposition to proposed federal rules regarding tobacco advertising 
and provide fimding to states to help pay for health care costs incurred treating tobacco related 
illnesses. 

In compensation for past, present and fiiture costs incurred in treating indigent citizens of 
Massachusetts for smoking related illnesses, Liggett agreed to pay the five initial states that had 
settled one year ago a total of one million dollars immediately. The company will pay a total of 
four million dollars in equal annual installments over the next nine years and either 2.5 percent of 
their pretax profits or 30 million dollars, whichever is greater, over the next 25 years. 

Agreement in Principle in Proposed Settlement of State Tobacco Suits 
In June 1997, after three months of negotiation. Attorney General Scott Harshbarger 
announced that an agreement in principle had been reached with the tobacco industry. This 
agreement in principle was designed to protect generations of children, improve the public health 
and reclaim billions of taxpayer dollars. 

Among many other things, the agreement in principle includes: 



162 



-Industry payment of 368.5 billion in the first 25 years of the agreement for health care 

costs and federal, state and local enforcement of the agreement and youth access laws; 

-Full federal authority to regulate nicotine as a drug; 

-A 500 million dollar per year counter-advertising campaign, modeled after the one in 

Massachusetts to be paid for by the tobacco industry; 

-A national youth smoking reduction goal to cut youth smoking in half with seven years 

with an $80 million dollar penalty for every percentage point the industry falls short of 

that goal; and 

-Full industry fiinding of state and privately run smoking cessation programs. 

Congress and the White House need to approve a final agreement, and this process is 
currently underway. 

PhiHp Morris. Inc.. et al. v. Harshbarger. et al. . 
United States Tobacco Co.« et ai. v. Harshbarger. et al. . 

These cases were filed in August 1996 by manufacturers of cigarettes and smokeless 
tobacco products challenging the new Massachusetts ingredient reporting law. The manufacturers 
asserted claims imder the supremacy clause, the takings clause, the due process clause and the 
commerce clause of the United States Constitution. 

The parties cross-moved for partial summary judgment on the preemption claim. 
Those motions were argued before United States District Court Judge O'Toole in December 1996. 
The Court issued its decision in February 1997 granting the Commonwealth's motion and denying 
the manufacturers' motions. The manufacturers then moved for certification of an immediate 
appeal of the Court's judgment to the Court of Appeals for the First Circuit. The Court of Appeals 
accepted the manufacturers' appeal. The appeal was fiilly briefed and the First Circuit heard oral 
argument in June 1997. The appeal is still under advisement. District Court Judge O'Toole still 
retains jurisdiction over the manufacturers' remaining claims. 

TRAVEL 

In the Matter of Elite Enterprises. Inc. d/b/a Elite World Travel 

In August 1996, CPAD entered into an assurance of discontinuance with Elite World 
Enterprises, Inc., a Worcester ticket seller/travel agent that sold travel and ticket packages for the 
Olympic games without disclosing that it was obtaining Olympic tickets fi-om third parties, not the 
Olympic committee. 

Under the terms of the assurance Elite was required to disclose its non-agency 
relationship to the Olympic Committee; to keep all ticket funds in escrow until the end of the 
Olympic games; and to pay $1,000 in costs to the Commonwealth. 

Comm. V. Journeys on Dialysis. Inc. and George Muir d/b/a Journeys on Dialysis. 

In December 1996, CPAD obtained a consent judgment against Journeys on Dialysis, Inc. 
and its principal, George Muir, enjoining Journeys on Dialysis and Muir fi-om operating any travel 



163 



business, and ordering the payment of $90,000 in consumer restitution and $200,000 in civil 
penalties. 

The defendants allegedly lured kidney failure patients by false offers of vacation cruises 
made possible by dialysis treatments aboard ship. CPAD alleged that the defendants violated the 
Consumer Protection Act by accepting money for vacation cruises and on-board dialysis treatment 
from consumers and then failing to provide either the travel accommodations or refunds. The 
court issued a temporary restraining order and subsequently, a preliminary injunction, prohibiting 
Journeys on Dialysis and Muir from accepting fiirther payments for travel arrangement services. 

Comm V. New Horizons 

In May 1997, CPAD obtained a consent judgment against Resort Properties, Inc. and 
Great American Records, Inc. of Milford, Connecticut and their principal, Anthony Newman. 
CPAD alleged that the defendants used deceptive solicitations to lure consumers to attend sales 
presentations, engaged in high pressure sales tactics to coerce consumers to purchase travel club 
memberships, and engaged in unfair or deceptive financing and debt collection activities in 
connection with those sales. 

The suit also alleged that Great American Records, doing business as G.A.R. Financial, 
engaged in unfair debt collection activities. G.A.R. Financial, an affiliated company, financed 
many of the sales transactions. 

The consent judgment prohibits Resort Properties, Great American Records and Newman 
from engaging in misleading advertising practices and from making material misrepresentations 
about the vacation club memberships they offer. The consent judgment also requires that the 
defendants to pay more than $63,000 in restitution and $30,000 in civil penalties and costs for 
alleged unfair and deceptive business practices in connection with the marketing and sale of 
vacation club memberships. 

UNAUTHORIZED PRACTICE 

Comm. V. Carmen Abreu 

In September 1996, CPAD filed a consent judgment in Suffolk Superior Court against 
Carmen Abreu to resolve allegations that Abreu had engaged in the unauthorized practice of law. 
The consent judgment prohibits Abreu, who had previously done business as the Hampden County 
Legal Assistance Center, from engaging in the unauthorized practice of law and required the 
payment of $1,270 in restitution to affected consumers. 

Comm. V. Leon Aronson 

In December 1996, CPAD filed a consent judgment in Suffolk Superior Court against 
Leon Aronson to resolve allegations that Aronson had engaged in the unauthorized practice of law, 
holding himself out as an attorney and misrepresenting that he was able to act as an attorney, and 
failing to disclose that he had been disbarred. 



164 



The consent judgment permanently enjoins Aronson from engaging in the practice of law, 
holding himself out or otherwise acting as or representing himself to be an attorney; and 
misrepresenting in any way, orally or in writing, that he is able to act as an attorney. 

Comm. V. Fredy Pellecer 

In March 1997, CPAD obtained a default judgment against Fredy Pellecer enjoining him 
from the unauthorized practice of law, and ordering payment of $5,000 in consumer restitution and 
$2,000 in civil penalties. 

CPAD alleged that Pellecer misled immigrants seeking work permits and legal status to 
believe he was an immigration lawyer. CPAD obtained a temporary restraining order and 
preliminary injunction prohibiting the defendant from engaging in the practice of law, representing 
that he is competent or qualified to practice law and from giving legal advice on immigration 
matters. 

Comm. V. John F. Kennedy d/b/a J.F.K. TV Repair 

In June 1997, CPAD obtained a consent judgment against John F. Kermedy d/b/a J.F.K. 
TV Repair permanently enjoining Kermedy from holding himself out as a radio and television 
technician, and operating a business of radio and television repair without a license. 

CPAD alleged that Kermedy, a TV repair technician doing business in Roslindale, 
violated the Massachusetts Consumer Protection Act by engaging in the business of television and 
radio repair after his license had been revoked by the state board of registration; charging 
consiuners for repairs which had not been authorized by the customer; and reftising to return 
customers' televisions and radios. 

The consent judgment requires Kennedy to pay approximately $4,800 in restitution and 
$10,000 in civil penalties. Also, should Kennedy's television and radio repair license be 
reinstated, he is also enjoined from charging for repairs which are not authorized by the customers 
and refiasing to return deposits even after work was never performed or after consumers demand 
back their televisions and/or radios. 

OTHER INITIATIVES 

Mobile Home Regulations 

In August 1996, the Office promulgated final regulations governing manufactured 
housing communities in the Commonwealth. The regulations address consumer protection issues 
involving terms and conditions of occupancy, the promulgation of community rules by 
manufactured housing community owners, the provision of goods and services within 
manufactured housing conmiunities, the purchase and sale of manufactured homes within these 
communities, the termination of tenancies and eviction, the sale or lease of entire manufactured 
housing communities by the owners of those communities, and other related issues. 



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If owners of manufactured housing communities violate the regulations, they can be 
subject to penalties of up to $5,000 per violation, and can be sued by the State or by private 
citizens under the state Consumer Protection Act. 

Multistate Cigarette Sting 

In October 1996, the Attorneys General of Massachusetts, Minnesota, New Mexico, New 
York and Vermont simultaneously released the results of sting operations in their respective states 
that show that children continue to have widespread access to cigarettes despite increased focus on 
the problem nationally. In the sting operations, minors attempted a total of 1405 purchases in the 
six states and were successful 463 times, a 33% success rate. The sale of cigarettes to minors is 
illegal in each of the states participating in the sting operation. 

Minors involved in the multistate sting volunteered with the permission from a parent or 
guardian and attempted to purchase cigarettes while accompanied by a representative of the 
attorney general's office, state tobacco control program or other state agency. In Massachusetts, 
40 teens participated. 

The minors' rate of success in purchasing cigarettes ranged from a high of 56% in 
Massachusetts, which targeted areas of the state without tobacco control programs, to a low of 
23% in Vermont. 

KENO Sting 

In October 1 996, CPAD released a report describing the results of a statewide 
investigation of retailer compliance with the law prohibiting minors from participating in KENO. 
The investigation found that minors could purchase KENO tickets two out of three times. As part 
of the sting, children as young as 14 were able to make KENO bets. Retailers who sell KENO 
tickets to individuals under the age of 1 8 violate both the Massachusetts Consumer Protection Act 
and the Lottery Law. 

The students who participated in the survey were between the ages of 14 and 17. The 
students were successftil in buying KENO tickets in 109 out of 166 times, a 66% success rate. 

The survey was conducted in 35 communities in the Commonwealth including: AUston, 
Arlington, Ashland, Attleboro, Billerica, Boston, Braintree, Brighton, Burlington, Cambridge, 
Chelsea, Dorchester, Everett, Fall River, Framingham, Gloucester, Jamaica Plain, Lynn, Maiden, 
Medford, Natick, New Bedford, Peabody, Quincy, Reading, Roslindale, Somerville, South Boston, 
Springfield, Stoneham, Waltham, Watertown, West Roxbury, Wobum and Worcester. 

The survey also showed that only 34% of sales agents were in compliance with legally 
mandated posting requirements requiring them to post conspicuously information about help 
available from the Council on Compulsive Gambling. Similarly, only 46% of the sales agents 
surveyed were in compliance with the requirement that they conspicuously post a notice informing 
customers that you must be 18 years of age to purchase a lottery ticket. 



166 



I There are approximately 1 500 KENO installations in Massachusetts. Gross revenues 

from KENO are approximately $300 million per year. 

Health Club Legislation 

In March 1997, a representative of the Office delivered testimony to the Legislature's 
Joint Committee on Commerce and Labor in support of a health club bill that would provide 
greater protections to consumers who enter into health club contracts. The bill was drafted in 
collaboration with health club industry representatives and is sponsored by Sen. Robert Travaglini, 
D-Boston and Reps. Daniel Bosley, D-North Adams, and Robert Koczera, D-New Bedford. 

The bill requires health clubs to offer month-to-month memberships, limits the length of 
any health club contract so that consumers will not pay more than 12 months ahead of time for any 
service, requires that consumer deposits on unopened health clubs be placed in an escrow account, 
and provides consumers with a broad range of cancellation rights. 

Handgun Regulations 

In Jime 1997, the office announced rules that effectively ban the sale of so-called "junk 
gims" in Massachusetts and require all handguns sold in the state to include child-proofing 
features, use limitation devices and consumer safety warnings. 

The regulations require all handguns sold in Massachusetts to meet a minimum quality 
standard by passing a materials test featuring specific scientific standards for melting point, tensile 
strength and metal density, and a drop test measuring the potential for accidental discharge. 
Handguns that fail the materials test would be required to pass a performance test applying specific 
thresholds for malfunctions and part wear per rounds fired. Approximately 30 common types of 
handguns, most of them .22 or .25 -caliber weapons, would likely be barred from sale here for 
failing to win certification under these tests. None are currently made in Massachusetts. 

In addition, the regulations require all handguns sold in Massachusetts to feature child- 
proofing safety mechanisms to hinder unauthorized use, to contain duplicated serial numbers either 
in a secret interior location or on the exterior of the handgun, and to be accompanied by written 
instructions urging consumers to keep the weapons locked and stored in a secure place. 

The regulations were first proposed in July 1 996, and were followed by a day-long public 
hearing at the State House in November 1996. The regulations will be phased-in beginning 
November 1997 and will fully take effect in August 1998. 



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DIVISION OF PUBLIC CHARITIES 

The Attorney General represents the public interest in the proper solicitation and use of 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 37,000 charities are registered with the Division, as well as 249 fundraisers 
presently operating on behalf of charities in Massachusetts. A public charity is an entity which is 
non-profit, whose piupose 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 commimities, 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 the Division's annual report on 
charitable fundraising, published during the Fall giving season; the Attorney General's Fifth 
Annual Conference for Board Members; and proposed legislation in two key areas~(i) charitable 
fundraising and (ii) acquisitions of nonprofit health care providers by for-profit companies. 

SOLICITATION OF CHARITABLE FUNDS 

The Attorney General takes affirmative legal action against charities and professional 
fiandraisers 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 fimds 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. International Union of Police Associations, Vietnam Veterans of 
America, Massachusetts State Council. Inc.. American Trade and Convention 
Publications. Inc.. Robert James Drake Marketing, and George Campbell 



168 



In October, the Attorney General filed suit and obtained consent judgments against a 
professional professional fundraiser and two charities permanently banning their deceptive 
fundraising practices. The deceptive practices included impersonating police officers, naming 
local police forces without authorization, and failing to disclose the professional fundraiser's status 
as such. The court awarded $36,500.00 to the Attorney General's Local Consumer Aid Fund. 

In December, a consent judgment was obtained against another professional fundraiser 
named in the suit permanently barring it from any further charitable solicitation in Massachusetts. 

Commonwealth v. Professional Consultants. David E. Giovannucci et. al. 

In January, the Attorney General obtained a consent judgment permanently banning the 
deceptive fundraising practices of a professional fundraiser and requiring him to perform 140 
hours of commimity service. In a lawsuit filed previously, the Attorney General alleged that the 
fundraiser violated a 1993 court order that prohibited him fi-om engaging in deceptive charitable 
fundraising, by conducting another deceptive fundraising campaign. 

Commonwealth v. William Twohig d/b/a United States Charitable Publications. 

American Veteran's Relief Fund. Inc.. Disabled Peace Officers Association. Inc.. and 

American Manufacturers Mutal Insurance Company 

In April, the Division filed a complaint as part of a federal and state sweep of 
badge-related telemarketing fraud. A preliminary injunction issued against the fundraiser and, in 
June, against one of its client charities, enjoining the further use of deceptive solicitation. A 
preliminary injunction was issued against another client charity enjoining it from conducting 
fundraising activities in Massachusetts. The complaint alleged that Massachusetts residents were 
asked to donate money to purchase such items as crutches and wheelchairs for disabled veterans, 
when in fact the charity only provided a few food baskets, books or games with a total value of 
about $650 to Veterans Administration hospitals. 

In June, the surety consented to the Attorney General's motion for leave to deposit a 
$10,000 bond with the court. 

Commonwealth v. Dennis Bebar. Mass. Coalition Against Child Abuse, and Bay State 

City & Town Business Directory. Inc. 

In April, the Division filed a complaint and obtained a consent judgment against a 
for-profit organization with a charity-sounding name who solicited funds by misleading donors 
into thinking that contributions would help prevent child abuse. The court permanently barred the 
defendants from charitable fundraising in Massachusetts and ordered them to pay $9,400 to the 
Attorney General's Consumer Aid Fund and $600 in restitution to the Massachusetts Society for 
the Prevention of Cruelty to Children. 

Commonwealth v. BLS Concepts d^/a Safety Facts, Barry Singer, Fleet Associates, 

James Linehan. and Mitchell Brown 

In May, the Division obtained a judgment permanently barring the use of deceptive 
fundraising practices by two professional fundraisers and their telemarketing company. According 
to the complaint, filed previously, the professional fundraisers led people to believe that a safety 



169 



education program was a charity and that funds raised would benefit Massachusetts school 
children through the distribution of safety education materials to local schools. The program was 
in fact a for-profit corporation, and no schools had agreed to conduct the program. 
The court ordered the solicitors to pay the state $25,000 in civil penalties. 

Commonwealth v. American Veterans Assistance Corporation and RD Marketing 
In June, the Division obtained a court order requiring a veterans organization to pay 
$10,000 to the Attorney General's Local Consumer Aid Fund and to refrain from using deceptive 
practices in its fimdraising. In a complaint filed in 1994, the Division sued the charity and a 
professional solicitor who had raised fimds on the charity's behalf, claiming that the telemarketers 
led people to believe that the organization was a local organization, when in fact it was located in 
California, and that the money raised would be used to help veterans in the communities in which 
the prospective donors lived. The fundraiser previously paid $10,000 to the Attorney Generals 
Consumer Aid Fund to pursuant to a consent judgment. 

Commonwealth v. Noel Enterprises. Inc.. Leon Saja. Chiefs of Police National Drug Task 
Force. Inc.. Bay State Consulting d/b/a Bay State Consulting Corporation et. al. 
In June the Division obtained a consent judgment banning a national professional 
fundraiser from conducting charitable fund-raising in Massachusetts for a ten year period. The 
Attorney General had alleged in a complaint filed earlier that the fimdraiser had falsely represented 
that the solicitations he conducted on behalf of several national law enforcement groups were 
affiliated with or approved by Massachusetts police departments. Also, the complaint alleged that 
solicitors falsely represented to potential donors that individuals who made donations would 
receive favorable freatment by police officers. 

Also in June, another fundraiser named in the case was ordered to pay $15,000 to the 
Attorney General's Local Consumer Aid Fund, as well as to stop using deceptive practices in its 
fimdraising. 

ESTATES AND TRUSTS 

In furtherance of his authority to "enforce the due application" of charitable trust fimds 
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, t25. For example: 

Winning Home. Inc. v. Harshbarger 

Winning Home, Inc., is a charitable corporation whose principal asset consisted of 1 12 
acres of open land in the towns of Wobum, Winchester, and Lexington. Its purpose is to provide 
services to disadvantaged children and their families. Winning Home notified the Division that it 
had determined that it could best carry out its mission by selling its property to a developer and 



170 



using the proceeds to become a grantmaker. We informed Winning Home that the proposed 
transaction needed court approval, pursuant to G.L. c. 180, t 8 A. After review of the details of 
the proposed sale, including a description of the charity's financial situation, alternative plans for 
its future, and documentation of the maimer in which the proposed sale was negotiated and 
approved by the trustees, the Division assented to the charity's complaint requesting permission to 
sell its land. 

Rogerson Communities v. Harshbarger 

The charity's complaint sought permission to use a portion of its endowment assets as 
collateral for letters of credit to develop the Boston Alzheimer's Center. When it is built, the 
Center will be the only residential facility in Massachusetts devoted solely to patients with 
Alzheimer's and related disorders. Rogerson Communities provided the Division with extensive 
documentation regarding the process it undertook to determine the project's feasibility, and after 
review, the Division assented to the charity's complaint filed with the Suffolk County Probate 
Court. 

Town of Westminster v. Attorney General 

Westminster filed a complaint seeking authority to deviate fi-om the provision of Joseph 
Hager's will which devised a parcel of land known as Hager Park to the Town. The deviation 
sought would permit Westminster to convey to Fitchburg a 16.14 acre portion of the park in 
exchange for Fitchburg conveying to the town a 69.5 acre parcel of land in Westminster. The 
portion of Hager park coveyed will be used to build a court ordered water filtration plant to be 
used by both Westminster and Fitchburg. After review, the Division assented and judgment 
entered permitting the deviation. 

Thelen. Town of Wellesley v. Harshbarger 

Mildred Thelen, by her will, established a trust for the purpose of awarding scholarships 
to the most outstanding Spanish language students at Wellesley High School. The Town of 
Wellesley filed a cy pres petition, without the Division's assent, seeking to expand the purposes of 
the trust so that the Town could use trust assets to construct a language laboratory. After extensive 
negotiation, the Town agreed to entry of a judgment which adheres to the donor's intent while 
permitting the school to use a portion of the accumulated income for language lab 
"enhancements," and, thereafter, to use approximately one-third of the income generated annually 
to be used for such purposes as ftmding for student participation in language exchange programs 
and funding guest speakers and cultural events which emphasize language and culture, especially 
the Spanish language. The bulk of the income must still be used for scholarships. Judgment 
entered in July. 



Wills, Trusts, and Other Probate Statistics 

During the past fiscal year, the Division received 1 ,273 probate citations; received and 
reviewed 1 ,095 new wills, and received and reviewed 547 interim accounts for executors and 
trustees, as well as 615 final accounts. In addition, the Division received 617 miscellaneous 
probate matters or pieces of correspondence in new or existing probate cases, including 76 
petitions for license to sell real estate and 20 petitions under G.L. c.203, sec. 25 to terminate trusts 



171 



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 692 assents were 
issued in all categories of probate matters. 

Public Administration 

For the period July 1, 1996, through October 3 1 , 1996, the Division continued to 
represent the State Treasurer in the public administration of intestate estates which escheat to the 
Commonwealth because the decedent had no heirs. 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 
send escheated funds directly to the Treasury Department, Unclaimed Property Division. In 
addition, the Division opened files on 22 new intestate estates, closed 7 estates, and handled 1 5 
other miscellaneous public administration matters. In November of 1 996, in culmination of 
discussions with the Treasury Department, the Division devolved the Public Administration 
function to the State Board of Retirement. 

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 or to prevent the misuse of charitable ftmds. 
Under Attorney General Harshbarger, in recent years the Division has brought a number of 
enforcements actions and obtained several governance agreements, after investigation, in which 
charity boards have agreed to reform the manner in which they operate. 

Scott Harshbarger v. Jean Chase Corvier. Paul Cormier. Debora Dunton. et. al. 

The Division sued the executive director and board members of a non-profit day care 
center for allegedly diverting $100,000 of the center's funds to a for-profit school owned by the 
director and her husband. The complaint also alleged that members of the Board of the Directors 
of the center failed to provide meaningful oversight of the day care center's operations, or to 
protect its assets. A majority of the board members were related to the executive director. The 
complaint seeks to have the director and board members removed fi-om office, and seeks to 
recover the money which was diverted. 

Commonwealth v. Community Cancer Services, Inc. and Paul Solas 
The Division obtained a consent judgment ordering the closing of a charity that claimed 
to raise money for cancer victims, and permanently banning its president fi-om any involvement 
with charitable organizations or charitable ftmdraising in Masssachusetts. In a lawsuit filed earlier 
in the year against the charity and its president, the Division alleged that the charity failed to 
provide the extensive services it claimed to provide to cancer patients, instead performing only 
token charitable benefits. The complaint also alleged that the president and his brother 
appropriated charitable assets such as cars and computers for their own use, and that many 
expenditures classified as patient services were actually spent on the president for his personal 
benefit. The president was also ordered to pay $40,000 in restitution. 



172 



Richard Bradford et. al. v. Harshbarger 

A Dorchester church agreed to restore $97,000 to a fund meant for poor and indigent 
people which the Division maintained was spent for other purposes. The agreement settled a 
lawsuit previously filed by the church rector and wardens who were the fund's trustees, challenging 
the Attorney General's authority to require them to account for the fund. The Division alleged in a 
countersuit that between 1983 and 1993, the money was used not for the donor's intended purpose 
but rather for general church purposes, including a portion of the rector's compensation package 
and airfare and honoraria for visiting clergy. 

The agreement forbids the use of money from the fund for the benefit of any parish 
trustee or his or her relatives. It also requires the trustees to provide the Attorney Genberal's office 
with a written itemizafion of all funds used twice a year. 

Governance Agreements 

In addition to governance matters which resulted in formal litigation, agreements were 
obtained, after investigation, with the following charitable organizations: 

(1) Billerica Hockey Association. This organization came into compliance with Division 
reporting requirements, and amended its by-laws to add a conflict of interest policy. 

(2) Oak Meadow Montessori School. Hiring, evaluation and compensation procedures 
reformed. By-laws amended with conflict of interest policy and teacher grievance 
mechanism explicitly included. 

For-Profit Acquisitions 

The Public Charities Division continued this year to devote considerable time and 
resources to investigating proposed for-profit acquisitions of health care providers. 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 in a maimer 
uninfluenced by conflict of interest. 

At the end of the fiscal year, one acquisition of a nonprofit acute care hospital by a 
for-profit hospital chain had been investigated by the Division and approved by the court, and a 
second investigation was pending. 

St. Vincent Hospital v. The Attorney General 

Worcester-based St. Vincent Hospital and several of its related organizations within the 
Fallon Health System proposed acquisition by OrNda, a for-profit hospital chain. The Division's 
investigation of this proposed transaction included expert analysis and a public comment period. 
After negotiation of certain provisions, the Division recommended approval of the sale to the 
Worcester Probate Court. The court followed the Attorney General's recommendation. The buyer 
agreed to abide by the Attorney General's Community Benefits Guidelines for Acute Care 
Hospitals and to indefinite provision of free care at historic levels. As a result of the sale, a $4 
million dollar donation was made by Fallon and OrNda to the Worcester Community Foimdation. 



173 



Neponset Valley Health System 

An investigation into the proposed sale of the Neponset Valley Health System, a 
non-profit hospital system on two campuses, to Columbia/HCA, a national for-profit hospital 
chain, was pending at the end of the fiscal year. As in other Division investigations, an 
independent expert is assisting the Division and a public hearing will be held. 

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, t8A(c). During the year, the Division reviewed over 30 such 
dispositions. In addition to for-profit dispositions such as those discussed above, the Division is 
reviewing the proposed nonprofit reorganization of Blue Cross/Blue Shield of Massachusetts. 

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.l80, fl 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 1 24 final judgments dissolving 
charitable corporations pursuant to section 1 1 A. 

SIGNIFICANT DIVISION INITIATIVES 

Giving Season Public Education Campaign 

In consultation with the Attorney General's Advisory Committee on Public Charities, the 
Division continued its ongoing public education campaign regarding charitable giving and charity 
stewardship. 

In November, a Guide for Professional Solicitors and the sixth annual Attorney General's 
Report on Charitable Fundraising were published as part of the Attorney General's sixth aimual 
"GIVINfG SEASON" public educafion 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 43-page Report on Charitable Fundraising explains how charitable fundraising 
works, including the role that commercial solicitors play, and analyzes the financial reports of 274 
fundraising campaigns by solicitors. Of the total dollars raised in all campaigns, 42% went to 



174 



charity. In solicitation campaigns which involved the purchase of an event ticket, product, 
advertising, or other "premium," the charities retained 20%, on average, of the gross proceeds. 

The Division also issued a new Tips On Charitable Giving brochure. The Division also 
helped prepare, and appeared in, the Attorney General's "Issues and Answers" cable TV program 
on charitable giving in November. 

In April, the Division issued a public advisory providing tips to assist the donating public 
when they receive phone call solicitations asking for donations to police, fu^efighter, or law 
enforcement organizations. This public education initiative occurred as part of a nationwide 
federal and state coordinated crackdown on law enforcement-related fundraising fraud. 

Fifth Annual Conference fo r Non-Profi t Board Members 

The fifth annual conference for non-profit board members, entitled "Tools for Success" 
was attended by 235 volunteer charity directors and other members of the charitable sector. Held 
June 2, 1 997, in Wobum, the conference agenda addressed the challenges facing charity fiduciaries 
as they plan for the ftiture in a world of changing resources and changing structures. 

Conference and Professional Education Presentations and Publications 
As part of the Division's ongoing public education effort throughout the year, the Director 
of the Division and other Assistant Attorneys General in the Division spoke to numerous 
charitable groups, served on several continuing professional education panels and national 
educational conference panels, and contributed to educational publications, including: Health 
Affairs Journal; National Association of Attorneys General, National Association of State Charity 
Officials, American Bar Association Business Law Section, American Hospital Associations, 
Kaiser Foundation National Conference on Healthcare Conversions, Kaiser Foundation National 
Briefing for Congressional Staff and Journalists, New York University School of Law, New 
England Associaition of Corporate Directors, Massachusetts Hospital Association, Massachusetts 
Continuing Legal Education, Massachusetts Health Officers Association, Boston Bar Association, 
Boston Community Centers, Boston University School of Public Health, Deaconess Glover 
Hospital, Committee for Community Living, New England Healthcare Tax Seminar, Smith 
Healthcare Conference, North Shore United Way, Acton Boxborough United Way, Executive 
Service Corps, and Massachusetts Paralegal Association. 

National Training for Regulators on For-Profit Acquisitions 

In July, the Division planned and hosted a national training workshop for state regulators 
on issues facing states in for-profit acquisitions and conversions. More than 50 regulators from 30 
states attended the two and a half day session. Sponsored by the Attorney General, the National 
Association of Attorneys General (NAAG) and the National Association of State Charity Officials 
(NASCO), the training was supported by a grant obtained by the Division from the Henry J. Falser 
Family Foundation. 

In June, the Division obtained a $295,000 grant from the W.K. Kellogg Foundation to 
develop and conduct a national training program for regulators, policymakers, hospital trustees, 
advocates and communities dealing with for-profit acquisitions and conversions of nonprofit 



175 



hospitals and other health care entities. The grant will fund the Healthcare Conversion 
Information Project, which will create and distribute national training materials and conduct a 
training conference for regulators from across the United States. 

Legislation 

The Division drafted legislation filed by the Attorney General to strengthen the laws 
relating to charitable fundraising, while bringing them into conformity with U.S. Supreme Court 
decisions. The legislation would prohibit misrepresentations of the amount or percentage the 
charity will receive, require that the compensation paid to the fundraiser be fair and reasonable to 
the charity, and prohibit the charity from giving control or management of its affairs to its 
commercial fundraiser. 

The Division also assisted in the drafting of legislation co-sponsored by the Attorney 
General to codify and strengthen the laws relating to for-profit acquisitions and conversions of 
non-rofit acute care hospitals and health maintenance organizations. In addition to addressing the 
investigation and review procedures followed by the Division, the legislation would enact stronger 
protections relating to community benefits, indigent care, and community access to essential health 
services. 

Implementation of Probate Court's Uniform Probate Practice/Charitable Interests 
The Chief Justice of the Probate Court issued the Uniform Probate Practice: Charitable 
Interests, which became effectice December 1, 1996. The purpose of the Uniform Practice is to 
clarify when notice must be given to the Charities Division of proceedings in the Probate Courts, 
and otherv^ise to encourage uniformity of practice relating to charitable interests and to conserve 
the limited resources of both the courts and the Charities Division by eliminating unnecessary 
paperwork and delay. The new rules are the result of a Division initiative undertaken with a 
subcommittee of the Advisory Committee. 

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 4,1 1 8 
requests to view files in the past fiscal year and, in response, approximately 6,523 files were 
pulled. 

Charitable Organizations: Registration and Enforcement 

From July 1, 1996 through June 30, 1997, the Division processed approximately 13,706 
annual financial reports and annual filing fees totalled $1,384,415. During this period, 1,909 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. 



176 



As part of an ongoing compliance program, the Division contacted approximately 7,348 
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 
fi-om 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, 4,325 certificates were requested and processed. 

Registration of Professional Solicitors and Fund Raising Counsel 

Under tt22 and 24 of G.L. c.68, all persons acfing as professional solicitors, professional 
fundraising coimsel, 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 fiondraising contract which they sign with any charitable organization, and 
solicitors must later file a financial return regarding each fundraising campaign. 

During the fiscal year ending June 30, 1997, a total of 213 registrations were received and 
approved, resulting in $66,200 in fees to the Commonwealth. Registrations were received fi-om 90 
solicitors, 125 ftmd-raising counsel, and 24 commercial co-venturers. 

Charifies Division Computerization 

With Information Technology ftmding from the Legislature, the Division is in the process 
of developing and implementing a new, comprehensive database and imaging system for the 
Division's charity and fundraiser registrations and financial filings. The new system will enhance 
compliance with the registrafion and financial reporting requirements, facilitate the Division's 
administration of the registrations and filings, and improve public access to the filed information. 



TABLE I: Money Recovered 
For The Commonwealth Treasury 

A. Charitable Registrafions, Certificate Fees, $1,450,215.00 
And Fundraiser Registrations 

B. Other fees, requests for copies, requests 

for computer information 5,083 . 1 1 



177 



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 often 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 insurance rate 
setting proceedings. The Division also performs a consumer protection/insurance laws 
enforcement ftmction: 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 

1997 Private Passenger Automobile Insurance: 

On July 3, 1996, the Automobile Insurance Bureau of Massachusetts ("AIB") filed with the 
Division of Insurance its recommendation concerning the profit component of 1997 private 
passenger automobile insurance rates. On August 16, 1996, AIB filed with the Division of 
insurance its recommendation concerning the main rate for 1997 private passenger automobile 
insurance rates. On profits, AIB requested an increase of 2.3% and on the main rate, it requested 
an additional 4.8% increase over the 1997 rates. If approved, these requests would have been 
equivalent to an average increase in auto insurance premiums for Massachusetts drivers of $60 per 
car or 207 million dollars overall. On behalf of Massachusetts consumers, the Division challenged 
the increase requested by the industry. During the course of the evidentiary hearings and 
following the discovery of an error by a mathematician in the Division of Insurance, the AIB filed 
an amended filing indicating that an error had occurred in the filing. On ftirther questioning by 
the Division, the AIB acknowledged that the same error had occurred during the years 1991 
through 1 996 rate years. The Division filed a request with the DOI that the industry be required to 
refund the amounts collected during those years, a total of $176 million dollars. The 
Commissioner ruled that the funds should be reimbursed to consumers. On January 24, 1 997, the 
Commissioner issued a decision fixing and establishing an average rate for which is approximately 
6.2% lower that the equivalent 1996 rate or 13.3% lower than the industry's requested increase. 
This reduction included 40% of the 176 million dollars collected in error during the years 1991 
through 1996. The remaining 60% will be returned to policyholders during the years 1997 and 
1998. The Division's intervention resulted in savings to Massachusetts consumers of 390 million 



178 



dollars or an average of $114 per car. In addition, rates will be reduced in 1998 and 1999 by 
approximately 70 million and 35 million dollars respectively. 



1998 Automobile Insurance: 

Proceedings concerning the 1998 automobile insurance rate began on May 27, 1997 with notice of 
the armual hearing called by the Commissioner to determine whether it was necessary that the rates 
for 1998 be fixed and established in accordance with G.L.M. c. 175, §1 13B. The Division 
participated in the hearings and took the position that market conditions continued to require that 
rates be set pursuant to G. L. M. C. 175. The Division noted, however, that for the second 
consecutive year some level of competition already existed in Massachusetts as a result of the 
large number of group rates and deviations approved by the Commissioner during 1996 and 1997. 
No decision had been issued by the Commissioner by the end of the fiscal year although the 
Commissioner did ultimately concur with the Division's position and ordered that the rates be 
fixed and established for the year 1997. 

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. On August 8, 1995, BCBS filed an amendment to the above 
filing to change the product offerings. In light of the proposed reform of the non-group health 
insurance bill pending in the Legislature, the Division and BCBS negotiated a continuance in the 
rate case pending passage of reform legislation. Following the passage of reform legislation in 
August of 1996, BCBS withdrew its application for increased rates. As a result of the Division's 
agreement with BCBS in 1995, there were no increases in BCBS non-group indemnity plans since 
1993. 

1997 Prudential Insurance Company - AARP Medicare Supplement Insurance: In the fall of 
1996, the Division participated in hearings to consider the Prudenfial's proposed Medicare 
supplement insurance requests for increases in both their pre and post OBRA and pre and post 
G.L.M. C.176K plans. The Attorney General participated in the hearings. The case was settled 
through stipulations that required nofice to all consumers of the new plan offerings available as a 
result of the enactment of G.L.M. C.176K (Medicare supplement insurance reform) which 
mandated coverage to all consumers at generally lower rates. The stipulation also significantly 
reduced the rate requested by the Prudential resulting in savings to Massachusetts consumers of 
over one million dollars. 

Bankers Multiple Line Medicare Supplement Insurance: 

In the July of 1996, the Division participated in hearings to consider Bankers Multiple Line 
Medicare supplement insurance requests for increases in their pre and post OBRA and pre and 
post G.L.M. c. 176K plans. Bankers Multiple Line requested increases of over 100% in their 
plans. The Attorney General participated in the hearings. The case was settled through 
stipulations that required notice to all consumers of the new plan offerings available as a result of 
the enactment of G.L.M. 176K (Medicare supplement insurance reform) which mandated coverage 



179 



to all consumers at generally lower rates. The stipulations also resulted in lower rates that saved 
Massachusetts consumers over one million dollars. 

BCBS Medicare Supplement Insurance: 

In August of 1996, BCBS filed for an increase in its Medicare supplement insurance policy rates to 

be effective January 1, 1997. Following lengthy hearings before the Commissioner in which the 

Division actively participated and argued against the increase, the Commissioner approved an 

increase, effective March 15, 1997, that was almost 6 million dollars less than BCBS had 

requested. 



CONSUMER PROTECTION/ENFORCEMENT 

The Division also engaged in non-rate case related insurance work during fiscal year 1 997 
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 1997 fiscal year, the Division continued its work in this area which had been 
initiated in a prior fiscal year. 

Investigations: 

The Division continued to investigate complaints against employers by employees that 
their health insurance had lapsed because of the failure of their employer to pay health insurance 
premiums or otherwise to provide sufficient funding to cover their employees' health costs. The 
majority of these complaints involved a dispute between a single employee and the employer, and 
were resolved by payment of the outstanding medical claims by either the employer or the insurer. 
There has been a significant decrease in the number of complaints from prior fiscal years against 
employers who allowed coverage to terminate because of nonpayment of premiums. The Division 
ascribes this decrease to the efficacy of the Attorney General regulation, 940 C.M.R. 9.00, 
effective March 1 996, which encouraged notification by insurers to employees prior to termination 
of coverage. Except for single employee issues, complaints received now relate to self insured 
plans only. Some of these complaints required the Division to take more formal action as 
described below. 

Civil Litigation 

The Division entered into a consent decree with one Massachusetts employer, Carr 
Leather, which had represented to its employees that it was withholding funds for the payment of 
health insurance premiums and also represented to employees that it was providing health 
insurance when in fact it was not. The consent decree provided that Carr Leather would pay all 
outstanding medical costs of injured employees and make contributions to the Massachusetts 
Consumer Aid Fund. The Division alerted the Attorney General's Fair Labor and Business 
Practices Division to the company's failure to pay wages and vacation pay. Working with the Fair 



180 



Labor and Business Practices, the Division obtained over $1 30,000 in reimbursement to 47 
employees for unpaid medical bills, wages and vacation pay. 

Criminal Litigation 

The Division continued its prosecution of John E. Flynn, Jr., the owner and CEO of a 
Boston architectural and engineering firm, Alonzo B. Reed, who allegedly failed to remit health 
insurance premiums and other payroll withholdings including employees' contributions to the 
employer's 401(k) plan and state withholding taxes. Flynn was indicted by a Suffolk County 
grand jury during the previous fiscal year for several counts of larceny of employee funds, failure 
to account for and pay over state withholding taxes and failure to file personal income tax returns. 
The Division continued to work with the U.S. Attorney's Office in Boston, to which it previously 
had provided evidence that Flynn had committed related federal crimes. At the end of this fiscal 
year, Flynn pleaded guilty to federal bankruptcy fi-aud and ERISA embezzlement in federal court, 
and is due to be sentenced in September 1997. The state case will be resolved by plea or trial 
during the next fiscal year. 



HOMEOWNERS INSURANCE 

The Division continued its work in the examination of the problems faced by urban 
dwellers in the purchase of homeowners insurance. In particular, the Division participated in the 
request for a rate increase filed by the FAIR Plan and also was active in supporting Community 
Reinvestment legislation. 

FAIR Plan Rate Increase: 

In August, 1996, the Massachusetts Property Insurance Underwriting Association ("FAIR") 
submitted to the Division of insurance filings regarding their Homeowners product, the Personal 
Property endorsement. Commercial lines and Dwelling and Fire coverage. The Division 
participated in the hearings and the case was settled by stipulation. The stipulations resulted in 
savings to Massachusetts consumers of over $600,000 . 

Community Reinvestment Bill: 

In March, 1997, The Division presented testimony to the Joint Insurance Committee of the 
Legislature in support of a community reinvestment bill for the insurance industry. The bill 
would require insurance companies to invest in the low and moderate income communities and to 
report annually to the Division of Insurance, the amount of these investments. On behalf of the 
Attorney General, the Division also asked the Joint Committee on Taxation of the Legislature to 
condition any tax benefit to the insurance industry on community investment. In addition, 
members of the Division attended several community meetings to educate members of the 
community about community reinvestment and to express support for the passage of the bill. 



181 



LONG-TERM CARE INSURANCE 



The Division continued its work in the examination of problems faced by elders in financing 
nursing home and other long-term care. 

Long Term Care Task Force: 

Members of the Division, together with Bureau attorneys, participated in a statewide Task Force 
on Long-Term Care Financing (the "Task Force"). The Task Force is a bipartisan effort led by the 
Attorney General and the Governor to develop strategies to increase the private financing options 
for long-term care, and to provide financial security to elders who risk impoverishment fi-om the 
costs of long-term care services. Participants include representatives of the relevant state agencies, 
consumer and elder advocacy groups, the insurance industry and long-term care provider 
organizations. The Task Force is an outgrowth of the Interagency Workgroup on Long-Term Care 
Financing, in which members of the Division and Bureau attorneys worked with the Division of 
Insurance, the Division of Medical Assistance and the Executive Office of Elder Affairs during the 
first part of the 1997 fiscal year to produce a preliminary report that called for further study of 
certain issues. Members of the Division serve on the Task Force steering committee, and are 
leading and participating in several work groups that are studying a number of issues, including the 
regulation of long-term care insurance, public education concerning long-term care financing, and 
development of alternative insurance products to cover some of the costs of long-term care. The 
Task Force will be continuing into the next fiscal year. 



Consumer Complaints and Education: 

This year's enactment of the federal Health Insurance Portability and Accountability Act, 
which provides certain tax incentives for the purchase of long-term care insurance, has resulted in 
increased marketing of these products and increased consumer conftision. The Division responded 
to numerous consumer inquiries regarding long-term care insurance policies. A member of the 
Division made presentations to elder organizations concerning long-term care insurance. 



MANAGED CARE 

As more and more Massachusetts citizens receive their health care coverage through health 
maintenance organizations, the Division engaged in sever al activities to ensure that those citizens 
get the health care coverage they need. During the 1 997 fiscal year, the Division undertook a 
variety of initiatives in the area of managed health care. 

Managed Care Complaints: 

Members of the Division resolved complaints received fi-om consumers, and in some 
cases providers, concerning managed care plans. These complaints fell into several categories: 
difficulty accessing the grievance procedures of the managed care organization; problems related 
to limited networks of providers; denials of coverage for care received in emergency rooms; 
denials of coverage for care deemed not medically necessary or experimental; utilization review 
policies and practices (e.g., denials of coverage made by unqualified plan personnel); and 
complaints related to quality of care, among others. These complaints gave the Division an 
understanding of the kinds of problems that consumers face in managed care settings. 



182 



Managed Care Report: 

A member of the Division was responsible for researching and writing the Attorney 
General 's Report on Managed Care in Massachusetts: Protecting Managed Health Care 
Consumers, a comprehensive document that examined the state of managed care in Massachusetts 
and made detailed recommendations for the creation of a state regulatory framework for managed 
care. The purpose of the report was to stimulate public debate and legislative action. The 
Managed Care Report was the product of a year-long effort by the Division, and other Bureau 
attorneys, which involved reviewing Massachusetts and other states' laws applicable to managed 
care organizations, analyzing existing literature and studies pertaining to developments in the 
managed care and health care markets, and consulting with representatives of the managed care 
industry, provider groups, the Legislature and consumer groups. 

Legislative Work: 

The Division provided information and support to members of the Legislature in their 
drafting and consideration of managed care legislation. This included the compiling of statistical 
information related to managed care complaints received by the Division. The Division prepared 
testimony, delivered by the Attorney General, for legislative hearings on managed care legislation. 

Public Records Request: 

The Division devoted substantial resources toward responding to a public records request 
by the Massachusetts Association of HMOs for copies of all managed care complaints that the 
Division had received over a two-year period. 

HMO Community Benefit Guidelines: 

A member of the Division, with other Bureau attorneys, undertook oversight of the 
Attorney General's HMO Community Benefits Guidelines. During the 1997 fiscal year, the 
Division member provided guidance to the HMOs in their completion of the first annual 
community benefits reports, which were due on the last day of the fiscal year. This work will 
continue into the next fiscal year, with the preparation of the Attorney General's report evaluating 
the HMOs' community benefits programs. 



LIFE INSURANCE LITIGATION 



Consumer Complaints: 

During the year, the Division devoted a considerable amount of time and resources to sales 
practices in the life insurance industry. These practices included the alleged misrepresentations 
made by various life insurance companies in the sale of their life insurance products. These 
misrepresentations generally involved "churning" (the practice of turning in old policies for new 
policies on the representation that the old policies would fully or partly support the new); 
"vanishing premiums" ( the promise that premiums would no longer be necessary after a finite 
number of years). The Division mediated cases on behalf of individual consumers and also 
engaged in discussions with several companies that would resolve the cases on a global basis. 



183 



Companies with whom we mediated individual complaints included: Berkshire Life, Boston 
Mutual Life , Crown Life, Equitable Life Assurance Society, John Hancock, 
MassMutual/Connecticut Mutual, Metropolitan, Mutual of New York, New York Life, Provident 
Mutual, Prudential Life Insurance Company of America, Sentry, The New England and 
Transamerica Life. Individual settlements reached on behalf of individual consumers resulted in 
benefits to them of over six hundred thousand dollars. 

Prudential Life Insurance Company of America 
Litigation: 

In addition to the resolution of individual complaints, the Division engaged in litigation 
with Prudential to provide a remedy to all consumers who had been harmed by widespread sales 
practices which allegedly deceived and harmed its life insurance policyholders. Policyholders 
complained to the Division that Prudential had: (I) unfairly "churned" their policies, by convincing 
them to surrender or borrow against old policies and buy more expensive new policies, without 
disclosing the full costs and risks involved; (ii) misrepresented that the obligation to pay annual 
premiums would vanish after a finite number of years, when the life insurance policies actually 
required premium payments for the life of the policyholder; and (iii) deceptively sold life 
insurance policies as investments, retirement plans, or other non-life insurance products. 

In January, 1997, after months of negotiation with the Prudential, the Division filed a 
petition to intervene in a federal class action suit against Prudential pending in New Jersey. On 
February 3, 1997, the federal court granted the Attorney general leave to intervene. In December, 
1996 and February, 1997, the Division filed preliminary and supplemental objections, respectively, 
to the proposed settlement of the federal class action case, arguing that the settlement placed too 
many burdens on consumers who would file claims. 

After continuing negotiations with the Prudential, the Division, on behalf of the Attorney 
General, entered into a preliminary settlement with Prudential on February 21, 1997. In the 
settlement. Prudential agreed to make it easier for injured consumers to prove their claims and 
also to increase the relief that would be to those consumers. After further negotiations, Prudential 
consented to the entry of a judgment against it in the Massachusetts Superior Court, and the court 
approved the judgment on June 19, 1997. The judgment requires Prudential to resolve claims 
from individual policyholders under an Alternative Dispute Resolution (ADR) process. The 
Division estimates that, as a result of this process, Prudential will eventually provide refunds and 
other forms of relief to Massachusetts policyholders worth $20 million to $40 million. 

Claims Settlement: 

As part of the settlement of the Massachusetts case, the Prudential provided the Office of the 
Attorney General with $ 1 .2 million. Two hundred thousand was for the Score program conducted 
by the Attorney General, two hundred thousand was for the Local Consumer Aid Fund, one 
hundred and fifty thousand was contributed to the Commonwealth's general fund as payment of 
costs associated with the litigation and six hundred thousand was for the general purpose of 
educating consumers about insurance. The Division used a significant portion of these ftmds in an 
extensive outreach program, including media advertising, to reach all Prudential policyholders to 
inform them that the Division was available to help them. In addition, the Prudential sent a letter 



184 



to over 250,000 Massachusetts policyholders advising them of the Division's efforts. Apparently, 
as a result of this outreach, over 45,000 Massachusetts consumers elected to file claims through 
the ADR process. This was significantly higher (about quadruple) than the Prudential had 
expected and than the percentage in other states. Along with the Massachusetts Division of 
Insurance, the Division set up a Hotline to answer consumers' questions about filing claims and to 
help them with filling out the claims forms. During the first four weeks of its operation, the 
Hotline responded to more that 13,000 consumers. In addition to the Hotline, the Division 
conducted training seminars around the state to help consumers. The training sessions continued 
into the next fiscal year and it is anticipated that approximately 1,500 consumers will attend those 
training sessions. 



John Hancock Mutual Insurance Company: 

Early in 1 997, the division entered discussions with John Hancock Mutual Life Insurance 
Company regarding possible settlement of the large number of complaints Massachusetts 
consumers have made against its sales practices. Hancock filed a proposed global settlement with 
the federal district court in Boston, in connection with a nationwide class action lawsuit brought by 
policyholders. The Division is reviewing the proposed settlement and attempting to improve on 
the relief it offers consumers. 

In the interim, the Division has worked with Hancock to resolve the more than 100 individual 
complaints we have received. As of June, 1997, Hancock began making settlement offers to 
individual consumers. 

LEGAL ACTIONS 

Commonwealth v. Coletti: 

The Division filed a complaint against an insurance broker, William Coletti, alleging that he had 

accepted premium payments from consumers but failed to remit the premiums to the insurance 

companies. The Division obtained a preliminary injunction enjoining Coletti from depositing 

premium payments into his own accounts. The Division also obtained restitution for injured 

consumers. 

Commonwealth v. Attias: 

During the year, the Division received approximately $7,500 in payments from Rent-A- Wreck of 
Framingham in connection with a consent judgment entered against it in April, 1996. Consumers 
had lodged numerous complaints against Rent- A- Wreck for a variety of unfair practices connected 
to its car rental business - illegally requiring renters to purchase collision damage waivers 
(CDWs); failing to waive damage claims against those who had purchased CDW coverage and had 
accidents; and renting defective automobiles. The consent judgment required R-A-W to pay 
almost $10,000 in fines and to repay harmed consumers approximately $2,500. 



185 



ASSURANCES OF DISCONTINUANCE 

The Division entered into one Assurances of Discontinuance during fiscal year 1997 

Central Massachusetts Health Care, Inc. : 

The Division entered into an Assurance of Discontinuance with Central Massachusetts Health 
Care, Inc. ("CMHC"), a health maintenance organization ("HMO") that closed its prescription drug 
formulary after the open enrollment period without prior notice to its members. The Division 
investigated CMHC based on complaints received from Mass. Organization of State Engineers and 
Scientists ("MOSES") Legislative Chairperson, John Gatti. Meetings with MOSES and with 
CMHC, discussions with consumers, and legal research and analysis resulted in the Division's 
finding that CMHC had violated c. 93 A by changing the pharmacy benefit after the close of the 
open enrollment period. CMHC re-opened the formulary on February 1, 1996, but the Division 
obtained restitution for consumers harmed while the formulary was closed. The Assurance of 
Discontinuance required CMHC to reimburse its enrollees for out-of-pocket expenses incurred as a 
result of CMHC's closing of the prescription drug formulary and a contribution to the Local 
Consumer Aid Fund. Total refimds to consumers were approximately $35,000.00. 

CONSUMER ASSISTANCE 

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. 

Coverage for Bone Marrow Transplants: 

In two cases, the Division successfully negotiated coverage of the donor search costs in connection 
with a bone marrow transplant. Consumers who had coverage for bone marrow searches 
discovered, when they tried to access that coverage, that while their carriers would cover the cost 
of the actual transplant, they would not cover the cost of testing potential donors. Because the cost 
of testing potential donors can exceed $10,000.00, the consumers were unable to proceed with the 
transplant. A member of the Division got the agreement of both carriers to pay for the cost of 
testing in addition to the transplant already covered. Subsequently, the Division undertook an 
examination of the policies and practices of the 50 largest carriers in Massachusetts regarding the 
payment of testing for bone marrow donor costs. The survey had not been completed by the end of 
the fiscal year. 

Emergency Treatment by Clinics: I 

In another case, the Division challenged the internal policies of a clinic operated by a 
managed care organization that denied emergency assistance to a non-member who was 
suffering a heart attack. The Division's challenge resulted in changes to the policies of the 
clinic to ensure that appropriate assistance would be provided in the fijture. 



186 



Fraternal: 

In response to complaints against Fraternal Organization, an 

entity that acts as an intermediary for small businesses seeking health insurance, the Division 

investigated fraternal. In its capacity as intermediary collected premiums from small businesses 

and failed to remit the premiums to carriers resulting in wide scale cancellations by the carriers. 

Following our investigation. Fraternal refiinded premiums to the consumers and terminated its 

business as an intermediary. The Division also assisted in making sure that these consumers found 

adequate alternative health coverage. 



Consumer Hot-Line and Paralegal Resolution of Inquiries and Complaints: 

During the fiscal year, the Division received and responded to almost 8,000 telephone inquiries, an 

increase of 33% over the prior fiscal year; almost 1700 written complaints, an increase of 50 % 

over the prior fiscal year. Over $1,200,000.00 were received by consumers through the 

intervenfion of the paralegal and volunteer interns, an increase of almost 75% over the prior fiscal 

year. 

AGELDER: 

During the year, the Division initiated a new toll free help line to assist individuals on a wide range 
of elder issues. The help ;line, which is staffed by elderly volunteers, serves as a comprehensive 
resource for information and referral on a full range of concerns raised by callers. Those concerns 
include health insurance, home health care, long term care, long term care insurance, Medicare, 
Medicare supplement coverage, Medicaid, disability rights, age discrimination, telemarketing 
fraud and other consumer protection issues. In its first month of operafion, the help line received 
over 700 calls. 

VIATICAL SETTLEMENTS 

The Division undertook several initiatives regarding viatical settlements during the fiscal year: the 
promulgation of regulations regarding viafical sales and viatical loans; the publication of a 
brochure advising terminally ill people how to obtain cash out of their life insurance policies; and 
the provision of testimony in support of a bill requiring the licensing of viatical companies. 

Viatical regulations: 

Working closely with the Aids Acfion Committee, the Division drafted regulations. They were 
sent out for comment to interested parties. Following receipt and incorporation of many of the 
comments, the Division scheduled a public for public comment. The regulation will be 
promulgated in the next fiscal year. 

Brochure: 

Public Protection Bureau attorneys and the Division drafted a brochure entitled "Turning Death 
Benefits into Living Benefit: A Guide to Drawing Cash from your Life Insurance Policy". The 
brochure will be distributed widely through various organizations helping the terminally ill. 
Publication date is scheduled for the Summer of 1 997. 



187 



Testimony: 

The Division presented testimony to the Massachusetts Committee on Insurance in support of 
House Bill 52 which would require viatical companies to be licensed by the Massachusetts 
Division of Insurance prior to conducting business in Massachusetts. The bill was filed after the 
Division began work on regulations on viatical sales which would place certain disclosure 
requirements on viatical companies. The bill and the regulations will ensure that Massachusetts 
consumers that enter into viatical arrangements will have the protection needed for this vulnerable 
population. 



OTHER ACTIVITIES 

LEGISLA TIVE A CTIVITIES 

In addition to the legislative testimony on managed care, viatical companies and community 

reinvestment mentioned previously, the Division also testified on several other bills before the 

Legislature. 

Non discrimination: 

The Division testified in support of a bill. Senate Bill 716, cosponsored by Attorney General Scott 
Harshbarger and Senator Dianne Wilkerson. The bill would provides that insurance companies 
may not discriminate on the basis of gender, inter alia, either in the pricing or sale of policies. 

Mutual Holding Companies: 

The Division wrote to the Massachusetts Joint Committee on Insurance urging the Committee to 
consider the balance between consumer interests and the interests of the insurance companies prior 
to passage of a statute. 

Auto Insurance Overcharge: 

The Division testified before the insurance Committee in favor of a bill that would require the auto 
insurance to return amounts during previous years through an error in the auto industry's annual 
rate request. Because the Commissioner ordered the companies to return the moneys, as requested 
by the Division, in her rate decision, the bill became moot and no fiirther action was taken. 



Mandated Benefits in Health Insurance: 

A member of the Division testified in favor of a bill which would require coverage for certain 

contraceptive services and also for Estrogen Replacement Therapy. 

Sale of Insurance by Banks: 

In a letter to the Massachusetts Joint Committee on Banks and Banking, the Division asked the 
Committee to consider additional consumer protections in the bill prior to passage. The additional 
protections would provide clear delineation between banking and insurance functions and require 
clear disclosures of this distinction. 



188 



REGULATORY ACTIVITIES 

Medigap Insurance: 

In June 1 997, the Division presented testimony at a public hearing convened by the 
Division of Insurance to monitor the overall condition of the Massachusetts market for Medicare 
supplement insurance following the reform enacted by the Legislature in December, 1993. 

Non-group Health Insurance Reform: 

A member of the Division testified before the Division of insurance on the proposed regulations 

regarding the rate hearings for the new non group health insurance products. 

MISCELLANEOUS ACTIVITIES 

Guest Speakers 

Members of the Division made presentations to several organizations regarding insurance 
and financial exploitation of elderly. 

Public Education Programs 

Consumer University 

A member of the Division participated in the presentation of Consumer University, an 
Attorney General sponsored consumer advice program that was presented to 300 consumers as the 
opening day of the NAAG Conference. 

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 are 
sold in Massachusetts and advising them of their options. 



189 



ESTIMA TED SA VINGS TO CONSUMERS 

Auto Rate Case 390,000,000 in 1 997 rates 

70,000,000 in 1998 rates 
35,000,000 in 1999 rates 
Medigap Insurance Rate Cases 8,000,000 

Life Insurance mediation 600,000 

Prudential case 30,000,000 

Consumer Insurance Matters 2 1 0,000 

Consumer Hotline 1.200.000 

Total 535,010,000 



UTILITIES 

The composition of the Regulated Industries Division's utility workload in fiscal year 
1 997 continued to reflect the rapid and dramatic changes underway in the telephone, electric and 
gas utility industries: there were few traditional rate cases and 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 jfrom 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/factfinding proceedings or in adjudications 
of specific cases. Examples of the Division's public utility work relative to each industry in fiscal 
year 1997 include: 



ELECTRIC MATTERS 

Restructuring 

Electric Utility Restructuring, D.P. U 96-100. On May 1, 1996, the DPU issued proposed 
regulations to implement a "restructuring" of the Commonwealth's investor owned electric utility 
industry in a Notice of Inquiry/ Rulemaking proceeding it had opened earlier. Among other things, 
in it request for coimnents, the DPU indicated that it intended to allow electric utilities to recover 
any stranded costs over the next ten years fi-om their customers and sought comments on the 
following issues related to restructuring: (1) market structure, (2) market power, (3) 
transmission service and rates, (4) distribution service and rates, (5) stranded cost 
calculation and recovery mechanisms, (6) rate unbundling, (7) performance-based 
ratemaking, (8) environmental regulation and demand-side management, (9) default 
service, (10) universal service, (1 1) the effect of restructuring on municipal electric 
companies, and (12) the local and utility tax impacts of restructuring. The Division filed 
written comments with the DPU during the Spring, presented oral testimony at hearings held 



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during June and July of 1996, filed written comments in August, 1996, and explained the Attorney 
General's position on electric utility restructuring at evening public hearings held by the DPU 
throughout the state during the fall of 1996. In an order issued on December 30, 1996, the 
Department determined that it would not proceed without further legislative direction but did 
indicated agreement with many of the modifications to its May 1 proposal that the Office had 
recommended in its earlier comments, including a requirement that all distribution utilities make 
available to their customers a fixed price transition service. 

Massachusetts Electric Company, DP. U. 96-25; Boston Edison Company, DP. U. 96-23; 
Eastern Edison Company, DPU 96-24. Following the DPU's public pronouncement in May, 
1996 that it would allow electric utilities to recover "stranded costs" fi-om their customers, the 
Division initiated settlement talks with electric utilities in an effort to ensure that any restructuring 
in Massachusetts satisfied the five principles for restructuring that the Attomey General had 
aimounced in early 1996. Following negotiations over the summer of 1996 with Massachusetts 
Electric Company and its wholesale affiliate. New England Power Company, in September, 1996 
the Attomey aimounce his "Consumers First" agreement with those Companies. The agreement 
was filed with the DPU in October after numerous parties joined and supported the agreement, 
including the Weld/Cellucci administration, low income, environmental, and energy conservation 
advocates as well as potential suppliers and/or sellers of competitive power. Under the terms of 
the settlement, the Companies agreed to: (1) a ten percent overall rate reduction for all existing 
customers upon the effective date of restructuring; (2) stranded cost recovery limited to the actual 
amount by which the Companies' sunk costs exceeded their market value (i.e., book value less the 
sales proceeds for all of the New England Power Company's non-nuclear power generation 
plants); (3) continued levels of substantial funding for energy efficiency programs and programs 
designed to promote clean renewable energy resources; (4) continued funding for special rates for 
low income consumers as well as ftmding for a new credit guarantee program designed to 
encourage market participants to serve such customers; and (5) mechanisms to ease the transition 
to market competition for customers (a "standard offer" transition rate), utility employees 
(treatment of retraining, severance, and early retirement programs as recoverable "stranded costs"), 
and communities that host power plants (treatment of any necessary "payments in lieu of taxes" as 
recoverable stranded costs). Following evidentiary hearings in November and December, 
responsive briefing, and minor modifications in January, the DPU approved the agreement in late 
February. The Division intervened in and at the end of the year was actively participating in a 
proceeding before the Federal Energy Regulatory Commission concerning the wholesales aspects 
of the agreement. 

In December 1996, the Division announced that together with the Division of Energy 
Resources within the Executive Office of Economic Affairs, it had reached agreements in principle 
with Boston Edison Company (DPU96-23) and Eastern Edison Company (DPU96-24) to 
implement the Attomey General's "Consumers Firsf approach to restmcturing. On May 16, 
1997, the Division, together with ten other interested parties submitted to the DPU a written 
settlement agreement with Eastem Edison Company and its wholesale affiliate, Montaup Electric 
Company that was substantially identical to the earlier agreement with Massachusetts Electric and 
New England Power Companies . At the close of the fiscal year, evidenUary hearings had not yet 



191 



begun on the proposed settlement. A written agreement with Boston Edison was filed with the 
DPU shortly after the close of the fiscal year. 



Legislative Efforts. During fiscal year 1 997, the Division continued to assist the 
Legislature in its consideration of electric industry restructuring, giving testimony on general 
restructuring issues as well as the Consumers First agreement with MassElectric to both the 
Committee on Government Regulations and the Special Committee on Electric Utility 
Restructuring. The Division also provided drafting and other assistance to the Special Committee, 
which, on March 20, produced a comprehensive report on the many restructuring issues as well as 
proposed legislation. 

Generating Performance Reviews/Fuel Clause Proceedings 

Although there were no traditional base rate cases involving electric companies during the fiscal 
year, the Division was active in proceedings concerning the performance of certain electric 
generating units. In addition to conducting discovery in proceedings concerning the extended 
outage of the three Millstone nuclear units in Connecticut and securing an agreement with Western 
Massachusetts Electric Company to defer any request to recoup replacement power costs incurred 
during those outages, the Division was active in performance reviews concerning generating units 
supplying power to Boston Edison, Commonwealth Electric Company, and Cambridge Electric 
Light Company. Although none of these matter reached the hearing stage during the fiscal year, 
on March 7, 1997 the DPU issued a decision in an earlier Boston Edison performance review 
(D.P.U. 95-1 -A), in which it accepted a number of arguments the Division had made. The 
Department found that Boston Edison imprudence had be the cause of outage days not only at its 
Pilgrim nuclear power plant but also at its fossil fueled New Boston and Mystic plants and ordered 
refunds to Boston Edison consumers of almost $2 million. 

GAS MATTERS 



Base Rate Cases 

Boston Gas Company (DPU 96-50) In May, 1996, Boston Gas Company filed a request to increase 
its rates by $31 million (4.7%), which reflected its proposal for a traditional rate increase as well as 
one to, beginning in December 1996, to subject it rates to a so-called "price cap" approach to rate 
regulation, which would provide that the overall level of the Company's rates would be adjusted 
annually to reflect the reported rate of inflation, less a productivity factor of 0. 1 percent The 
Division participated in evidentiary hearings during the summer of 1 996 and filed briefs in 
September and October, opposing the proposed increase and the "price cap" proposal. Throughout 
this period, the Division was also an active participant in a formal mediation process conducted 
under the auspices of Massachusetts Office of Dispute Resolution which involved all of the parties 
active in this phase of the proceeding: the Massachusetts Division of Energy Resources, 
Associated Industries of Massachusetts, and The Energy Consortium, a group composed of the 
Company's largest customers. This process produced a settlement agreement which was filed with 



192 



the DPU in November, under which the Company would: be permitted to increase its rates by $13 
million or 1 percent, be required to fund conservation programs for low income consumers, and be 
required to offer a fixed price "interruptible transportation" rate during most of the year. A the end 
of November, the DPU rejected the settlement agreement, instead it allowed a rate increase of $6 
million and eliminated any fixed price interruptible tariff. The Company filed motions seeking 
recalculation and reconsideration of a number of aspects of the DPU Order. The Division opposed 
most aspects of these motions, but the DPU did increase the amount of the allowed increase to 
$8.5 million and modified the price caps scheme by lowering the base level for service quality and 
the productivity offset from 2.0 to 1.5 percent. The Company filed an appeal of this decision to 
the Supreme Judicial Court which was pending at the close of the fiscal year. 

Fall River Gas Company (DPU 96-60) In May, 1996, Fall River Gas Company filed a request to 
increase its rates by $5. 1 million (1 1 .9%). The Division participated in evidenfiary hearings held 
during July and August, 1996 and, on October 3, filed a settlement agreement with the DPU in 
which the amount of the rate increase was reduced to $3.2 million and the company agreed to cap 
the average increase to residential customers at 8.5%, nearly 50% less than the increase the 
company had proposed initially for residential customers. The settlement agreement which was 
approved by the DPU also required the company to withdraw its incentive rate making proposal 
and to a three year rate freeze. 

Blackstone Gas Company (DPU 96-65) In June, 1996, Blackstone Gas Company filed a request to 
increase it rates by SI 14 thousand (13.2%). The Division intervened and following discovery and 
extensive negotiations, reached a settlement which was filed with and approved by the DPU. 
Among other terms, the settlement required that the proposed increase be limited to $62,000 and 
the Company be required to share with its customers any future earnings above a specified level. 

Essex County Gas (DPU 96-70) In May, 1996, Essex County Gas Company filed a request to 
increase its rates by $3.4 million (7.4%). The Division intervened and following discovery and 
extensive negotiations, reached a settlement which was filed with and approved by the DPU. 
Among other terms, the settlement required that the proposed increase be limited to $2.1 million. 

Restructuring 

Boston Gas Company (DPU 96-50) Simultaneous with the rate increase it had proposed, Boston 
Gas Company also put forward a proposal under which it withdraw from the provision of bundled 
gas and delivery service over the next five years and would allow all of its customers to choose 
their supplier of gas. Although this aspect of the Company's May, 1996 filing was the subject of 
much discussion among the many parties that intervened in the rate case and participated in the 
mediation sessions, no agreement was reach on the many issues raised by the Boston Gas proposal. 
In its November 1996 decision on the proposed rate increase, the DPU deferred any decision on 
the Company's proposal until Phase II of that proceeding, which was still pending at the close of 
the fiscal year. 

Bay State Gas Company, (DPU 95-104-A) Worked with the Company to design reports on the first 
year of a pilot program under which it allowed a limited number of residential and commercial 



193 



customers to purchase their supply of gas from a number of competitive suppliers. Also worked to 
design the terms of the second year of the pilot under which all of the Company's 80,000 
residential and commercial customers in its Springfield Division will be eligible to participate. It 
will also open up the option of supplier choice to small commercial customers in the Brockton 
area. The Second Year Pilot will feature an open enrollment so that customers can choose or 
switch suppliers at any time throughout the year starting August 1, 1997. Consumer protections 
will remain the same as the first year: customers dissatisfied with the program can go back to Bay 
State and will be subject to potential shut off only for nonpayment of their Bay State bill. Any 
money owed to gas marketers must be collected by traditional collection procedures and cannot be 
the basis for a service shutoff. 

Miscellaneous 

The Division also intervened on behalf of Massachusetts consumers in various not rate 
proceedings that could affect the rates paid by consumers and which reflect the change underway 
in the gas industry. In Colonial Gas Company/Distrigas Proposal (DPU97-49), the Division 
opposed a joint venture proposed by Colonial Gas Company, the local distribution company 
serving the Lowell and Cape Cod areas, and Distrigas of Massachusetts, a wholesale supplier of 
liquified natural gas from its storage facilities in the Boston area. Under the proposal, Distrigas 
would lease a portion of Colonial's LNG storage facility in Tweksbury at cost and share with 
Colonial any profits it made on sales from that facility. The Division opposed the arrangement 
because, unlike the current treatment of profits from off-system sales from the Tweksbury facility. 
Colonial's customers would not benefit under the proposed arrangement. Similarly, in Hopkinton 
LNG (FERC 97-156-000), the Division intervened in a proceeding before the Federal Energy 
Regulatory Commission concerning a proposal by Hopkington LNG, an affiliate of 
Commonwealth Gas Company, under which it would sell capacity in its LNG storage tank that 
was not being used by it affiliate and keep the proceeds of such sales. We opposed the proposal on 
the ground that the facility was built to serve Commonwealth Gas Company customers and 
because under the existing terms of the agreement with Hopkington LNG Commonwealth Gas 
Company had an exclusive right to all of the capacity, its customers were entitled to any profits 
from any sales. Both cases were pending at the close of the fiscal year. 

TELEPHONE MATTERS 

Massachusetts New Area Code (DPU 96-61) The Division intervened and participated in a DPU 
investigation concerning how to address the depletion of available numbers for use in the 
geographic areas presently included in the 617 and 508 area codes. Following active participation 
in hearings during October, the Division filed briefs in November supporting the creation of two 
new area codes by dividing each of areas covered by the existing 617 and 508 area codes into two 
new areas codes. The Division argued that the this approach ~ a geographic split ~ was the 
preferable approach as it was the only approach that would allow consumers to continue to place 
calls by dialing only seven, instead often or eleven digits. In a decision issued in January 1997, 
the DPU adopted the Division's position. Parties filed motions for clarification and 
reconsideration in January. The DPU issued its rulings on the motions in April and May. 



194 



Implementation of the Geographic Split Plan will begin in September 1997 and will be completed 
on May 1, 1998. 

MCI Relay Service D.P. U. 96-118 Subsequent to receiving complaints from four disability rights 
advocacy groups regarding the quality of the "relay service" available for communications to and 
from deaf and hard of hearing consumers, the Division working with the Attorney General's 
Disability Rights Project advised the group how to petition for a DPU investigation and then 
intervened in the proceeding investigation that was subsequently initiated. At the close of the 
fiscal year, the DPU had yet taken any formal action on the groups' petition. 

NYNEX - Second Annual Price Caps Compliance Filing - (DPU 96-68) On September 12, 
1996, NYNEX filed its second annual price caps compliance filing reducing its overall rates by 
$29.6 million. Parties including the Office of the Attorney General filed briefs in January 1997, 
and the Department issued its decision in April 1997, implementing the proposed decrease in rates. 

NYNEX - Compliance with the 1996 Telecommunications Act's 14-point Local Competition 
Checklist - (DPU 97-38) On March 21, 1997, the DPU opened an investigation into the question 
of NYNEX's compliance with the 14 point checklist prescribed in the Telecommunication Act of 
1 996 as a prerequisite for local phone companies to enter the long distance market. The Division 
intervened on behalf of consumers and at the close of the fiscal year was preparing a brief setting 
forth its position on how the DPU should proceed to determine whether the check list had been 
satisfied. 

NYNEX - IntraLATA Presubscription - (DPU 96-1 18) On October 30, 1997, NYNEX filed with 
DPU a plan to allow its customers to choose a "primary"or "preferred inter-exchange carrier" 
("PIC") as the carrier over whose lines any intraLATA toll calls should be directed, automatically, 
i.e., carriers to which intraLATA calls are directed --just like long distance calls ("interLATA" 
calls) - without dialing any special access codes. The Division intervened on behalf of consumers 
and participated in the public and evidentiary hearings held in regard to the "intraLATA 
presubscription"proposal. In briefs filed in April 1997, the Division urged the DPU to reject 
NYNEX's proposed $5.00 charge for switching PICs because it was not supported by any cost 
data. In its May 28, 1997, decision, the DPU agreed that NYNEX had not supported its proposed 
charge but allowed it an opportunity to file a supporting study in the future. 

NYNEX- increasing 10(^ local coin rate to 25<f: - (DPU 97-18) In January 1997, NYNEX filed a 
proposal with the DPU to raise the initial local coin rate from 100 to 250, which it claimed was 
required under the terms of the 1996 Federal Telecommunications Act. The Division urged the 
DPU to reject NYNEX's proposal, arguing that under the Act no increase could be allowed until 
NYNEX first eliminated approximately $32 million in subsidies to pay phone rates collected in 
other Massachusetts rates. In April the DPU issued an order allowing the rate to increase to 250, 
but also requiring that NYNEX remove the $32 million-plus subsidy retroactively from its 
Massachusetts rates in its upcoming annual price caps compliance filing. 

NYNEX - Annual Price Caps Compliance Filing - (DPU 97-67) On June 9, 1997 NYNEX filed 
its third annual price caps compliance filing with the DPU proposing to reduce residential rates by 



195 



$49.9 million and business rates by $15.2 million, an overall rate reduction of $65.1 million. The 
Attorney General has intervened in the Investigation. 

NYNEX- Quality of Telephone Service in the Mission Hill Area of Boston - (DPU96-30) On 
February 12, 1996 twenty-nine customers of NYNEX filed a petition with the DPU requesting an 
investigation into NYNEX's quality of service. The complaint was filed as a result of years of 
poor quality service and a week long outage affecting 293 customers in the Mission Hill area. The 
Division intervened and was an active participant in the public and evidentiary hearings as well as 
filed initial and reply briefs. The Division argued that the extended outage suffered by the 
residents and businesses was evidence of a need for a complete overhaul of NYNEX's distribution 
cables, feeder cables and ancillary equipment in Mission Hill as well as for formal and meaningful 
emergency response plan for NYNEX to address future major service outages in the 
Commonwealth. The case was pending at the end of the fiscal year. 

Establishment of Discounts on Massachusetts Telecommunications Services Provided to Schools 
and Libraries, pursuant to Section 254(h)(1)(B) of the Telecommunications Act of 1996 (DPU97- 
68) On May 8, 1997 the Federal Communications Commission, pursuant to the 
Telecommunications Act of 1996, established discounts on certain interstate telecommunications 
and information services to ensure that eligible nonprofit elementary schools, secondary schools 
and libraries have affordable access to such services. In order for Massachusetts schools and 
libraries to become eligible for these federally firnded interstate discounts, the DPU must adopt 
intrastate discounts that are at least equal to the FCC's interstate discounts. On June 30, 1997 the 
DPU opened its investigation to establish intrastate telecommunications discounts and proposed to 
provide intrastate discounts equal to those of the FCC. At the close of the fiscal year, the Division 
was preparing to file comments on behalf of Massachusetts consumers. 



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CONSUMER COMPLAINT AND INFORMATION SECTION 

The Attorney General's Consumer Complaint and Information Section ("CCIS") provides 
services to individual consumers by responding to thousands of consumer complaints and requests 
for information on consumer issues and referrals on the Attorney General's consumer "hotline"; 
through a voluntary mediation program aimed at resolving consumer complaints against 
businesses which obtains refunds and other savings for individual consumers; by educating the 
public through developing and distributing educational materials and participating in consumer 
education initiatives; by responding to public records requests; and by identifying potential trends 
of unfair or deceptive trade practices for further investigation or possible prosecution by the 
Consumer Protection and Antitrust Division. 

For the period July 1, 1996, through June 31, 1997, CCIS received and responded to 
17,837 written complaints and other correspondence; responded to 126^56 telephone calls to 
the Attorney General's consumer hotline; mailed consumer educational brochures or 
pamphlets to 5,159 consumers; opened 2,602 consumer complaints for mediation, and closed 
4,656 complaints, recovering $492,285 in refunds or other savings for individual consumers. 

CCIS' major initiative for fiscal year 1997, was the further development and 
implementation of the Consumer Complaint Tracking System ("CCTS"). CCTS, a database 
designed specifically for CCIS, allows the Section to perform its hotline, mediation, education, 
and trend identification responsibilities in the most efficient manner possible. 

CCTS allows staff to respond more efficiently to consumer inquiries and enter consumer 
or merchant information on the hotline and automatically generates cover letters and complaint 
forms with specific complaint numbers which are used in the fiiture to access the consumer's 
information. It allows staff to scan consumer complaint forms and correspondence into the 
database using an imaging software, so that the actual image of the complaint appears on the 
computer screen; to access information and make referrals to other agencies more efficiently by 
listing federal and state agencies' and local consumer programs' phone numbers; to quickly and 
easily retrieve complaint records filed against a particular business; to respond to public records 
requests by quickly providing the number of complaints filed against a particular business with a 
breakdown by location; to research complaints involving particular industries; and to identify 
patterns or trends of unfair or deceptive practices. 

As a result of the Section's focus on CCTS in fiscal year 1997, a technical support staff 
member was hired to implement the installation of CCTS in the nineteen (19) local consumer 
programs. Once the local consumer programs are linked, data from the individual programs will 
be downloaded directly to the Attorney General's database on a daily basis, thereby insuring the 
integrity of the information provided to the public and the press concerning the number of 
complaints on file against a particular business. 

A final goal of the CCTS implementation project was reached in fiscal year 1997: 
utilization of the management report function. Extensive efforts were made to identify 
programming problems with the management report generating fianction of CCTS. As the result of 



197 



this focus, monthly, quarterly, six-month and annual reports are run containing comprehensive 
information, such as the number calls to the hotline, the number of referrals to 
local consumer programs and state or federal agencies, the number of complaints by business and 
complaint type, the total amount of complaints mediated and money recovered for consumers; the 
merchants with the highest number of complaints by business and complaint type or the 
geographic location of the complaining consumer. 

The Section continued to focus on consumer education initiatives; three frequently 
distributed consumer educational pamphlets were updated and rewritten; a pamphlet detailing 
important changes to the regulations governing septic systems was written and distributed in 
cooperation with the MA Association of Realtors. 

CCIS staff conducted or participated in numerous community based consumer education 
initiatives in which they answered questions and distributed consumer educational materials and 
consumer complaint forms. These consumer education initiatives took place, in cooperation with 
the MBTA and the Fleet Center, at the North Station Commuter Rail; at the Attorney General's 
Consumer University; at three college campuses, a population from which we receive numerous 
complaints, but haven't historically provided outreach to; at the Attorney General's educational 
booth at "The Big E," the Eastern States Fair; and at AARP's telemarketing conference at Fanuel 
Hall. 

The Section maintained the increase in the number of interns participating in the 
undergraduate mediation internship program. Due to the increase, the complaint assignment 
process was expedited, thereby decreasing the waiting period for consumers. Lastly, CCIS staff 
provided staffing and training to the AG Elder Hotline and participated in Bureau and Office-wide 
initiatives including the Diversity Committee, the Language and Literature Committee, the 
National Association of Attorneys General Telemarketing Group, and the Supreme Judicial 
Court's Racial and Ethnic Bias Committee. As a result of the Section's participation in the 
Telemarketing Group, the Federal Trade Commission's telemarketing complaint database was 
installed in the Section. Data from telemarketing complaints received by this office is entered into 
the national database, and information regarding telemarketing companies about which 
Massachusetts consumers have complained is retrieved from the database. The information 
contained in the database is accessed by federal and state authorities throughout the U.S.A. for law 
enforcement purposes. 



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MEDIATION SERVICES DEPARTMENT 

The OAG Mediation Services Department is located in the Consumer Protection Division 
of the Public Protection Bureau. It consists of 6 staff, 1 Director, 1 Deputy Director, 1 
Administrative Assistant and 3 Regional Coordinators. The Face to Face Mediation Program 
(FTFMP), the Student Conflict Resolution Experts Program (SCORE) and the Conflict 
Intervention Team (CIT) are the three major programs overseen by MSD. The MSD Director 
and Deputy Director represent the OAG in public events, trainings, conferences, and workshops 
and oversee grant and program administration for 35 mediation programs (23 SCORE programs 
and 3 affiliates, 8 Face to Face Mediation Programs and the Conflict Intervention Team). Three 
Regional SCORE Coordinators also represent the OAG at public events and provide technical 
assistance, training and supervision to SCORE programs in the Northeast, Central & Boston and 
Western MA regions. The Director and Deputy Director provide coverage to SCORE programs in 
the Southeastern region that are not served by a Regional Coordinator. 

Face to Face Mediation Programs 

In 1984, the OAG initiated 3 pilot Face-to-Face Mediation Programs (FTFMPs) in 
Worcester, Somerville and Haverhill. These pilot programs were initiated to provide consumers 
left with unresolved complaints in spite of assistance provided by an OAG affiliated local 
consumer program (LCP) with an alternative to court action. Unlike the telephone and letter- 
writing mediation efforts provided by the LCPs, the FTFMP recruits and trains volunteer 
mediators to facilitate face-to-face mediation sessions to resolve consumer disputes. Following 
the success of the 3 pilot programs FTFMP service was initiated in Brockton, Hyannis, 
Fitchburg, Springfield and Lowell and expanded to serve consumers at small claims court. 

Courts, police, community agencies and LCPs refer consumer disputes to FTFMPs for 
mediation services. FTFMPs are part of statewide network of 30 community-court-based 
volunteer mediation programs. Citizens from all walks of life are recruited and trained by the 
FTFMPs to serve their communities as volunteer mediators. 

During FY 97, the 8 FTFMPs served 7,468 individual consumers, convened 1,694 
mediations with 77% reaching a voluntary resolution. As a result of these mediated agreements, a 
total of $854,447 dollars and services valued at $204,383 were returned to consumers. 

FTFMP Annual Site Visits 

During the three month period of September 1996 through November 1996, MSD 
conducted aimual site visits with each of the 8 FTFMPs. In the course of these visits, MSD staff 
met with and administered site visit questionnaires to FTFMP Directors, volimteer mediators and 
clerk-magistrates. Additionally, MSD staff monitored the mediation procedures used by the 
FTFMPs in small claims court and observed FTFMP mediation sessions. 

Consumers interviewed at small claims court following mediation, expressed their 
satisfaction and enthusiasm for the services rendered by the FTFMPs. At courts served by 



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FTFMPs , clerk-magistrates volunteered their appreciation to the OAG for the valuable services 
provided by the FTFMPs. 

Student Conflict Resolution Experts 

SCORE is an award winning, innovative and comprehensive peer mediation program. In 
the SCORE model, an adult coordinator hired by the SCORE grant recipient (a community 
mediation program) administers the SCORE program at the school. The community mediation 
program provides local supervision and expertise to the SCORE coordinator, assists in the training 
of student mediators and works jointly with the school to develop a quality student-centered peer 
mediation program. 

In eight short years, SCORE has initiated 38 peer mediation programs in schools 
throughout Massachusetts. Last year, 3 new SCORE programs were implemented in Springfield 
and Lynn and 3 sister programs in Springfield were welcomed as SCORE affiliates. Today, 26 
schools in 1 8 Massachusetts communities receive SCORE grants or technical support to operate 
peer mediation programs. From September 1996 through June 1997, SCORE responded to 3,149 
peer conflicts and convened 2,191 peer mediations with 97% reaching a voluntary mediated 
agreement to end the conflict. 

SCORE Annual Site Visits 

Annual site visits were held at 21 of the 23 SCORE programs during the last quarter of 
the school year (April-June). Annual site visits enable MSD to conduct field evaluations, facilitate 
needed program improvements, troubleshoot problems and interact with local school officials. 
During the annual site visit program evaluation questionnaires are administered to SCORE 
coordinators, school principals, student mediators and SCORE grant recipients. Information 
gathered from the annual visits and program questionnaires is used to develop program priorities 
for SCORE in the new school year. 

The Conflict Intervention Team 

Ready to mobilize at a moments notice in response to school crises which are often ftieled 
by racial tensions, the CIT provides a rapid response to schools in need of emergency mediation 
services. A roster of specially trained community mediators stands ready to mediate on an "on 
call" basis. In most instances, MSD coordinates and oversees the mediators serving on CIT during 
an intervention. MSD staff coordinated 6 of the 7 interventions held last year. 

During the 96'-97' school year, 7 interventions were held at schools in Boston, Holyoke, 
Lynn, Worcester, Marlborough and Amesbury and 1 conflict assessment was conducted in 
Weymouth. Sixty-one mediators served on CIT and conducted 274 intake interviews, 16 
mediations and 5 group facilitations. As a result of CIT assistance, students in each of the 7 
schools, were able to get past the anger and communicate with each other, reduce tensions and 
exchange ideas to improve school safety and climate. A brief summary report on CIT activities for 
the 96'-97' school year is attached. 



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Trainings 

Last year 310 student mediators were trained by SCORE programs and MSD staff led 
9 of the 18 SCORE trainings held during the school year. Other trainings conducted by MSD 
included a conflict resolution training for youth in Chelsea at the SNI Jobs for Youth Program, an 
adult mediation training for the Brockton FTFMP, a two-day training for OAG/CCIS complaint 
mediators and a four-day advanced mediation training for FAA mediators. 

Troubleshooting 

In FY97, MSD responded to problems in existing SCORE programs in Springfield, 
Boston, Taunton, Dartmouth and Haverhill. 

Springfield: In December 1995 MSD initiated negotiations with the Springfield Public School 
System to keep SCORE a viable program in Springfield. Negotiations were completed in October 
1996 and resulted in some changes for SCORE in Springfield. The SCORE programs at Central 
and Putnam High Schools were converted into SCORE affiliates and the Chestnut St. Middle 
School peer mediation program was converted into a SCORE program. SCORE affiliate status 
was also extended to include the peer mediation program at Commerce High School. 

Dartmouth and Taunton: In June 1997, during the annual site visit at Dartmouth and Taunton 
High Schools MSD was pleased to verify that the strong working relationship previously enjoyed 
by these schools and their SCORE grant recipient had been restored to good working order. 

Haverhill: MSD was alerted by Haverhill High School (HHS) and the SCORE grant recipient, 
Haverhill Community Action, that school budget constraints were jeopardizing matching funds for 
SCORE in 97'-98'. Despite the support for SCORE in Haverhill and the efforts of HHS, Haverhill 
Community Action and school officials, it remains doubtful that matching funds for 97'-98' will 
materialize. A final decision about HHS SCORE funding is expected in late August. MSD will 
refer to the SCORE waiting list if SCORE is not continued at HHS in 97'-98'. 

Boston: Despite the overwhelming support for SCORE in Boston, school budget constraints made 
it difficult for matching funds to be allocated to the 6 Boston SCORE programs. After much 
effort, five of the six Boston schools received matching funds for SCORE in 97'-98'. Madison 
Park High School was unable to recover from the loss of matching funds from its corporate 
sponsor, Blue Cross/Blue Shield, and could not secure funds needed to continue with SCORE in 
97-98'. 

Regional Coordinator Reports 

For comprehensive look at the Northeast and Western MA regions, please refer to the 
attached Regional Coordinator Reports from Sandra Washburn, and Steve Lilly- Weber. Susie 
Wong, Central and Boston Regional Coordinator, is recovering from surgery and will provide her 
report upon her return. 



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Innovations 

In 1994, 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 $100,000 award was used to 
disseminate information nationally about SCORE and CIT and to encourage replication of 
these programs by other Attorneys General and State Departments of Education. 

During FY 97, MSD expended the remainder of the award money by completing the 
following activities: 3 SCORE/CIT replication trainings, sponsoring a statewide conference for 
Massachusetts student mediators and production of the SCORE brochure and poster. 



Kathleen Grant and Darlene Skog, traveled to Louisiana to provide a 3'/2 day intensive 
SCORE peer mediation replication training for Louisiana AAG's and selected community 
mediators. In North Carolina, a 3 day CIT replication training was conducted by Kathleen Grant 
and Melissa Brodrick for members of the North Carolina Mediator Network. Kathleen Grant also 
delivered a presentation on SCORE and CIT replication in Arizona to the Supreme Court Juvenile 
Justice Program. 

Community Outreach 

Community outreach projects in FY 97 brought MSD staff to communities in Chelsea, 
Lynn and Boston. In Lynn, Kathleen Grant and Susie Wong (OAG) continued to work with the 
members of the Lynn community to ease tensions caused by feuding gang-involved youth. In 
South Boston, Kathleen Grant joined the efforts of local community activists seeking ways to stop 
the spiral of youth suicides in South Boston's public housing projects. She and others are 
providing technical assistance for the development of a community mediation program in South 
Boston. Kathy will also assist in a mediation training being offered to adults and youths in this 
community. In Chelsea, Kathleen Grant and Alice Comack, (Somerville SCORE) conducted a 10 
hour conflict resolution training for young people involved with the Chelsea SNI Jobs for Youth 
Program. In Brockton, MSD staff continued to work with the Brockton SNI coordinator to 
stimulate interest for a SCORE program in Brockton. In Boston, Darlene Skog joined the steering 
committee of the Massachusetts Violence Prevention Task Force and Kathleen Grant continues to 
represent OAG on the SJC ADR Task Force. 

Public Events, Conferences, Workshops 

During the year, MSD staff participated in 7 public events and conducted 8 workshops at 
local, state and national conferences. MSD staff represented the OAG in Holyoke at a peer 
mediation recognition ceremony, in Quincy at the Quincy College Violence Prevention Series 
(this event was broadcast on local cable TV), in Boston at the Harvard Luncheon Series, in 
Cambridge at the Harvard Dispute Resolution Forum, at UMASS Boston teaching a class on CIT, 
on Scott Harshbarger's Issues and Answers cable show, at the Society for Professionals in 



202 



Dispute Resolution (SPIDR) National Youth Conference in California, at the MAMPP 
conference in Waltham and in Amherst at two peer mediation conferences for Western MA 
educators. MSD also delivered workshops on SCORE to professional mediators attending the 
Masters in Mediation Conference sponsored by the NE Chapter of SPIDR in Rockport , at a 
violence prevention conference sponsored by the North Shore Holocaust Center and at a Dept. of 
Justice youth gang violence prevention conference in Newport, RI. 



203 



PUBLIC PROTECTION BUREAU 
CHIEF PROSECUTOR 

The Chief Prosecutor of the Public Protection Bureau prosecutes criminally a myriad of 
crimes related to the priority areas of the Bureau, providing the unique capability of protecting the 
public through both civil and criminal enforcement mechanisms. Assistant attorneys general bring 
criminal cases in the District and Superior Courts throughout the Commonwealth as well as 
conduct ongoing investigations, all under the supervision of the Chief Prosecutor. 

Substantive target areas for a criminal focus continue to include consumer-related crimes, 
elder fraud, private insurer health care fraud, crimes upon charities, telemarketing fraud, abuse of 
disadvantaged populations by staff members, and unauthorized practice of certain professions. 
Emphasis is placed upon developing effective and ethical criminal remedies to complex crimes 
that may fall outside the ambit of fraditional law enforcement authorities. 

I. HIGHLIGHTS OF CASES PROSECUTED TO COMPLETION 
Anusavice, Gary 
Weissman, Michael 
Ghorieshi, Abbas 
Johnson, Keith 

Massdent Management Corporation d/b/a 
DDS Dental Center 

Health Care Fraud G.L c. 17511/Larceny. 

The principal dentist and a periodontist of a dental center were indicted and convicted of 
private insurer health care fraud. More than two hundred complaints were registered with the 
Office of the Attorney General and the Division of Registration. 

The defendants Weissman and Anusavice pleaded guilty to criminal indictments alleging health 
care fraud and signed a civil consent agreement as part of a global settlement of the complaints 
lodged against them. In the criminal matter defendants paid $1 70,000 forthwith to a fimd for all 
DDS victims (not just those involved in the criminal matter) and were placed on criminal 
probation and probation with the Board of Regisfration in Dentistry for five years. Defendants lost 
their dental licenses for five years and were ordered to perform three hundred hours of community 
service. In the civil settlement the defendants were ordered to pay an additional $75,000 to CMHC 
insurance and an additional $55,000 to the consumer fund. After their five-year license loss the 
defendants will be on probation with the Board of Registration in Dentistry requiring ethical, 
educational and substance abuse training. 

Abbas Ghorieshi lost his license to practice dentistry for one year and had to pay 
approximately 5100,000 of the amount assessed against Weissman and Anusavice. 



204 



Austin, Arthur 
Larceny From an Elder 

An insurance agent and financial planner who bilked three elderly female clients out of 
their life-savings by promising to safely invest it for them was indicted and convicted of larceny. 
After a trial, a Middlesex County Superior Court jury convicted the defendant of three counts of 
larceny from a person older than sixty-five years of age. The defendant was sentenced to five 
years incarceration with probation to follow. Probation conditions include restitution of $173,000 
and alcohol counseling. 

Crafts, Frederick 
Fiduciary Embezzlement 

A lawyer who bilked four estates out of significant sums of money and a broker out of his 
commission was indicted and convicted. The thefts were more than $600,000. The defendant was 
sentenced to serve two years in the House of Correction with a four to a six-year state prison 
sentence suspended for five years. Restimtion of $630,000 was also ordered. 

Zammuto, PauP 
Assault and Battery on a Person with a Disability 

The defendant, who was a caretaker at a DMR facility pleaded guilty to assaulting a 
patient at a DMR facility. The victim suffered severe facial bruises. Over the Commonwealth's 
objection, the defendant's case was continued without a finding for eighteen months with 
supervised probation. A term of the defendant's probation is that he is barred from working in the 
health care field or in any health care facility. If the defendant violates his probation, he will be 
incarcerated for six months. 

Nguyen, Xuan Vinh 
Assault and Battery with a Dangerous Weapon/ Unauthorized Practice of Medicine 

The defendant was observed by a neighbor performing cosmetic plastic surgery on a 
woman's eyelids in a residential apartment. The defendant was not a doctor. Although the 
Commonwealth recommended jail time, a District Court Judge placed the defendant on pre-trial 
probation. 

Gusatavis, Carla. 
Unauthorized Practice of Nursing. 

The defendant admitted to sufficient facts in district court to practicing nursing without 
a license after this case was referred to this office from the Board of Regisfration in Nursing. 

Vigeant, Richard 
Home Contractor Larceny/Unregistered Home Contractor 

The defendant pleaded guilty to multiple charges of larceny stemming from his home 
confracting practices. The Commonwealth moved to join the defendant's charges pending several 
different district courts and successfully had his bail revoked due to new charges being lodged 
against the defendant. The defendant was sentenced to two and one half years in the house of 
correction with nine months to serve. The defendant paid $7,650 in restitution at sentencing and 
was ordered to undergo drug and alcohol counseling. 



205 



Lebrun, Joseph 
Ethnic Affinity Fraud 

A Maiden man was prosecuted for preying on fellow members of the Haitian community 
with an investment scam. The defendant fraudulently promised high returns on investments in 
his various businesses. The defendant pleaded guilty and received a suspended sentence of two 
years in the house of correction and was placed on probation for ten years. The defendant was 
placed on electronic ankle bracelet monitoring for two and was ordered to pay $1 70,000 in 
restitution. 

II. Cases Closed by Means Other Than Criminal Prosecution. 

The chief prosecutor of the Public Protection bureau uses a variety of means to resolve 
cases short of criminal prosecution. Investigations led to civil settlements which included 
injunctive relief and monetary damage payments. Other cases were terminated by civil assurances 
of discontinuance. When appropriate, advisories are published to educate consumers regarding 
areas where they could be victimized and to guide businesses from practices that could violate 
criminal statutes. 

Joint criminal investigations with the United States Attorney's Office in the areas of 
alleged telemarketing, fraudulent charitable solicitation and excessive force by law enforcement 
personnel are ongoing. 

Cases were jointly investigated with and referred to other agencies when appropriate. In 
this year the chief prosecutor worked with the Division of Registration, Board of Medicine, 
Secretary of States Office, Department of Revenue, United States Attorney's Office, Federal 
Bureau of Investigation, Internal Revenue Service, Postal Inspectors and several state's Attorneys 
General. 

III. Referrals Evaluated 

The chief prosecutor evaluated one hundred and nine complaints during this year. The 
complaints came from other divisions within the Office of the Attorney General, police 
departments, outside agencies, attorneys and private citizens. Most referrals require initial 
investigation. 

IV. Other Activities 

Chief prosecutor Howard Wise acts in an advisory capacity to all Public Protection 
Bureau personnel including assistant attorneys general and CID investigators. Training was held 
in search and seizure, joint criminal and civil investigations and various facets of criminal 
procedure. The division also hosted a national round table discussion and training session in 
health care fraud put on by the National Association of Attorneys General. Educational materials 
were purchased and distributed as part of the continuing education on criminal procedure. The 
Criminal Resource Library now contains criminal law books and a bank of sample memoranda and 
motions. Training in criminal investigative techniques continued for CID investigators. 

Review of proposed legislation and court initiatives was a priority. The chief prosecutor 
provided review and input on diverse topics including proposed legislation on home contractor 



206 



registration and the Model Rules of Professional Conduct. The chief prosecutor was also selected 
to coauthor a chapter of the upcoming MCLE publication, Massachusetts Superior Court Criminal 
Practice Manual. 

The Bureau continues to send assistant attorneys general to the District Court rotation 
program which enables them to gain valuable courtroom experience to bring back to the criminal 
cases in the bureau or to expand their horizons in the Safe Neighborhood Initiative. 



207 



CIVIL INVESTIGATION DIVISION 

The Civil Investigation Division conducts investigations primarily for divisions within 
the Public Protection and Government Bureaus. In addition, CID also investigates cases or matters 
within the Family and Community Crimes and Business and Labor Protection Bureaus and, on 
occasion, for the Executive Bureau, or in conjunction with the Criminal Bureau. 

The major duties of Division investigators are: locating and interviewing victims, 
witnesses, subjects and others; obtaining and reviewing documentary evidence from numerous 
sources including individuals, corporations, and federal, state, county and municipal agencies; 
conducting surveillance, background checks and asset checks; analyzing financial records and 
performing other forensic accounting frinctions; and, testifying before the Grand Jury and at trial. 

In fiscal year 1997, the Division initiated 479 investigations in the following major areas: 

PUBLIC PROTECTION BUREAU 

Consumer Protection and Antitrust 

Investigators continued to perform their traditional role by assisting the office in bringing 
G.L. c. 93A enforcement actions against businesses and individuals in major consumer areas such 
as automobile sales and repair, credit repair services, travel services, health spas, retail sales, 
computer scams, advance fee loan scams, immigration services and employment schemes. Areas 
also included numerous issues affecting the elderly and vulnerable populations such as the 
unauthorized practice of law, investment and home improvement scams. 

The Division also initiated several investigations and surveys to determine compliance 
with existing laws and regulations pertaining to numerous consumer areas. Some were multi-state 
and nationwide and included areas such as funeral homes, fraudulent sweepstakes promotions and 
telemarketing scams. Investigators worked closely with other state attorneys general's offices, the 
U.S. Postal Inspection Service and investigators with the Federal Trade Commission. 

Additional areas affected underage consimiers including the sales of fake sports 
memorabilia, the sales of cigarettes and keno tickets and the production and sales of false 
identification cards to be used for illegal purchases and consumption of alcohol and cigarettes. 
Civil Rights/Liberties 

The Division investigated "hate crimes," allegations of police misconduct and other 
violations of the Massachusetts Civil Rights Act. Investigations were also conducted into 
allegations of discriminatory housing and employment practices, as well as investigations to 
determine compliance with the rules and regulations established by the Americans with 
Disabilities Act and the Architectural Access Board. Division staff interviewed victims, 
witnesses and, where appropriate, subjects of such investigations. Investigators obtained and 
reviewed police reports, court documents and other available evidence. 



208 



Public Charities 

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

Regulated Industries 

Investigators continued to work with PPB and RID attorneys to review and investigate 
businesses and organizations that withheld from employees contributions for health insurance 
premiums, but failed to actually purchase the health insurance coverage for employees and their 
families. Other cases investigated included unlawful sales practices also known as "churning," the 
sale of fraudulent or costly life insurance and other policies to the elderly. 
Bureau Prosecutor 

Investigators worked with the Bureau prosecutor on numerous cases which resulted in 
indictments against individuals for violations of the Commonwealth's criminal laws. Cases 
included larceny against the elderly and vulnerable by financial advisers, attorneys, home 
improvement contractors and auto dealers. Cases also involved investigations relative to the 
imlicensed practice of medical professions, health care fraud, illegal charitable ftmdraisers and 
embezzlement from non-profit organizations. 

The Division also continued to play a key role in the Human Services Institutional Abuse 
project within PPB. Investigators interviewed victims and witnesses and collected documentary 
evidence. 

GOVERNMENT BUREAU 
Environmental Protection 

The Division's role in EPD cases primarily involved locating and identifying assets of 
potentially responsible parties liable for paying costs incurred by the Commonwealth in the clean- 
up of polluted or hazardous waste sites. Investigators also located former employees and officers 
of defunct companies responsible in part for such violations, and reviewed, evaluated and analyzed 
financial documents and prepared ability to pay analyses. 

Trial 

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



209 



CRIMINAL BUREAU 

Safe Neighborhood Initiative (SND 

The Division continued its assistance to the office's Abandoned Housing Recovery 
Project by conducting research on target properties primarily to determine the status of ownership 
and existence of encumbrances of the buildings, and also in some instances, assisted in inspecting 
properties scheduled for renovation. 

BUSINESS & LABOR PROTECTION BUREAU 

Insurance Fraud Division 

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

Investigators worked with the Insurance Fraud Bureau of Massachusetts in a joint effort 
to investigate instances of premium avoidance by employers attempting to defraud insurers of 
premiums owed for workers' compensation coverage. 

Investigators also participated in the efforts to reform the disability pension system. 



210 



STATISTICS 

The Division opened 479 investigations in Fiscal Year 1997, with 357 investigations 
ongoing as of June 30, 1997. Case distribution by division and/or bureau is as follows: 



DIVISION/BUREAU 


OPENED 
DURING FY '97 


ONGOING AS 

OF 6/30/97 


Consumer Protection/Antitrust 


49 


51 


Civil Rights 


16 


16 


Public Charities 


11 


10 


Regulated Industries 


6 


5 


PPB/Criminal 


35 


36 


Government 


3 


1 


Environmental Protection 


29 


24 


Trial 


321 


203 


Family & Community Crimes 





1 


Insurance Fraud 


9 


10 


TOTAL 


479 


357 



211 



GOVERNMENT BUREAU 

The Government Bureau provides representation for the Commonweahh and its agencies \ 
and officials in all types of civil litigation, and for employees of the Commonwealth with respect j 
to certain civil claims made against them resulting from the performance of their duties. The 
Attorney General's environmental enforcement function also falls to the Government Bureau. 

A major priority of the Bureau is improving the functions of government. Many of the 
cases and initiatives discussed below reflect that priority. In addition, bureau attorneys have 
advised agencies in numerous ways how to reduce accidents and legal errors, thereby eliminating 
liability and injury to the public. The Bureau also provides general 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 urmecessary litigation. As in j 
previous years, the Bureau in fiscal year 1 997 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 November, 1997. In May, 1997, we published the seventh issue of the Agency Counsel 
Newsletter, containing reports on legal developments in areas of relevance to agencies of the 
Commonwealth generally. 

The Government Bureau consists of an Administrative Law Division, a Trial Division 
and an Environmental Protection Division. During fiscal year 1997, several attorneys were 
assigned permanently to work in more than one division, 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 to 
the full range of cases the divisions handle. In addition, a number of particularly complex and 
significant cases were handled by teams assigned to multiple divisions. 

All three divisions 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 disputes 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. 

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. There is 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 



212 



agencies. The organization of these divisions within one bureau promotes the sharing of resources 
and expertise, and the coordination of positions taken in cases. In addition, this organization 
makes the substantive expertise of the Environmental Protection Division more readily available to 
other agencies in the environmental matters. 

AFFIRMATIVE LITIGATION 

Tobacco litigation - The Government Bureau, in conjunction with the Consumer 
Protection and Antitrust Division, continued to pursue its landmark lawsuit against the five major 
cigarette manufacturers and several related entities to recover the Commonwealth's health care and 
other expenditures for smoking-related diseases, including expenditures in the state Medicaid 
program. Commonwealth v. Philip Morris, Inc., et al. The suit also seeks injunctive relief to, 
among other things, compel the disclosure of cigarette industry research on smoking, health and 
addiction and to require cigarette industry funding of a "corrective" public education campaign 
about smoking, health and addiction. 

In an historic agreement reached in March 1997, one of the defendants, the Liggett 
Group, agreed to pay Massachusetts and other settling states 25% of its pretax profits for the next 
25 years, to place prominent warnings on all of its products and in its advertising stating that 
smoking is addictive, and to end marketing practices aimed at children. In addition, Liggett agreed 
to assist Massachusetts and other states in their cases against the cigarette industry by turning over 
internal company documents and making Liggett employees available to assist the states in these 
cases. The 1997 agreement expanded upon the agreement Liggett reached v^th the 
Commonwealth and four other states in March 1 996. 

In June 1997, an agreement in principle was reached to settle the cases filed by the 
Commonwealth and other states against the other four cigarette companies, Philip Morris, Inc., 
R.J. Reynolds Tobacco Company, Brown and Williamson Tobacco Corporation and Lorillard 
Tobacco Company. Among other things, the agreement in principle includes: 

-Tobacco Industry payment of $368.5 billion in the first 25 years of the agreement for 

health care costs and federal, state and local enforcement of the agreement and youth 

access laws; 

-Full federal authority to regulate nicotine as a drug; 

-A 500 million dollar per year counter-advertising campaign, modeled after the one in 

Massachusetts to be paid for by the tobacco industry; 

-A national youth smoking reduction goal to cut youth smoking in half with seven years 

with an $80 million dollar penalty for every percentage point the industry falls short of 

that goal; and 

-Full industry funding of state and privately run smoking cessation programs. 

The agreement is intended to resolve all of the pending Medicaid cost recovery actions 
filed by attorneys general against the tobacco industry, to implement a significant structural 
reformation of the tobacco industry and to expand the scope federal and state regulation of that 



213 



industry. To be implemented, it must be enacted into law by Congress and signed by the 
President. 

In addition to the tobacco litigation, the Government Bureau maintained an active docket 
of affirmative litigation in fiscal year 1997 to assert the interests of its state agency clients. In 
Commonwealth v. Federal Deposit Insurance Corporation, the United States Court of Appeals for 
the First Circuit ruled that the Commonwealth is precluded by federal law from filing deposit 
insurance claims with the FDIC on behalf of the owners of bank deposits that are deemed 
abandoned under state law, thus precluding the state Treasurer's claims for millions of dollars in 
abandoned deposits. In Michigan, et al, v. U.S. Department of Energy, et al, the Commonwealth 
joined other states in a petition filed in the U.S. Court of Appeals for the District of Columbia 
Circuit to enforce that Court's earlier order requiring the U.S. Department of Energy to accept 
high-level nuclear waste, currently stored on site at nuclear reactors throughout the nation, for 
storage in a central repository by 1998. In Commonwealth v. Markings, Inc., the Bureau obtained 
a consent judgment from a Highway Department contractor which, among other things, required 
payment of a $15,000 civil penalty to the Commonwealth for breach of contract. In 
Commonwealth v. Ruggles Center Joint Venture, et al. the Bureau filed an action for damages 
against the owner, general contractor and various other parties to recover the Commonwealth's 
losses in connection with indoor air quality problems that required the Registry of Motor Vehicles 
to vacate its headquarters at Ruggles Center. In Metropolitan District Commission v. Andrew 
Chris to Engineers, Inc., the Bureau brought suit against subconfractors on the Lynn way 
reconstruction alleged to be responsible for rainwater runoff that flooded a large number of homes 
and business in Lynn and Swampscott. In Massachusetts Highway Department v. Smith et al. , the 
Bureau filed an action to enforce a confract requiring a former owner of a parcel taken for the 
Central Artery project to indemnify the Commonwealth for the cost of removing hazardous 
substances from the property. In Commonwealth v. TLT Construction Co., the Bureau continued 
to pursue an action filed on behalf of the Trial Court and the Division of Capital Planning and 
Operations to recover damages from the contractor, architect and others alleged to be responsible 
for defects in the design and performance of the renovation of the exterior of the Suffolk County 
Courthouse. In addition, several actions were filed on behalf of the Commissioner of Insurance to 
compel various individuals and companies to provide documents and testimony related to the 
Commissioner's investigation of Electric Mutual Life Insurance Company's move to Bermuda. 

Central Artery Project - In 1 996, the legislature created the Cenfral Artery Oversight 
Coordination Commission, consisfing of the Attorney General, the State Auditor and the Inspector 
General, and provided certain additional resources for oversight of the Cenfral Artery Project. The 
Government Bureau has been and will be an active participant in the Attorney General's future 
work in this area. 



214 



ADMINISTRATIVE LAW DIVISION 

The Administrative Law Division has three functions: (1) defense of lawsuits against 
state officials and agencies concerning the legality of governmental actions, particularly where 
injunctive or declaratory relief is sought; (2) legal review of all newly enacted town by-laws; and 
(3) preparation of legal opinions for constitutional officers, heads of agencies, and certain other 
officials concerning issues arising from the performance of their official duties. During fiscal year 
1997, significant events occurred in each of these areas. 

During fiscal year 1997, the Division opened 1258 cases and closed 1 199 cases. At the 
end of the fiscal year, 2600 cases were pending. Cases handled by Division attorneys resulted in 
35 reported decisions of the Supreme Judicial Court, 15 reported decisions of the Massachusetts 
Appeals Court, 3 reported decisions of the United States Court of Appeals for the First Circuit, and 
8 reported decisions of the United States District Court for the District of Massachusetts. As well. 
Division attorneys were involved in many cases in those courts and in the state trial courts that 
resulted in unpublished decisions. 

1. Defensive Litigation 

The Division spent significant time and resources in fiscal year 1 997 defending the newly 
enacted sex offender registry statute. In one case brought by a juvenile. Doe v. Weld , the United 
States District Court for the District of Massachusetts denied plaintiffs motion to enjoin 
enforcement of the statute, holding that the statute is a non-penal regulatory measure that does not 
impose punishment on juvenile sex offenders adjudicated delinquent before passage of this law. 
In Doe V. Attorney General fNo. \) . the Supreme Judicial Court ruled that specific provisions of 
the sex offender registry statute apply to require the disclosure of certain juvenile court records, 
notwithstanding the confidentiality generally afforded to juvenile court records under the youthful 
offender act. However, in another case. Doe v. Attorney General rNo.2\ the Supreme Judicial 
Court upheld a preliminary injunction against the enforcement or implementation of a portion of 
the statute that directs the Criminal History Systems Board to disclose certain information about 
sex offenders to any adult who requests it. The Court held that plaintiff would likely prevail on his 
contention that that provision serves no remedial purpose and therefore imposes punishment in 
violation of the constitutional prohibitions against double jeopardy and ex post facto laws. 

During fiscal year 1997, the appellate courts decided several important welfare and 
Medicaid cases handled by Administrative Law Division attorneys. In Dowell v. Dep't of 
Transitional Assistance , the Supreme Judicial Court upheld the validity of a DTA regulation 
denying eligibility for Emergency Assistance to families who were evicted from public or 
subsidized housing for nonpayment of rent. In several appeals from administrative decisions of 
the Department of Medical Assistance- Cohen v. Comm'r of Dep't of Medical Assistance . Canter 
V. Comm'r of Public Welfare , and Tarin v. Comm'r of Dep't of Medical Assistance — the state 
appellate courts clarified the standards for determining what income and assets are "available" to 
applicants or recipients for purposes of determining their eligibility for Medicaid benefits and 
calculating the amounts of benefits, if any, they are entitled to receive. In Visiting Nurse Ass'n. 
Inc. V. Bullen . the United States Court of Appeals for the First Circuit upheld the validity, under 
the Medicaid Act, of state regulations establishing class-based rates for home health providers. 



215 



In other significant litigation involving children and families, the Supreme Judicial Court, 
in Planned Parenthood League of Massachusetts. Inc. v. Attorney General , largely upheld the state 
law concerning parental consent for abortions sought by unmarried minors. In Richardson v. 
Dep't of Revenue , the Supreme Judicial Court held that the Department correctly refused to refund 
child support payments made by a man who, at the time of the child's birth, had acknowledged his 
paternity and agreed to support the child but later determined that he was not, in fact, the child's 
father. In another child support case. Child Support Enforcement Division v. Brenckle . the 
Supreme Judicial Court held that a child support order entered by an Alaska court was enforceable 
in Massachusetts under the Uniform Interstate Family Support Act. 

The enforcement and interpretation of consent decrees also continued to generate 
significant litigation during fiscal year 1 997. In Inmates v. Sheriff of Suffolk County , the United 
States District Court for the District of Massachusetts held that the consent decree mandating 
single-celling of all but 100 cells at the Nashua Street Jail may no longer be enforced by contempt 
or specific performance but apparently may be enforced through damages. The inmates, sheriff. 
Commonwealth, and United States all appealed, and those appeals were pending at the close of 
fiscal year 1 997. In Judge Rotenberg Education Center. Inc. v. Comm'r of Dep't of Mental 
Retardation , the Supreme Judicial Court affirmed a contempt judgment, concluding that the 
Commissioner of the Department of Mental Retardation violated the provisions of a consent 
decree in the manner in which he regulated the plaintiff school. The court also affirmed, for the 
most part, the receivership orders entered by the trial court as a remedy for contempt. However, 
the court vacated the trial court's award of attorneys' fees on the grounds of sovereign immunity. 

Automobile insurance cases decided this year included Automobile Ins. Bureau of 
Massachusetts v. Comm'r of Insurance , in which the Supreme Judicial Court upheld the 
Commissioner's authority to adjust future auto insurance premiums to account for an error in 
balancing safe driver insurance plan surcharges and credits in prior years. In a related case. Trust 
Insurance Co. v. Comm'r of Revenue , the Supreme Judicial Court held that the 1997 insurance 
rates set by the Commissioner are not confiscatory as applied to the plaintiff insurance company. 
In two individual appeals from auto insurance merit rating surcharges, Yazbek v. Board of Appeal 
on Motor Vehicle Liability Policies and Bonds , the Appeals Court held that the Board's 
presumptions of fault may be overcome, not by merely introducing some contradictory evidence, 
but, rather, only by a "showing" contrary to the presumption. In another surcharge case, Prescott 
V. Board of Appeal , involving the presumption of fault for failure to stop at or to proceed with due 
caution from a stop sign, the Appeals Court held that the Board erred in relying on that 
presumption in the absence of substantial evidence that the plaintiff failed to proceed with caution. 

Tax cases decided this year included TEAM v. Comm'r of Revenue , in which the 
Supreme Judicial Court held that plaintiffs lacked standing to challenge the constitutionality of 
recent amendments to the capital gains tax law; Comm'r of Revenue v. Dupee . in which the 
Supreme Judicial Court held that a nonresident shareholder who did not have sufficient personal 
involvement with the corporation in question, i.e., the Boston Celtics, was not liable for capital 
gains tax on the gain realized on the sale of the company's assets; Minkin v. Comm'r of Revenue , 
in which the Supreme Judicial Court granted our application for further appellate review and 
affirmed the Appellate Tax Board's conclusion that certain corporate trusts must recognize capital 



216 



gains upon liquidation of the trust property and were not entitled to a step-up in basis on shares 
that had passed from one decedent shareholder to another; and Comm'r of Revenue v. Brown , in 
which the Appeals Court held that a minority shareholder who did not have decisionmaking 
authority over the corporation's disbursement of funds or day-to-day management was not 
personally responsible for payment of the corporation's sales taxes. 

Several appellate decisions were rendered this year in employment-related cases handled 
by Division attorneys. In Tanca v. Nordberg . an employment discrimination case, the United 
States Court of Appeals for the First Circuit affirmed the District Court's decision that the mixed 
motive provisions of the Civil Rights Act of 1991 do not apply to retaliation claims. Rather, in 
retaliation cases, an employer is not liable for employment discrimination if he can prove that, 
even if he had not been motivated by retaliation, he would have made the same personnel decision 
regarding the employee. In Police Comm'r of Boston v. Personnel Administrator , the Supreme 
Judicial Court upheld the Personnel Administrator's decision to set aside a police officer's 
termination for imauthorized absences, on the ground that the officer's failure to give proper notice 
of her absences was "reasonable under the circumstances" for purposes of G.L. c. 3 1, § 38. In 
Provencal v. Civil Service Comm'n . the Supreme Judicial Court held that a statute protecting 
disabled veterans from layoffs did not apply to protect them from demotions. In MacHenry v. 
Civil Service Comm'n . the Appeals Court held that the Personnel Administrator is statutorily 
empowered to review the substantive validity of the reasons given by an appointing authority 
when it chooses to "bypass" the top candidate on a civil Service list in order to appoint a lower- 
ranking candidate. In Commonwealth v. MOSES , the Supreme Judicial Court upheld our position 
than an arbitrator lacked authority to order the Highway Department to pay sick, vacation, and 
holiday pay to an employee who was also receiving such benefits from the imion. In Christensen 
V. Teachers Retirement Board , the Appeals Court held that an optional "longevity" payment 
available to teachers under a collective bargaining agreement was "regular compensation" that 
should be considered in calculating the teachers' retirement benefits. 

Recent amendments to the workers compensation statutes also continued to generate a 
significant amount of litigation during fiscal year 1 997. For example, in O'Brien's Case , the 
Supreme Judicial Court upheld the constitutionality of the impartial medical examination 
procedure as affording sufficient procedural due process to claimants, who are given the 
opportunity to present evidence in addition to the impartial medical examiner's report in certain 
circumstances. In Coggin v. Massachusetts Parole Board , the Appeals Court ruled that the 
administrative judge properly admitted additional medical testimony where the report of the 
impartial medical examiner was inadequate and properly concluded that the plaintiff was disabled, 
despite the impartial medical examiner's contrary opinion. In another workers' compensation 
case, Tobin's Case , the Supreme Judicial Court upheld the constitutionality, under the due process 
and equal protection clauses, of a 1991 amendment to the statute, limiting eligibility for workers' 
compensation benefits of certain employees over age 65 who are eligible for social security or 
pension benefits. 

Several cases decided by appellate courts this year involved issues of state agency 
authority to regulate handicap access and building safety. In lodice v. Architectural Access Board , 
the Supreme Judicial Court ruled that the Architectiu-al Access Board is "the ultimate arbiter of 



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regulatory compliance" and rejected the plaintiffs argument that the Board is without statutory 
authority to review the building inspector's decision as to a proposed building's compliance with 
the AAB's regulations unless the developer claims that the inspector's requirements are too 
onerous. In 1010 Memorial Drive Tenants Corp. v. Automatic Sprinkler Appeals Board , the 
Supreme Judicial Court held that, in exempting older condominium buildings from full automatic 
sprinkler requirements, the Legislature intended to exclude older cooperative apartment buildings 
as well. And, in Massachusetts Laborers' District Council v. Board of Elevator Regulations , the 
Appeals Court held that the Board lacked authority to require that dismantling or removing of 
decommissioned elevators be done only by licensed elevator mechanics. 

In appeals from decisions of professional licensing boards, the appellate courts affirmed 
the revocation of the license of a physician who had sexual intercourse with an intoxicated patient 
( Moustafa v. Board of Registration in Medicine ): upheld the validity of regulations authorizing 
independent schools of manicuring ( Massachusetts Association of Cosmetology Schools v. Board 
of Registration in Cosmetology ): reversed a decision of the Board of Registration in Medicine 
suspending a physician's right to renew his license, on the ground that the Board had failed to 
make the requisite credibility findings ( Herridge v. Board of Registration in Medicine ): and 
affirmed the discipline of a certified public accountant on the ground that his advertisements were 
inherently misleading ( Kelleher v. Board of Public Accountancv ). 

The Division also handled a large number of appeals arising from the grant or denial of 
unemployment compensation benefits. Two such cases ~ Cahalen v. Comm'r of Dep't of 
Employment and Training and Potris v. Comm'r of Dep't of Employment and Training ~ 
involved the issue of whether the employee left work "involuntarily." In Still v. Comm'r of Dep't 
of Employment and Training , the Supreme Judicial Court held that a nursing home aide who was 
discharged for swearing at a patient was not disqualified from receiving unemployment benefits, 
because her discharge was not attributable to a "knowing" violation of her employer's policy 
prohibiting patient abuse. In Modem Dispersions. Inc. v. Comm'r of Dep't of Employment and 
Training , the Appeals Court held that "miscommunication" between an employer and his attorney 
does not constitute "good cause" for the employer's delay in providing separation and wage 
information. 

The Division successfully defended two appeals concerning the State Lottery 
Commission. In Singer Friedlander Corp. v. Massachusetts State Lottery Comm'n . the Supreme 
Judicial Court broadly construed the statutory prohibition on the assignment of lottery winnings. 
In Bretton v. State Lottery Comm'n . the Appeals Court held that the Lottery is not engaged in 
"trade or commerce" within the meaning of G.L. c. 93 A and therefore cannot be sued for damages 
under that statute. 

Division attorneys also handle some environmental litigation. This year, in Baker v. 
Coxe . the United States District Court allowed, in part, our motion to dismiss a case arising from 
an environmental impact review of the construction of a pier on the plaintiffs property. In Strahan 
V. Coxe . the United States District Court allowed in part and denied in part our motion to dismiss 
claims brought by a whale protection advocate who contended that the Commonwealth violated 
the federal Endangered Species and Marine Mammal Protection Acts by licensing gill net and 



218 



lobster pot fishing in Massachusetts coastal waters. We appealed the Court's preliminary 
injunction requiring further state regulation of commercial fishing to the United States Court of 
Appeals for the First Circuit, which had the appeal under advisement at the close of fiscal year 
1997. 

This year. Division attorneys also successfully defended two appeals involving the State 
Racing Commission. In Taunton Dog Track. Inc. v. State Racing Comm'n . the Supreme Judicial 
Court upheld the Commission's authority to permit a race track that had completed a "full 
schedule of live racing performances," as that statutory language was interpreted by the 
Commission, to continue simulcasting after its racing season was terminated due to a quarantine. 
In Foxboro Harness. Inc. v. Racing Comm'n . the Appeals Court upheld the Commission's 
authority to review a race track's refusal to do business with a trainer licensed by the Commission 
and to determine that the race track's business judgment was not reasonable. 

Other significant cases handled by Division attorneys in fiscal year 1997 included 
Dinsdale v. Commonwealth , in which the Supreme Judicial Court held that assistant attorneys 
general defending state agencies and officials in civil litigation are absolutely immune from civil 
rights liability for their conduct in that capacity; Van Munching v. Alcoholic Beverages Control 
Commission , in which the Appeals Court held that the ABCC erred in determining that a beer 
supplier's quantity-based discount to Massachusetts wholesalers violated the intent of G.L. c. 138, 
§ 25A; and Smith v. Registry of Motor Vehicles , in which the United States District Court rejected 
a double jeopardy challenge to a motor vehicle license suspension based on a prior conviction for 
drunken driving. 

Two cases were filed in federal court in August 1996 by manufacturers of cigarettes and 
smokeless tobacco products challenging the new Massachusetts ingredient and nicotine yield 
reporting law. Philip Morris. Inc.. et al. v. Harshbarger. et al. . United States Tobacco Co.. et al. v. 
Harshbarger. et al. . The manufacturers asserted claims under the Supremacy Clause, the Takings 
Clause, the Due Process Clause and the Commerce Clause of the United States Constitution. In 
February 1997, the District Court ruled that the new Massachusetts law is not preempted by the 
federal cigarette and smokeless tobacco labeling laws. This issue was accepted for interlocutory 
review by the First Circuit, where it is awaiting decision. The remaining claims are pending in the 
District Court. 

2. Amicus Curiae Briefs 

The Commonwealth's position was adopted by courts in a number of cases in which 
Government Bureau attorneys filed amicus briefs. In Pinecrest Village. Inc. v. MacMillan . the 
Supreme Judicial Court held that G.L. c. 148, § 261, requires the installation of automatic sprinkler 
systems in condominium townhouses of four or more units, notwithstanding any conflicting 
provisions of the State Building Code. In Kerins v. Lima , the Supreme Judicial Court held that 
foster parents are not "parents" for purposes of being held responsible for the tortious acts of 
children under their care, pursuant to G.L. c. 231, § 85G. 



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3. Municipal Law 

The Attorney General's Office is required by statute to review and approve town by-laws 
and amendments to home rule charters. In addition, the Attorney General's Office reviews and 
comments on any inconsistencies between state law and proposed home rule charters and charter 
revisions. These reviews are performed by attorneys in the Municipal Law Unit within the 
Administrative Law Division of the Government Bureau, with the assistance of attorneys from 
every other bureau in the Attorney General's Office. 

During fiscal year 1997 the Municipal Law Unit received for review 1,767 by-laws and 
22 home rule charters, charter revisions, and charter amendments. The Attorney General's Office 
approved 1 ,547 submissions and disapproved 75 by-laws. The by-laws reviewed included 760 
general by-laws and 862 zoning by-laws. 

Zoning by-laws strike a balance between a property owner's right to use and enjoy private 
property and a municipality's exercise of police power to regulate structures and uses of land for 
the common good. During the past year local attempts to regulate so-called "adult" uses were 
again very common. Passage of the 1996 Federal Telecommunications Act spurred most 
municipalities to adopt by-law regulating the siting and visual characteristics of wireless 
communications antennas and towers. As was true last year, a number of communities chose to 
adopt "phased development" by-laws to slow down new residential construction. Many 
communities made an effort to upgrade their flood plain and well site overlay districts. 

General by-laws pertain to town governance and the exercise of municipal power. As has 
been true for the past several years, the most popular subjects for local regulation are dogs, cats 
and children. Towns adopted by-laws that raised licensing fees, limited numbers of animals, and 
defined nuisances. Children's activities, from skateboarding and roller blading to loitering and 
curfews, were subjects of by-laws approved by several towns. Some of these by-laws were so 
vague as to require disapproval by the Attorney General's Office. Once again, many towns 
adopted or amended general by-laws regulating wetlands. The General Court enacted legislation 
this year permitting towns to adopt by-laws dispensing with counted votes when a two-thirds 
majority approval is required for a town meeting vote. Many municipalities passed the requisite 
by-laws at their 1997 annual meetings. 

In addition to reviewing by-laws, the Municipal Law Unit publishes the Municipal Law 
Newsletter and responds to telephone calls and information requests from town officials and 
residents, legislators, reporters and state agencies. Attorneys from the Municipal Law Unit spoke 
at meetings of associations of town clerks, town counsel, and town planning and zoning boards. 



4. 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 is also 
available from the Opinions Coordinator, as is information about the informal consultation 



220 



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. 

During fiscal year 1997, the Attorney General issued one formal Opinion, concerning 
whether certain proposed ballot questions were questions of "public policy" within the meaning of 
G.L. c. 53, § 19 and could appear on the ballot. In addition, the Attorney General issued 72 letters 
providing informal advice or declining to give advice. 



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THE TRIAL DIVISION 

In FY 1 997, the Trial Division carried forward the innovations and initiatives begun in 
FY 1996 and earlier. The Division emphasizes early evaluation of cases for settlement, disposition 
by motion, or more protracted litigation. In particular, the Division placed increased emphasis on 
efficient case management and alternative dispute resolution (ADR). Working with the recently- 
hired office wide Alternative Dispute Resolution Coordinator, the Division has continued to insure 
that appropriate cases are resolved as quickly and expeditiously as possible through the ADR 
process. 

The Practice Group concept continued through FY 1997 and has proven effective as a 
professional development vehicle for assistant attorneys general (AAGs) at all levels of 
experience. Other training initiatives undertaken include the development and fiill implementation 
of a formal Trial Division orientation program. The eminent domain second chair program also 
began, with the inclusion of Trial AAGs in trials of eminent domain cases being handled by 
outside counsel. These and other professional development ideas, including the established 
mentoring and supervision model, and requiring two AAGs in all Division trials, reflect the 
Division's tradition of and commitment to continuing legal education for its staff. 

The Division contributed to the Attorney General's major priorities in developing and 
producing a program in risk management for Commonwealth agencies. In an effort to Make 
Government Work Better, the Division helped produce a seminar for interested agency personnel 
on the subject of reducing risks and associated costs in the tort area. Division staff participated in 
the Attorney General's Task Force On Diversity, a major priority of the Attorney General in his 
second administration, as members of the Task Force and through development and production of 
an office wide seminar called Race on Trial: The L.A. Cases. 

The Division opened 456 cases in FY 1997 and closed 521 . At the end of the fiscal year, 
1585 cases were pending. 

The Division continued to handle cases in the areas of torts and civil rights, employment, 
eminent domain and other real estate, and contract. The subject matter of these cases reflects the 
wide range of activities engaged in by Commonwealth agencies, but the Central Artery/Ted 
Williams Tunnel Project, the Suffolk County Courthouse litigation, and the Registry of Motor 
Vehicles' Ruggles Center litigation generated many of the largest and most resource-intensive 
matters. 

1. Civil Rights Cases 

Civil rights cases, defended in both the Trial Division and Administrative Law Division, 
present a myriad of legal problems and can subject the Commonwealth to significant exposure. 
Civil rights damage awards are not limited by statute, and successful litigants may recover interest, 
costs and attorneys fees. The Trial Division defended a number of civil rights cases in FY 1997. 
The following are representative. 



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Prisoners bring many actions against the Commonwealth during their periods of 
incarceration, many of which they style as civil rights cases. Most significant among these was 
Richardson v. Commonwealth , in which the Supreme Judicial Court upheld a grant of summary 
judgment against two court officers who, it was alleged, had been deliberately indifferent to the 
decedent's rights, leading to his suicide. Likewise, in Mayhew v. Commonwealth , the Superior 
Court dismissed all civil rights claims in a prisoner suicide case. 

Actions involving civil custodial arrangements (civil commitments or foster children) 
often are brought under the civil rights laws. In Ashley v. Commonwealth , the Appeals Court 
upheld a summary judgment on a claim of improper commitment to Taunton state Hospital. The 
Division obtained dismissal of civil rights claims arising out of the placement of plaintiff s minor 
children into a foster home in Kroutil v. DSS . After dismissal of the civil rights claims against 
state social workers, arising out of removal of one of the plaintiffs' children from their home, in 
Suarez v. Commonwealth , the plaintiffs dropped their remaining claims. 

Courts also granted several Commonwealth motions to dismiss in actions against court 
personnel. In Janes v. Cambridge District Court , the Commonwealth's motion was allowed in a 
suit claiming that the court clerk had discriminated against the plaintiff, and in Triplett v. 
Donovan , the plaintiffs claims against a court clerk for improper docketing of court filings was 
dismissed. See also Gorod v. Commonwealth; Houston v. Rufo. 

The Court dismissed the plaintiffs suit in Cormier v. Rapone . in which he made 
allegations that state troopers had beaten him and denied him medical treatment after they had 
been called to quiet a noisy party. The Court's based its ruling on qualified immunity grounds. 

The Division settled numerous civil rights cases. In a significant affirmative action case 
in the U.S. District Court where the plaintiff challenged the constitutionality and implementation 
of the set aside program for minorities and women, the Commonwealth settled with the plaintiff 
for $77,000. P.J Gear and Sons. Inc. v. Palermo . The Division settled another federal court 
affirmative action case, brought by a business that had claimed to be minority-owned. Converse 
Construction Co. v. Kerasiotes . Where an attorney claimed that the Board of Bar Overseers had 
violated his first amendment rights in a disciplinary matter, the Commonwealth reached a 
nonmonetary settlement. Diviacchi v. Board of Bar Overseers . 

2. Real Estate Cases 

In the area of eminent domain and other real estate, the Division opened 106 cases and 
closed 144 during FY 1997. The disposition of land damage cases resulted in a savings of over 
$105 million to the Commonwealth, which represents the difference between the amounts claimed 
and the amounts paid. 

The Trial Division handles many different kinds of real estate cases. The ones with the 
largest potential exposure to the Commonwealth are often in the area of eminent domain, where 
landowners are entitled to jury trials in cases where they are not satisfied with the award the 
Commonwealth has made to them in the condemnation process. In the last few years, many cases 
have been generated by the Massachusetts Highway Departtnent's Central Artery/Ted Williams 



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Tunnel project, the largest single public works project in the United States, in which downtown 
Boston's entire traffic pattern is undergoing change. The following are some of the significant 
Central Artery cases and others the Trial Division handled in the real estate area in FY 1 997. 

In one Central Artery case, the Commonwealth took plaintiffs ground leasehold and 
industrial building in South Boston near the World Trade Center. Plaintiff was a major Boston 
developer, and the industrial building had once housed the Turner Fisheries processing operation. 
The plaintiff testified his property was worth as high as $2.1 million and his appraiser testified that 
it was worth $570,000. The jury returned a verdict of $200,000, which represented a savings to 
the Commonwealth of nearly $500,000, including interest, if the jury had based its verdict on 
plaintiffs appraiser's figure. One Fish Pier Realty Trust v. Commonwealth. 

In perhaps the largest eminent domain claim in the history of the Commonwealth, 
McCourt V. Commonwealth , the Trial Division helped negotiate a settlement of $57.5 million in 
"new money," or damages in excess of the original payment to the landowner. In this case, the 
Central Artery made a large and complex series of takings in South Boston directly across 
Northern Avenue fi-om the new federal courthouse under construction on Fan Pier. The 
Commonwealth faced significant exposure in this case because the original payment did not take 
into account the high per square foot payment that the federal government made when it bought 
the nearby Fan Pier property, a number that would have been used as a "comparable sale" had 
there been a trial. Nevertheless, the Commonwealth successfiiUy negotiated a final settlement 
figure that was well under plaintiffs appraiser's figure of $149 million. The settlement process 
was extremely complex, and the final transactions involved payment of money and ancillary 
transactions involving the grant of easements to the MBTA and other land purchases. The 
settlement saved the Commonwealth $130 million or more, including prejudgment interest, over 
the result that would have obtained fi-om a verdict based on plaintiffs high appraisal figure and 
provided significant additional public benefits to the MBTA. 

In a taking of a former gas station property by the Massachusetts Highway Department in 
Middleborough, plaintiffs appraiser valued the land at trial at $1.1 million. This case was a re- 
trial that resulted from the court's declaration of a mistrial when the "pro tanto" amount-the 
money originally paid to the owner-mistakenly came to the attention of the jury. In the retrial the 
parties settled the case in mid-trial for a savings of $3 1 7,000, had the jury based a verdict on 
plaintiffs appraiser's tesfimony. LeFever v. Commonwealth . 

The jury returned a verdict which saved the Commonwealth almost $450,000 in two 
related cases arising out of a Metropolitan District Commission land taking in the vicinity of Route 
1 in Saugus. In these cases, plaintiffs' appraiser testified that one piece of land was worth 
$397,000 and another was worth $889,000. Gregson and Hollet v. Commonwealth. Hollet v. 
Commonwealth. 

In a case tried to a judge but not yet decided. Division staff contributed large amounts of 
time and effort to the defense of Spaulding Rehabilitation Hospital v. Commonwealth . The case 
involves a claim by Spaulding that the Central Artery agreed to "take" Spaulding for its proposed 



224 



Charles River Crossing. The plaintiff asserts that Commonwealth's potential exposure in the case 
exceeds $60 million. 

In addition to eminent domain cases, the Division handles other real estate matters. 
Among those are cases having to do with "great ponds" in the Commonwealth and all cases in the 
Land Court in which the Commonwealth may have an interest. 

The Division also contributes to legislative efforts the Attorney General undertakes. In 
the real estate area, for example, the Office supported legislation proposing to reduce the statute of 
limitations for filing eminent domain actions from three years to one year. 

3. Employment Cases 

In the employment area, the Division opened 25 cases during the fiscal year. The 
following are representative of the cases the Division handled in FY 1997. 

McCarthy v. Office of State Auditor involved a sexual harassment claim. Plaintiff 
alleged that supervisors had created a hostile work environment and later retaliated against her for 
having made the initial claim. The plaintiff had asked for $330,000, including attorneys fees, and 
the Division successfully settled the case for $85,000. This is an excellent example of the use of 
ADR to settle Commonwealth litigation. 

In a United States District Court case, the plaintiff alleged she had been terminated 
because of discrimination based on her age, sex, and religion. The Commonwealth's defense was 
that plaintiff had abandoned her job, had given no indication of when she would return, and as a 
consequence she was dismissed. Because the plaintiff failed to cooperate with discovery, the 
Court dismissed the complaint. Plaintiff is now appealing the dismissal. Gorod v. Division of 
Employment and Training. 

The Court granted the Commonwealth's motion for summary judgment in Alston v. State 
Board of Education and Local 509 . after the plaintiff failed to show that the Board's reasons for 
her dismissal were a pretext for discriminating against her because of her race. In this case, the 
Board had been restructured and a white female had won a job through a "bidding" process the 
plaintiff had formerly held. The Board held that the successful applicant had more seniority and 
greater skills and therefore deserved the position. The Court upheld the Commonwealth's and the 
Board's positions. 

In another United States District Court case, the Court granted the Commonwealth's 
motion for summary judgment after the plaintiff failed to show she would have received a 
promotion had it not been for her sex. The First Circuit affirmed the judgment for the 
Massachusetts Rehabilitation Commission on appeal. Smith v. Commonwealth. 

In a suit against the Departments of Mental Health and Mental Retardation, the plaintiff 
claimed that the Commonwealth had discriminated against her because of her sex and because she 
was handicapped. At the start of a five day trial, the disability claims against the Department of 
Mental Retardation were dismissed, leaving the sex claims against the Department of Mental 
Health. The Department of Mental Health presented evidence at trial that plaintiff was qualified 



225 



only for entry level "step-in-grade," she had been promoted to a higher grade, men and women 
were subject to the same job requirements, and plaintiff was dismissed after she abandoned her 
job. Plaintiffreceived an award after trial of only $20,000. Carbone v. Department of Mental 
Health and Department of Mental Retardation. 

4. Torts Cases 

In the torts area, the Division opened 271 cases and closed 313. The remainder were 
resolved by dispositive motion or settlement. The following are representative of the cases the 
Division handled in FY 1997. 

The Division prevailed at the appellate level in several torts cases during the fiscal year. 
In Barnes v. Commonwealth , the Supreme Judicial Court reversed a Housing Court decision, 
because the public housing contract in question expressly excluded Commonwealth liability to 
third parties, including liability for lead paint in a privately owned apartment. In another trial 
division case, the Supreme Judicial Court rejected a liquor liability claim against the 
Massachusetts National Guard, because there was insufficient evidence to find that the persons 
who served the liquor were acting within the scope of their military employment. Burroughs v. 
Commonwealth . 

In the Appeals Court, the Division prevailed in Jenkins v. DeTucci . by obtaining reversal 
of a $500,000 verdict against two Department of Mental Retardation officials, where there was no 
evidence that the officials acted maliciously. It also prevailed on appeal in Ashley v. 
Commonwealth (failure to post a bond pursuant to the medical malpractice tribunal statute) and in 
ESA V. Linsky (no defamation or abuse of process). 

Trial Division attorneys tried ten cases during FY 1997. In one Suffolk Superior Court 
jury trial, the plaintiff claimed she had suffered injuries when her golf cart hit an unmarked 
sprinkler head at a state-owned golf course. After two days of trial, the jury found the 
Commonwealth was not negligent. Wright v. Commonwealth. 

In a case against the University of Massachusetts, after three days a Middlesex County 
jury returned a verdict for the Commonwealth. The plaintiff had claimed the University was 
negligent after he had slipped and fallen in a puddle of water. Nassor v. University of 
Massachusetts . 

A plumber who lost his foofing descending a ladder on the roof of a Commonwealth 
building suffered a knee injury and sued. The handrail at the upper end of the ladder was cut short. 
The plaintiff claimed that the injury was caused by his inability to prevent his fall by grasping the 
ladder. After a three day jury trial, a Suffolk County jury returned a verdict in favor of the 
Commonwealth and other defendants in the case. Pierce v. Massport . 

When he was a student at the University of Massachusetts at Amherst, the plaintiff 
injured his leg sliding into home plate in an intramural Softball game. He sued the University 
claiming that it had been negligent in not maintaining properly the area around the plate and a 



226 



depression had developed which caused the injury. A Middlesex County jury returned a verdict 
for the Commonwealth in the case. Donovan v. University of Massachusetts. 

Juries returned verdicts for the Commonwealth in several other cases as well. Rainey v. 
Commonwealth (automobile accident involving an employee of the Massachusetts Fire Fighting 
Academy); Hougham v. Metropolitan District Commission (fall at a public skating rink); Larkin v. 
Morgante. et al. (automobile accident involving a National Guard vehicle); and Connerty v. 
Commonwealth (injiuy to a child's leg in a park). In one arbitration involving a motor vehicle 
accident, the arbitrator awarded $50,000 after finding the state police negligent, but finding the 
plaintiff 40% negligent as well. 

Most tort cases do not go to trial, but are either disposed of in pre-trial proceedings or are 
settled. The following are examples of Division tort cases disposed of but not tried in FY 1997. 

The so-called "public duty" amendments to G.L. c. 258 § 10 continue to provide grounds 
for disposition of tort cases by motion, rather than trial. For example, in Rocheleau v. 
Commonwealth , the plaintiff claimed that he was injured when a sandbag thrown off an overpass 
hit his windshield. At the time of the incident, the overpass was under construction and the 
evidence showed that the sandbag was thrown from the bridge by an unidentified third person. 
The court granted summary judgment in favor of the Commonwealth on the ground, among others, 
that G.L. c. 258 § 10(i) barred the suit. In another § 10(j) case, the Commonwealth obtained 
summary judgment where the plaintiff alleged that he was pushed to the ice by a fellow skater at a 
public rink. Murphv v. Commonwealth . 

Notwithstanding the road defect statute, a plaintiff claimed that his car was damaged 
because two sections of a bridge were improperly aligned. The Commonwealth moved to dismiss 
the case on the basis that the road defect statute limited liability to personal injuries. The Court 
agreed and granted the motion. Merchants Mutual Insurance Co. v. Commonwealth . 

The recreational use statute required dismissal of a claim by a plaintiff whose bicycle 
struck an alleged defect in the Esplanade roadway, but there was no evidence of willful, wanton or 
reckless conduct by the Metropolitan District Commission. 

In an unusual defamation case, the plaintiffs claimed that Massachusetts Highway 
Department Employees made damaging statements about them in connection with the awarding of 
a public contract. The Court agreed with the Commonwealth that the statements, which had been 
made before a Committee of the House of Representatives, were privileged and not defamatory. 
Signal V. Nagle . 

In a Worcester case, the plaintiff sued the Commonwealth for personal injuries arising 
from an accident. The plaintiff had previously reached a settlement with the Massachusetts 
Highway Department for property damage resulting from the same accident. The Court agreed 
with the Commonwealth and granted a motion for summary judgment, holding that the plaintiff 
could not bring further claims on the same case, after settling one claim. At the time, there was no 



227 



Massachusetts case law on the subject and the Court followed the construction of the same 
language in the Federal Tort Claims Act. Knight v. Commonwealth . 

Significant torts settlements included Pounds v. Commonwealth ($100,000 total payment 
to two victims of a shooting by a recent parolee); Driscoll v. Commonwealth ($45,000 paid to a 
victim of an electrical shock while working on a prison structure); Woodbum v. DSS ($25,000 
settlement in a custody and medical care case); Campos v. Commonwealth ($55,000 contribution 
to a settlement paid to a minor plaintiff who jumped from the window of a residential facility 
where DMH had placed him); Jean W. v. Commonwealth ($1 1 7,5000 payment to a rape victim 
and others where the perpetrator was mistakenly released on parole); Retecki. Adm.'s. v. 
Commonwealth ($200,000 payment to estates of decedents whose deaths allegedly resulted from 
the negligence of a state psychiatrist); Gigliotti. Adm'x. v. Commonwealth ($75,000 payment to 
estate of a decedent which brought a malpractice action against the Massachusetts Hospital 
School, 1/3 of which is to be given to a scholarship fiind). 

5. Contracts Cases 

In the contracts area, the Division opened 47 cases and closed 45. Two major affirmative 
cases in the contracts area (Suffolk County Courthouse and Ruggles Center) are discussed above 
under "Affirmative Litigation." The Division also continues to defend a number of cases 
involving state contracts. The types of contracts include construction contracts for projects 
ranging in value from many millions to several hundreds of thousands of dollars; leases entered 
into by state agencies; and contracts for the purchase of goods and services. At the end of the 
fiscal year, 229 contracts cases were pending, representing a total dollar exposure to the 
Commonwealth of over $25 million. The following are representative of the Division's contract 
cases. 

In a case involving a computer procurement designed to replace outdated human 
resources and payroll systems for 248 state agencies including the judiciary, the plaintiff sought 
injunctive relief after the contract originally awarded to the plaintiff had been rescinded following 
a reconsideration of the plaintiffs ability to perform. The Court granted a preliminary injunction, 
but the matter settled before a hearing on the merits for approximately 25% of plaintiff s original 
offer. American Management Systems, Inc. v. Personnel Administrator. 

Where an auto dealer attempted to stop the state police's purchase of over 400 new police 
cruisers through the public bidding process, the Court allowed the Commonwealth's motion to 
dismiss the case. AMI Motor Sales v. Department of State Police. 

As the result of unusually heavy rains, a diversionary water system flooded in 1995 and 
caused damages to 52 homes and businesses in Lynn and Swampscott. The Metropolitan District 
Commission sued to recover damages in excess of $300,000 from the architect and contractor who 
designed and built the system. Metropolitan District Commission v. Paonessa Company. Inc . 

In North Shore Steel Co. v. Division of Capital Planning and Operations , the Court 
denied a subcontractor's motion to enjoin the Division of Capital Planning and Operations from 
requiring it to perform as a Minority Business Enterprise (MBE) participant on a building 



228 



construction contract. The subcontractor, a certified MBE and a filed subbidder on the contract, 
had been carried by the lowest bidder for the ftiU amount of its filed subbid. The Court ruled in 
the Commonwealth's favor, concluding that the subcontractor failed to show "likelihood of 
irreparable harm." 

The Division also participated in a variety of ADR forums and had several advantageous 
settlements as a result. One of these was JRJ v. Commonwealth , where a claim of approximately a 
half million dollars was settled for $30,000 plus the contract balance. Other settlements resulted in 
Buduo V. Commonwealth , and I.W. Harding Construction Co. v. Commonwealth . 

In addition to litigation, the Division advises state agencies and officials on contract 
issues, including questions concerning formation of contracts, contractor performance, bidding 
procedures, challenges to bidding processes, contract contents, contract interpretation and other 
matters. The most fi-equent requests include questions involving the bid process and potential 
litigation of the Commonwealth and other parties in the event of failure to perform contractual 
obligations. The Trial Division also conducted two seminars for the Department of Environment 
Management engineers on how to avoid litigation and how to conduct their work to make their 
decisions defensible in the event of litigation. 

The Trial Division also reviews contracts for legal services. The Division received 174 
contracts during the fiscal year, of which 155 were approved and 19 were rejected. 



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THE ENVIRONMENTAL PROTECTION DIVISION 

The Environmental Protection Division (EPD) serves as litigation counsel on 
environmental issues for various state agencies, particularly those within the Executive Office of 
Environmental Affairs. EPD handles 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, and 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 1997, EPD handled enforcement proceedings leading to judgments 
requiring fiiture payments to the Commonwealth of $2,266,128. These figures are for penalties 
and cost recovery awarded in fiscal 1997, whether or not actually paid in fiscal 1997. Actual 
payments, received by EPD, in fiscal year 1997, were $1,147,790 for civil penalties and 
$5,046,949* for hazardous material cost recovery, for a total of $6,194,739. Other cases resulted 
in court judgments requiring private parties to undertake costly cleanups~a savings of millions of 
dollars for the Commonwealth. 

*This figure includes Charles George Expendable Trust and asbestos monies to DCPO. 

I. State Enforcement and Cost Recovery 

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

A. Air Pollution 
Clean Air Act enforcement was a priority. Examples of significant air pollution matters 
we handled include Commonwealth v. MacMillan-Bloedel. in which we obtained a consent 
judgment requiring payment of $400,000 in civil penahies and injunctive relief involving alleged 
air pollufion violations by a company that paints and stains wood siding for buildings. We also 
obtained a consent judgment in Commonwealth v. Quantum Machine Stained Coatings. Inc .. 
requiring payment of $325,000 in civil penahies and injunctive relief involving similar violafions. 

In Commonwealth v. Poly Organix. we sued a company for alleged violations of the 
Toxic Use Reduction Act and the Clean Air Act. As a remedy for these violations, the company 
agreed to apply for a new comprehensive air pollution permit, to install additional air pollution 
control equipment, to implement designated toxic use reduction measures, to perform a 
compliance audit, and to pay a penalty of $50,000. 

The Bankruptcy Court entered an order allowing administrative expense priority status 
for the civil penalties and fees owed to the Commonwealth in Commonwealth of Massachusetts v. 
Salem Suede. Inc . The U.S. Bankruptcy Court for the District of Massachusetts granted Salem 



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Suede, Inc., a Chapter 1 1 Debtor, authority to enter into a consent judgment with the 
Commonweahh to resolve alleged environmental violations and pay a civil penalty and Toxic Use 
Reduction Act fees of between $250,000 and $100,000. Under the terms of the consent judgment 
filed in Suffolk Superior Court, Salem Suede must obtain necessary air and water permits, install 
pollution control equipment, comply with sewer discharge limits of the South Essex Sewerage 
District, and submit required filings on its use of toxics. 

We obtained a consent judgment in Commonwealth v. Zeneca . a case in which we 
alleged that a company in Wilmington failed to report a release of hazardous materials into the air. 
The settlement required the company to pay a $400,000 penalty and to conduct comprehensive 
auditing of its facility. 

We also obtained consent judgments in cases involving gas stafions that had not installed 
required vapor recovery equipment, including Commonwealth v. Yankee Trader ($10,000 penalty) 
and Commonwealth of Massachusetts v. Zartir. Inc.. et al. ($5,000 penalty). 

Cases we filed involving the alleged illegal handling or disposal of asbestos included 
Commonwealth v. Pam Realty. Inc .. in which we alleged the president of Pam Realty hired a 
contractor to renovate a commercial property and that the contractor illegally demolished and 
disposed of an old boiler containing asbestos. In Commonwealth v. Chicken Brook Realty Trust. 
we alleged that, during renovation of commercial property in Medway, dry asbestos was left 
exposed inside and outside the property. The defendant agreed to pay a civil penalty of $32,500. 
We also obtained a final consent judgment in Commonwealth v. Granger a case involving the 
removal of asbestos in an apartment building in Worcester. The defendant agreed to pay a $11, 500 
civil penalty and to participate in an asbestos removal training course. 

B. Water Pollution/Water Supplv 
EPD handled a number of water pollution cases and brought enforcement actions to 
prevent water pollution and protect water supplies. Amtrak will pay $150,000 in penalties and 
improve its train washing facility in South Boston after the company discharged pollutants into the 
Boston sewer system in excess of the amount allowable under state law. In addition, Amtrak must 
install a system to reduce the level of oil in the wastewater, and install related pollution control 
devices to ensure compliance. 

Two enforcement actions were brought against two mobile home parks with failing septic 
systems. In Commonwealth v. Kelleher. the court entered two consent judgments to address the 
problems suffered by the residents of a mobile home park in Belchertown with failing septic 
systems and a threatened water supply. The first judgment requires the former owners to pay a 
$10,000 penalty and fund a $27,500 escrow account that may be drawn on by the current owner to 
help fimd necessary remedial work. The second judgment requires the current owner to address 
the former owners' neglect of the sepfic and water supply systems by inspecting and repairing 
them and by replacing the park's well. And, in Commonwealth v. Heritage Mobile Home Park. 
Inc. . we commenced the action for violations of the Clean Waters Act and Title 5 of the State 
Environmental Code. We also alleged that the owner of the park allowed the discharge of 
pollutants into Commonwealth waters without a groundwater discharge permit in violation of the 



231 



Clean Waters Act. The court granted our requests for a temporary restraining order, preliminary 
injunction, and the appointment of a receiver. This case was resolved in a manner that fixed the 
sewage disposal problem and that resulted in the purchase of the park by the tenants. 

In Cape Ann Citizens Association v. City of Gloucester , a citizen suit that sought to 
challenge the Consent Decree that we had obtained in United States v. City of Gloucester , we 
successfully argued to the First Circuit that the consent decree was consistent with the objectives 
of the Clean Water Act and otherwise not subject to challenge. 

In an Environmental Strike Force case, McMahon v. Town of Dracut . the court entered a 
Modified Final Judgment against the town that requires it to correct water pollution problems 
recently discovered by the Environmental Strike Force. By the terms of the modified judgment, 
the town must install sewers in unsewered or imdersewered sections of the town and must study 
what kinds of pollution controls it need to install elsewhere. Among other serious problems, town 
residences and businesses have had their sanitary systems illegally connected to the Town's storm 
drainage system, through which they have been discharging raw sewage to the Merrimack River, 
principal water source for Methuen, Tewksbury and Lowell. 

In Commonwealth v. Town of Cohasset . the Division obtained Town agreement to, and 
Court approval of, an amended consent judgment, requiring the Town to construct a wastewater 
treatment plant by the year 2000. The Town subsequently appropriated $15 million for this 
purpose. 

C. Hazardous Waste and Materials 
EPD brings lawsuits against responsible parties to remediate contamination caused by oil 
or hazardous materials, including litigation 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. The 
following are examples of hazardous waste cases that EPD handled in the last fiscal year. 

In Commonwealth v. Federal Pacific Electric Co. . the court entered three consent decrees 
resolving the liability of the defendants at the Norwood Superfund Site. These decrees obligated 
the defendants to reimburse the United States and the Commonwealth approximately $ 1 1 million 
for costs incurred for remediation of the site, and to implement a large portion of the remediation 
at the site. 

A consent judgment was entered by the court in Commonwealth v. Rozenas . a case 
involving oil contamination at a gasoline station/fiimiture warehouse in Raynham. The owner and 
operators of the site agreed to pay the Commonwealth $300,000 for the clean-up. 

We filed suit in Commonwealth v. Thompson , to require the defendants to perform 
immediate hazardous waste cleanup at an industrial property in East Longmeadow and to recover 
costs incurred by DEP at the site. The defendant owner of the site died shortly after the action was 
commenced. Although the court denied our motion for preliminary injunctive relief, we obtained 
partial summary judgment against the deceased property owner's estate, establishing its liability 



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under c.2 1 E. In Commonwealth v. Microwave Development Laboratories. Inc. . we obtained 

a consent judgment that requires the defendant to complete the cleanup at and around its facility in 
Needham and to operate various interim remedial measures currently in place. The defendant will 
make payments into an escrow account for 1 5 years to fund the cleanup measures. The Town of 
Needham, an intervenor plaintiff, will also receive reimbursement of cleanup costs it incurred. 

We filed suit seeking removal of underground storage tanks at the defendant's property in 
Holyoke in Commonwealth v. William Clausen . A preliminary injunction requires the defendant 
to immediately drain the product from the tanks. A real estate attachment covering two other 
properties was also allowed. 

D. Wetlands 
EPD also brings enforcement actions to protect the Commonwealth's wetlands resources. 
Among the wetlands cases that we did this year was a series of cases that sought to "turn around" 
the practices of an entire industry, the redi-mix concrete industry. In Commonwealth v. Bardon 
Trimount. Inc. . we filed suit alleging that the defendant violated water quality requirements by 
discharging cement truck-wash to a reservoir watershed in Waltham, a playground in Watertown, 
and the MWRA sewer in Dorchester, and that Bardon violated the Wetlands Act by discharging 
sediment-laden water in Peabody. The consent judgment provides that the defendant will pay a 
$150,000 civil penalty, conduct an independently verified environmental audit of all of its 
Massachusetts facilities, help present an industry envirormiental training program, and eliminate 
almost twenty years of filling by restoring over an acre of wetlands at its Peabody site. Another 
example is Commonwealth v. Wakefield Ready-Mixed Concrete Company in which we obtained a 
$100,000 civil penalty. The defendants also agreed to repair three acres of wetlands at their 
Burlington site and to construct facilities to recycle wastewater and waste concrete. 

In 1995, the defendant agreed to the entry of a Final Judgment in Commonwealth v. 
Benevento Sand & Gravel. Inc .. that required it to refrain from further violations, restore 
previously filled wetlands and pay a penalty of $100,000. After DEP discovered that the defendant 
was in violation of the Final Judgment, we settled the matter by agreeing to entry of a Modified 
Final Judgment, which ends the defendant's violations of the Clean Waters and Wetlands 
Protection Acts, fined it an additional $25,000 and required it to place an advertisement in a trade 
magazine informing other firms in the industry of the need to comply with state and federal 
environmental laws. 

In Commonwealth v. Blackstone-Chicago Corporation , we obtained a consent judgment 
with the Blackstone-Chicago Corporation, a real estate developer allegedly responsible for 
wetlands damage due to erosion at its subdivisions in Northbridge and Uxbridge. Blackstone 
agreed to take steps to help restore the damaged wetlands and pay a civil penalty of $25,000. In 
Commonwealth v. Mendes . the defendant had been found liable after trial of violating the 
Wetlands Protection Act and the Solid Waste Disposal Act and of creating a public nuisance, by 
illegally dumping fill on his property in Agawam. After the defendant failed to comply with the 
resulting court order, we filed a contempt action and obtained the defendant's arrest on a no exit 
warrant. The defendant then completed the required restoration of the subject site. 



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Commonwealth v. Aguiar is another case demonstrating the office's commitment to 
follow up on the judicial relief it obtains. In this case, the defendant destroyed coastal wetlands 
and repeatedly failed to comply with the enforcement orders of local and state authorities. After 
the court issued an order requiring the defendant to restore the wetlands by a certain date or go to 
jail, the defendant complied. 

E. Solid Waste 

In Commonwealth v. Hercules Building Wrecking Co. . we obtained a court order 
prohibiting the defendants from accepting debris at their Brockton site. When the order was 
violated we obtained an order in a civil contempt action that put the defendants on notice that 
certain conduct could subject them to criminal contempt in the future. 

F. Pesticides 

In Commonwealth v. Buckeye Pipeline , we alleged that the defendants used unregistered 
pesticides in their annual applications on a right of way in Ludlow and failed to have approved 
plans for the applications. We obtained a consent judgment requiring the defendants to pay 
$62,500 for violating the Massachusetts Pesticide Control Act. The judgment also required the 
defendants to refrain from using unregistered pesticides and to obtain necessary approval before 
further applications are made to any right of way. 

G. Forest Cutting . 

We obtained a temporary restraining order and a preliminary injunction against the 
defendants in Commonwealth v. Mizhir to enjoin clear-cutting of a forest in Winchendon. Our 
complaint alleged that the defendants clear-cut forests in violation of the Forest cutting Practices 
Act, G.L. c. 132, §§ 40-46, without an approved forest cutting plan from the Department of 
Environmental Management. 

II. Clean State Initiative 

The Clean State Initiative was created through the partnership efforts of the Attorney 
General and the Weld Administration. Under Executive Order 350, state agencies and authorities 
have been directed to identify, prioritize and remedy their environmental problems. 

A. Clean State Report to the Legislature 

Pursuant to his authority under G.L. c. 12, § 11 D, the Attorney General issued his second 
report to the Governor and the Legislature on the Clean State Initiative at the end of this fiscal 
year. The report documents the successes of the Clean State Initiative, points out problems 
relating to many "priority" matters that were going to fail to make the June 30, 1997 deadline for 
resolving such matters, and recommends steps that need to be taken now if the state is to achieve 
environmental compliance on the over 1400 remaining matters by the year 2000 and to remain in 
compliance. Further, in a direct response to recommendations made by the Attorney General in a 
prior Clean State progress report. Governor Weld in January, 1 997, issued a directive that requires 
each state agency to appoint an Environmental Health and Safety Director. The EHS Directors are 
ordered to ensure that ongoing environmental problems are dealt with expeditiously and that 
agencies comply with environmental laws in the future. 

B. Other Actions of EPD in Conjunction With the Clean State Initiative 



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In Commonwealth v. Massachusetts Bay Transportation Authority , an action taken under 
the Clean State Initiative, we obtained a consent judgment that requires the MBTA to complete the 
cleanup of petroleum contamination at the Fellsway Bus Garage in Medford. Under the terms of 
the judgment, the MBTA must also comply with regulations for testing and maintenance of 
underground storage tanks at the garage. The MBTA is currently performing immediate response 
actions at the site to stop the migration of petroleum in groundwater and in a storm drain system. 

In Commonwealth v. Commissioner. Department of Public Safety , we brought suit 
against DPS for numerous underground storage tank (UST) violations of longstanding duration at 
its 1010 Commonwealth Avenue property. DPS agreed to survey the property and tanks, drain the 
tanks immediately, and remove the USTs by October, 1997. 

In related action, we launched an investigation of state-owned USTs which revealed 
numerous violations of the UST regulations. We sent letters to each agency and authority detailing 
the violations, requesting that they enter all noncompliant USTs into the Clean State database, and 
requesting that tightness testing be performed on all aging USTs in order to prevent environmental 
damage and expensive fiature G.L. c. 21 E cleanups. We also requested that all USTs no longer in 
service immediately be removed from the ground. 

After lengthy involvement by our office and discussions with the Town of Norfolk, the 
Department of Correction agreed to replace, rather than just repair, its failing sewage pipeline in 
Norfolk. Several large sewage outbreaks into a lake occurred in 1 995 from the pipeline, which 
handles the sewage from four prisons. Despite an increase in cost, DOC has also agreed to 
construct the new pipeline in a public easement, a more environmentally-protective route than its 
present location. DOC has signed an administrative consent order agreeing to deadlines for the 
construction of the new pipeline. 

III. Brovynfields Reform : 

The office was extremely active on several fronts in efforts to further the redevelopment 
of contaminated "brownfields," which exist most often in urban areas. First, we participated in the 
statewide policy debates at the State House and through the state "Brownfields Advisory 
Committee" on how to reform our hazardous waste liability laws to fiirther brownfields cleanup 
and redevelopment. On December 4, 1 996, Attorney General Harshbarger together with 
Representative Charlotte Richie filed A Bill to Create Brownfields Development Agreement Pilot 
Program (H. 4334). This bill would set up a pilot program designed to spur the reuse of 
brownfields in the areas of the Commonwealth with the most economic need. This program 
would create a process through which developers proposing to redevelop brownfields in such areas 
could apply for liability protection and ftmding through "one stop shopping." The Attorney 
General also provided extensive oral and written testimony on other bills that would create some 
across-the-board liability changes and ftmding, as well as proposed substitute language on key 
provisions. 

The office was also extensively involved in efforts to turn around particular brownfields 
sites statewide. Through the Clean Sites Initiative that the Attorney General previously established 
with the Weld Administration, we granted many covenants-not-to-sue that helped further the 



235 



redevelopment of projects from Lee to Revere. In addition, the office has also had a critical role in 
solving the liability issues for, and thus trying to make happen, many important projects outside of 
the Clean Sites Initiative, ranging from the first supermarket built in the Jackson Square area in 
many years, to the innovative development efforts being undertaken at Ft. Devens, to the Regional 
Transportation Center in Wobum, to the Medical City development in Worcester, to the rebirth of 
shipbuilding at the Quincy Shipyards. The office has also played an integral role in ftirthering 
local brownfields programs in Boston and New Bedford. 

The office continued to work closely with state and federal officials to resolve issues 
regarding the contamination of the Housatonic River and landowners' properties with 
polychlorinated biphenyls (PCBs) that were generated by General Electric's former manufacturing 
operations in Pittsfield. This effort took many forms, including work on a pilot program designed 
to help spur the redevelopment of part of the industrial site. In a related matter, an amicus brief 
that we filed in Church v. General Electric convinced the federal District Court to deny General 
Electric's motion for summary judgment in suits against the company for property damages caused 
by the PCBs. GE had argued that the suits should be dismissed as being barred by the statute of 
limitations. Together with the state Department of Environmental Protection, the office also 
offered to provide liability protection for property owners onto whose property PCBs from the GE 
plant had migrated. Similar protection was offered to residents of Cape Cod whose property 
overlay underground plumes of contamination emanating from the Massachusetts Military 
Reservation. 

IV. Low Emissions Vehicle Litigation & Related Developments 

On many fronts, the office continued its role fighting for Massachusetts' right to require 
cleaner cars. In American Automobile Manufacturers Ass'n et al. v. DEP . the long running battle 
by the automobile manufacturers and dealers against the Massachusetts Low Emission Vehicle 
program, we filed for summary judgment in U.S. District Court on the remaining issue: whether 
Massachusetts can require the manufacturers to deliver a limited number of electric vehicles for 
sale between now and model year 2003, when a full scale production and delivery mandate will 
take effect. 

Comments to EPA on National Low Emission Vehicle Proposal . On March 7, 1 997, 
Attorney General Harshbarger wrote to the federal EPA asking the agency to rethink its proposal 
for a "National Low Emission Vehicle Program." EPA was preparing to issue regulations that 
would create a framework to implement an elaborate proposed agreement between the 
Northeastern States and the car companies. Pursuant to such an agreement, the car companies 
would produce cars nationwide meeting standards stricter than the current federal "Tier I" 
standards, but laxer than the California LEV standards. The Attorney General criticized the 
proposal for asking the States to give up their statutory right to require the California standards in 
return for benefits that — for a variety of reasons - they would otherwise see anyway. He also 
questioned the legality of the EPA proposal. 

In Vir ginia v. Environmental Protection Agency , the U.S. Court of Appeals for the D.C. 
Circuit held that EPA's rule which required states in the Ozone Transport Region to adopt 
California automobile emissions standards exceeded its authority under the Clean Air Act. Having 



236 



taken a lead role in support of EPA's rule with four other states, we filed a request for 
reconsideration and rehearing en banc in the challenge to EPA's rule requiring States in the 
Northeastern U.S. to adopt the California Low Emission Vehicle program. The Court denied the 
request. 

V. Energy-Related Environmental Issues 

The Attorney General intervenes in facility siting and licensing proceedings when he 
determines that intervention is necessary and appropriate to protect the public health or the 
envirormient. In addition, the office has been heavily involved in environmental issues relating to 
the restructuring of the electric generation industry, facility siting reform, and energy efficiency 
standards. 

A. Facility Licensing . 

Deerfield River Hydroelectric Project The Federal Energy Regulatory Commission 
(FERC) rejected a number of water quality conditions contained in the Massachusetts and 
Vermont § 401 water quality certifications for the relicensing of two hydroelectric projects on the 
Deerfield River. We filed a joint petition with Vermont for rehearing arguing that FERC has no 
discretion imder the Clean Water Act to exclude state § 401 conditions from these 40 year 
licenses. 

In a related proceeding, we intervened in a Vermont administrative appeal of the water 
quality certification (WQC) that Vermont had issued for one of the Deerfield River hydroelectric 
projects. Our intervention was based on concerns that changes to Vermont's WQC and the 
operation of the project could cause flooding in Massachusetts and result in violations of the 
Commonwealth's water quality standards. We agreed to dismissal of the appeal when a settlement 
was reached. New England Power Co., the licensee, agreed to place permanent conservation 
restrictions on 1500 acres of project lands along the Deerfield in Massachusetts. 

B. Energy Restructuring - Department of Public Ufilities. 

Along with Regulated Industries, EPD participated in reaching agreements with three 
major Massachusetts electric companies, the New England Electric System, Boston Edison and 
Eastem Utilities, that would reduce the cost of power to all classes of ratepayers while greatly 
improving air emissions output. As approved by the DPU, the NEES agreement requires that 
company to reduce, by 2010 its total power plant emissions of nitrogen oxide and sulfur dioxide to 
meet the stringent new standards for power plants. The agreement also benefits the environment 
by incorporating on-going funding for demand-side management activities, including 
conservation, and for the stimulation of development of clean renewable energy sources. The 
BEG and EUA settlement are similar to the NEES deal, but are yet to be approved by the DPU. 

C. Northeast Clean Air Compact Proposal . 

On December 3, 1996, Attorney General Harshbarger sent a proposal to the governors of 
the twelve northeastern states urging them to form a "Northeast Clean Air Compact" to combat 
polluted air that blows into the region from the Midwestern states. This interstate compact would 
allow states that comply with strict air pollution standards to ban the importation of power from 
out-of-state sources that do not adopt such standards. Alternatively, the downwind states, such as 



237 



the New England States, could add a surcharge to the price of imported power from the Midwest. 
The surcharge money would then be distributed to in-state ratepayers or to clean air funds to pay 
for further air pollution reductions. In a related coordinated effort, we have been working closely 
with other Northeastern states in developing a petition to be filed pursuant to section 126 of the 
federal Clean Air Act to require EPA to address the problem of interstate air pollution blowing 
into Massachusetts from upwind states. 

D. Energy Facility Siting Reform . 

We presented oral and written testimony to the Joint Committee studying siting and 
offered our version of what should be included in a bill to ensure maximum environmental 
protection in the context of a restructured energy supply system. 

E. Appliance Standards 

We led a four-state effort to encourage the U.S. Department of Energy (DOE) to 
implement tough, new efficiency standards for refrigerators and freezers. Along with the 
Attorneys General of Maine, Connecticut, and Rhode Island, we filed comments with the DOE 
urging it to promulgate the standards that had been collaboratively agreed to by a coalition of 
appliance manufacturers, utilities, environmental groups, and state agencies in 1994. 
Implementation of the standards would save, over the next twenty years, $20 billion for consumers 
and avoid the need for eight 500-megawatt baseload power plants. 

VI. Defensive Cases 

One of the critical fimctions of the Attorney General's Office is the defense of lawsuits 
challenging the regulatory and enforcement actions of state environmental offcials and agencies. 
These cases, which involve numerous challenges to state permitting decisions, as well as 
challenges to the legality of state environmental regulations, include the following cases: Seipel v. 
Commonwealth and Rigney v. Commonwealth (settlement agreements filed in these defensive 
Title 5 cases brought to challenge DEP's denials of variances for each plaintiffs proposed septic 
system; under each agreement, DEP approved a newly designed system, more protective of the 
environment than the system originally proposed); Conservation Law Foundafion v. Struhs (we 
successfully argued that the Court lacked jurisdiction to hear plaintiffs complaint alleging that 
issuance of a permit to allow construction of a outdoor parking lot in Chinatown violates the 
Boston parking freeze, after which CLF agreed to drop the case); Allua v. Department of 
Environmental Protection (successful defense of DEP permitting action regarding a landfill mining 
project at the Fairhaven landfill); Bazilia v. Secretary of Executive Office of Environmental 
Affairs (challenge to decision to require an environmental impact report); Town of Foxborough v. 
Coxe (challenge to decision that Amtrak need not prepare a supplemental environmental impact 
report to further study noise and safety impacts of the high speed rail electrification project); Legal 
Sea Foods. Inc. v. Daniel S. Greenbaum (challenge to administrafive order prohibiting the 
company from using water from its non-municipal well in Allston for various "human 
consumption" purposes, including making ice to chill the restaurant's fish products resolved 
through convincing plaintiff to agree to decommission the water well, thus refraining from using 
the well-water for any purpose); Goldman v. Department of Environmental Protection (successful 
defense of state authority to require applicants to pass a written examination as a condition of 
licensure of licensed hazardous waste clean-up professionals, even though its statute does not 



238 



specifically reference an exam); Zora Enterprises v. Department of Environmental Protection 
(successful defense of regulatory takings claims brought by a Marion developer); William Connor 
& Geochem. Inc. v. PEP (successful defense of DEP revocation of hazardous waste storage 
license for failure to pay annual compliance assurance fees); TMS Mortgage. Inc. v. Department of 
Environmental Protection (successful defense of denial of reimbursement to party who performed 
a site cleanup after receiving a "notice of responsibility"); Douglas Environmental Associates v. 
DEP (defense of decision to deny plaintiff a permit to build a 1500 ton-per-day landfill on 125 
acres of woodland bordering the Douglas State Forest); Cambridge v. DEP (defense of decision 
to issue a Chapter 91 license for the Charles River Crossing component of the Central 
Artery /Timnel Project). 

VII. New Legislation 

In addition to our work on brownfields legislation and energy facility siting legislation 
discussed above, we filed testimony in support of S. 1678/H. 2457, the "Updated Bottle Bill." The 
bill would, among other things, broaden the definition of beverages to require refundable deposits 
for many widely used drink containers, such as those for sport drinks, iced tea, and juices, to 
discourage littering and encourage reuse/recycling. 

VIII. Significant Hearings. Amicus Briefs, etc. 

Support for New Clean Air Standards . On January 4, 1997, we presented oral and written 
testimony in support of EPA' s proposal to amend its national ambient air quality standard for 
ozone and to promulgate a new such standard for "fine particulates" (small particulates that lodge 
deeply in the lungs). The new standards are expected to produce major health benefits. 

We filed an amicus brief in Daddario v. Cape Cod Commission . The Commission denied 
the plaintiffs application for a permit to construct a sand and gravel mine. The Land Court found 
that the denial constituted a taking. The Commission appealed and obtained direct appellate 
review in the SJC. The SJC recently overruled the Land Court and declared the Commission's 
actions not to be a taking. 

The Commonwealth joined 12 other states in filing a amicus brief in General Electric v. 
United States Department of Commerce, in support of the Natural Resource Damage Regulations 
issued by the National Oceanic and Atmospheric Administration under the Oil Pollution Act. 

Massachusetts and a number of other states filed an amicus brief in American Rivers. Inc. 
V. Federal Energy Regulatory Conmiission arguing that FERC had no authority to reject water 
quality conditions contained in Vermont's water quality certifications for the relicensing of three 
hydroelectric projects. 

We joined a amicus brief in support of North Carolina in North Carolina v. Federal 
Energy Regulatory Commission . D.C. Circuit, a case involving a hydroelectric project which is 
located in both Virginia and North Carolina. At issue is FERC's determination that large water 
withdrawals from the project reservoir in Virginia did not entitle North Carolina to issue a section 
401 water quality certificate under the Clean Water Act. We argued that North Carolina, not 
FERC, should make the determination as to whether the change in the project operation adversely 
affects water quality in North Carolina. 



239 



We intervened on the side of the Interior in Kennecott Utah Copper Corporation v. 
United States Department of the Interior . D.C. Circuit. The court issued a ruling largely upholding 
natural resource damage assessment regulations promulgated by the Department of the Interior 
under the Superfund law. Tlie court denied the industry's petitions except with regard to a 
regulation setting forth the Interior's interpretation of the statute of limitations and a rule regarding 
calculation of damages. 

We prepared a public information pamphlet on the complicated law of beach access. The 
pamphlet, which attempts to explain in simple language the rights of those seeking to enjoy the 
many miles of the Massachusetts shoreline and beaches and the rights of coastal property owners, 
was widely distributed to coastal communities and was published on the internet. 



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THE WESTERN MASSACHUSETTS DIVISION 

The Western Massachusetts Division of the Office of the Attorney General, located in the 
State Office Building at 436 Dwight Street, Springfield, is a part of the Executive Bureau. The 
Division is responsible for all legal matters arising in the four western counties, Hampden, 
Hampshire, Franklin, and Berkshire. The Division is staffed by eleven assistant attorneys general, 
three civilian investigators, four paralegals, three Massachusetts State Police Officers, and 
additional support staff. In addition, an attorney and two investigators assigned to the Medicaid 
Fraud Unit are part of the staff. 

The Western Massachusetts Division has defensive and affirmative litigation 
responsibilities and, as well, fields and handles a large number of consumer-related complaints for 
area residents. In addition, the Western Massachusetts Division takes part in a variety of 
community-oriented public safety and quality of life programs and task forces, such as the Drug 
Den Elimination Program, Abandoned Housing Project, and the Springfield City- Wide Violence 
Prevention Task Force. 

Summary of Defensive Litigation 

In the area of defensive litigation, the Western Massachusetts Division defends the 
Commonwealth in administrative law, contract, eminent domain, civil rights, and torts cases. At 
any given time, there are approximately 150 open defensive cases. 

In fiscal year 1997, the following number of new defensive cases, by category, were 
opened: 

Admin. Law Eminent Domain Torts Declaratory Judgment Miscellaneous 

43(51%) 4(4%) 23(27%) 5(5%) 9(11%) 

In fiscal year 1997, 59 defensive cases were closed, either by way of settlement, trial, or 
dispositive motion, for a through-put rate of 1 08%. Four cases were tried before a jury in 
Superior Court. Two Superior Court trials ended injury verdicts for the Commonwealth. One jury 
trial ended by way of a motion for directed verdict in favor of the Commonwealth. One jury trial 
ended by way of a plaintiff s verdict of $30,000. The total amount of money awarded plaintiffs in 
tort, breach of contract, and civil rights lawsuits, either by way of settlement or trial was $530,000. 
The total amount of money awarded plaintiffs in eminent domain cases was $1,149,000. 

Defensive Case Highlights 

(n Malin v. Commonwealth (DMA) 

The plaintiff claimed that her contract and civil rights were violated by the refusal of the 
DMA to pay for dental treatment to correct her TMJ. Notwithstanding the fact that TMJ tt-eatment 
is not a covered benefit, the DMA had exercised its discretion to extend the plaintiff benefits up to 
$28,000. After the plaintiff had been to numerous specialists and the DMA had spent about 



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$13,000, the plaintiff ripped the dental work out of her mouth with a butter knife and sent the 
dental appliance to the DMA in an envelope. The plaintiff proposed a new $50,000-$75,000 
treatment plan by a non-Medicaid provider. The DMA declined the proposal but did continue to 
offer the plaintiff the original plan, provided that the plaintiff continue seeing a psychologist to 
prepare her for the necessary dental therapy and certify that she was ready to receive it. The 
plaintiff rejected the condition and the plan. After a two-day jury trial, the Commonwealth's 
motion for a directed verdict was allowed. 

(2) Haberstroh v. Rosen, et al CDMRy 

The plaintiff claimed that her civil rights were violated when she was demoted as a result 
of her memoranda detailing her concerns with the Monson Development Center's programs. After 
considerable trial preparation and protracted settlement discussions took place, the plaintiff agreed 
to a settlement of $175,000, which included attorney's fees. This figure represented a considerable 
savings to the Commonwealth because it avoided significant litigation costs (four special assistant 
attorneys general were appointed so as to avoid any conflict of interest arising fi"om our 
representation of numerous defendants). 

(3^ Cardinal v. Nordberg rPET) 

The plaintiff claimed in this case that she was bypassed for several positions within DET 
because of her gender and that she was transferred to a distant office in retaliation for having made 
a MCAD complaint. After a multi-day trial, a defense verdict was returned. 

(4) Moriartv v. DSS 

This case began as a medical malpractice case against four doctors. The plaintiff was 
brought to the hospital following an automobile accident in his foster parents' car. The doctors 
failed to detect that a piece of glass, which was quite obvious on the X-Ray, remained in the 
plaintiffs eye. As a resuft, the plaintiff suffered a detached retina and ultimately, lost the vision in 
his eye. The doctors impleaded DSS, alleging that DSS should have more diligently pursued 
follow up visits to the eye doctor. After protracted discovery and an all day mediation, the case 
settled for $400,000. The Commonwealth's share was $13,050, of which almost $10,000 was a 
waiver of the Medicaid lien and some of which, will be reimbursed pursuant to a DSS insurance 
policy that was in effect at the time of the accident. 

(5) Coppollino V. Commonwealth (Berkshire County Community College) 

The plaintiff claimed that he hurt his thumb when he caught it between the weight bar and 
another sharp-edged piece of the apparatus while working out in the college gym. The Superior 
Court allowed the Commonwealth's motion for summary judgment on the ground that the claim 
was barred by the recreational use statute. 



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Summary of AfFirmative Litigation 

In the area of affirmative litigation, the Western Massachusetts Division prosecutes pro- 
active civil rights, consumer protection, and criminal cases. In fiscal year 1997, an average of 28 
civil affirmative litigation cases was open at any given time. In fiscal year 199, 31 civil 
affirmative litigation cases were closed. In addition, approximately 35 investigations were opened 
and closed without litigation. 

Affirmative Case Highlights 

m AT&T 

It was alleged AT&T, together with Safe-Tech, committed multiple unfair and deceptive 
trade practices in connection with the sales and servicing of home security systems. This office 
fielded 90 complaints, many from elders. After protracted negotiations spanning many months, 
the case was settled for $240,000, to be distributed among the plaintiffs, and a $100,000 - Local 
Consumer Aid Fund (LCAF) contribution. 

(2) Go Travel 

As a result of numerous complaints brought to this office about a travel agency which 
took money but did not deliver trips, this office sued the company and its principal, ultimately 
obtaining a consent judgment that bans the principal from the fravel business for life and 
restitution (in the companion criminal case) of $149,853. 

(3) Attorney General v. Hampden County Commissioners 

In this Superior Court case, the HCC is alleged to have violated the open meeting law and 
other laws. The Superior Court entered a judgment that reads like a consent decree. In essence, 
the HCC agreed to abide by the Open Meeting Law. Because the HCC committed new violations, 
a contempt complaint regarding the same subject matter has been filed. 

Summary of Criminal Litigation 

In the area of criminal litigation, the Westem Massachusetts Division prosecutes a variety 
of cases, ranging from bank fraud, public integrity, credit card fraud, and attomey defalcation to 
narcotics and illegal weapons cases. In fiscal year 1997, 22 criminal cases were disposed by way 
of guilty pleas. In the fiscal year 1997, 18 indictments were returned by the Grand Jury 
against three defendants. 



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Criminal Case Highlights 

(\) Commonwealth v. Gary Heller 

The defendant was an attorney (since disbarred), who embezzled approximately $200,000 
from his clients who had retained him in connection with the refinancing of their homes. The 
attorney would take the payoff check, deposit it into his own account, and then continue to make 
monthly payments on the first mortgages in the names of his clients. His scheme was discovered 
when one of the homeowners sought a home equity loan and was refused on the groimd that there 
were already two outstanding mortgages on her home. The attorney was sentenced to a three year 
House of Correction term. The title insurance company paid off the first mortgages of two of the 
three homeowners. The defendant was ordered to pay restitution of approximately $40,000 to the 
remaining homeowner. 

(2) Commonwealth v. Stewart 

This was an insurance fraud case involving interesting legal issues as to the meaning of 
"materiality" for purposes of the fraud statute. The defendant claimed that since his insurance 
company would have paid the claim whether or not he was involved in an accident, his false claim 
that he was in an accident was not "material." After a jury-waived trial, defendant was found 
guilty and sentenced to an 18 month House of Correction term. 

The three assistant attorneys general and three state troopers assigned to the Western 
Massachusetts Division are involved in numerous intensive investigations and prosecutions and 
will continue to pursue these cases with diligence and expertise. 

The Western Massachusetts Division will continue to provide the residents of western 
Massachusetts with access to their state government and will continue to provide state 
governmental agencies with the highest quality legal representation. 



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No. 96/97-1 
August 29, 1996 



The Honorable William Francis Galvin 
Secretary of the Commonwealth 
One Ashburton Place, Room 1 705 
Boston, N4A 02108 

Dear Secretary Galvin: 

You recently transmitted to me a series of proposed ballot questions and requested my 
opinion whether these questions are one of "public policy" within the meaning of G.L. c. 53, § 19 
(1994 ed.) and, if so, what simple, unequivocal and adequate form is best suited for presentation of 
these questions on the November 1996 ballot. 1 have received the proposed questions and have 
concluded that, with one exception, 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^, 1990-91 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. 12 at 102 (1988). It is sufficient to 
say that each 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. With one exception, each of the questions proposed here meets these standards. 

The excepfion is a question proposed for the First Franklin and Second Hampshire 
representative districts, identical to one rejected by my predecessor as Attorney General in 1988 



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and almost identical to one rejected by him in 1990, that provides (with emphasis in the original) 
as follows: 

In biological terms , when does an individual human life begin? 

Mark a cross "X" in the square next to the answer you prefer. Only vote for one. 

□ A. Conception. 

D B. Viability. 

a C. Birth. 

D D. Write-in: Specify a different biological term 



This same question was proposed in 1988 and was determined by the Attorney General not to be 
appropriate for presentation on the ballot as a question of public policy. See 1988-89 Op. Att'y 
Gen. No. 1 at 104-06. That determination was challenged in court in a suit against the Attorney 
General and the Secretary, and the Supreme Judicial Court declined to overturn or even review the 
determination, adhering to the longstanding rule that "the Attorney General's decision, in the 
absence of bad faith, is final." New England Christian Action Council. Inc. v. Secretary of the 
Commonwealth . 403 Mass. 671, 673 (1989) (citing Thompson v. Secretary of the Commonwealth . 
265 Mass. 16, 19 (1928)). Two years later, the Attorney General disapproved another, slightly 
different question concerning when an individual human life begins. 1990-91 Op. Att'y Gen. No.l 
at 82. 

The principal basis for the Attorney General's 1988 ruling was that the question was not 
phrased as, and did not purport to provide, an instruction to a legislative representative regarding 
governmental action. Indeed, the question did "not indicate whether any governmental action at 
all is contemplated," and it "fail[ed] to notify voters what public policy, if any, would be changed 
or established by a representative seeking to follow their instruction." Id. at 105. Providing such 
instruction "is fundamental to properly posing a 'question of public policy' under Massachusetts 
law," specifically Article 19 of the Massachusetts Constitution's Declaration of Rights and G.L. c. 
53, § 19. 1988-89 Op. Att'y Gen. No. 1 at 105. This principle was followed again in 1990 when 
my predecessor disapproved a question concerning a local traffic safety issue on the ground that 
the question did not concern any proposed action by the state Legislature. 1990-91 Op. Att'y Gen. 
No.l at 81-82. 

The 1988 question concerning when an individual human life begins was also determined 
to be flawed because, unlike any other public policy question that had ever appeared on the ballot 
under G.L. c. 53, § 19, it did "not allow for affirmatively voting that no instruction on this issue 
should be given." 1988-89 Op. Att'y Gen. No. 1 at 105-06 8c n.8 (emphasis in original). This 
principle was again followed in 1 990 when another, slightly modified question concerning when 
an individual human life begins was rejected by my predecessor on the ground that "a multiple 
choice question which fails to allow voters to reject entirely any instrucfion to their legislator on 
the subject of the question [] is impermissible." 1990-91 Op. Att'y Gen. No.l at 82. 



246 



Attorneys General have historically been extremely reluctant to depart from the legal 
opinions of prior Attorneys General. When an Attorney General is asked to revisit an earlier 
opinion, that opinion "is entitled to great weight and is subject to reversal only if there has been a 
substantive change in the law, or if the original interpretation was clearly erroneous." 1979-80 
Op. Att'y Gen. No. ll. Rep. A.G. . Pub. Doc. No. 12 at 120 (1980); see 1978-79 Op. Att'y Gen. 
No. 21. Rep. A.G. . Pub. Doc. No. 12 at 131 (1978). I see no reason to depart from the earlier 
determination, left undisturbed by the Supreme Judicial Court in 1988 and followed in 1990, that 
the proposed question concerning when an individual human life begins is not a question of public 
policy under G.L. c. 53, § 19 and therefore may not appear on the ballot. I note, however, as did 
my predecessor in 1990, that in light of the Attorney General's 1988 determination, "the rejection 
of the question on this ground was . . . entirely foreseeable" and that "the requirements for public 
policy questions do not prohibit a properly posed public policy question that involves a theory of 
when life begins." 1990-91 Op. Att'y Gen. No.l at 83 n.lO (emphasis added). 

I conclude that each of the other 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 Barnstable, Second Barnstable, Fourth Barnstable, First Berkshire, Second 

Berkshire, Fourth Berkshire, First Bristol, Seventh Bristol, First Essex, Seventh 

Essex, Second Franklin, Second Hampden, Fourth Hampden, First Hampshire, 

Second Hampshire, Third Hampshire, Thirteenth Middlesex, Fifteenth Middlesex, 

Sixteenth Middlesex, Twenty-Seventh Middlesex, Twelfth Norfolk, 

Twelfth Suffolk. Nineteenth Suffolk, and Thirteenth Worcester Representative Districts 

Shall the state representative from this district be instructed to vote in 
favor of legislation that: 

• Limits spending on political campaigns; 

• Removes the influence of contributions by large donors; and 

• Creates a level playing field for candidates and voters. 

By providing the option of public financing to candidates who agree to 
strict spending limits?' 

Third Berkshire 

Shall the state representative from this district be instructed to vote in 
favor of legislation providing that restaurants must designate at least 
60% of their seating capacity as a non-smoking area but may designate 
up to 40% of their seating capacity as a smoking area if the restaurant 



' In the Second Franklin, Second Hampden, and Fourth Hampden districts, the last 
phrsae should read "candidates who agree not to accept or spend any private money?" 



247 



ventilation meets code requirements and signs indicating smoking and 
non-smoking sections and capacity are prominently displayed? 

Fifth Hampden 

Shall the state representative from this district be instructed to vote in 
favor of a rule requiring bills to be in print for at least 24 hours before 
consideration by the House of Representatives? 

Fifth Hampden 

Shall the state representative from this district be instructed to vote in 
favor of a rule requiring any bill relative to taxation to be on the 
legislative calendar for at least seven days before being passed by the 
House of Representatives? 

Third Berkshire. Fourth Berkshire 

Shall the state representative from this district be instructed to vote 
against legislation enabling the merger of Berkshire Medical Center 
and Hillcrest Hospital of Pittsfield? 

Tenth Middlesex. Twelfth Middlesex 

Shall the state representative from this district be instructed to vote in 
favor of a bill to reduce the size of the Newton Board of Aldermen 
from 24 members to 16 members?^ 



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 (1994 ed.). These requirements involve factual 
determinations which are more appropriately made by you as Secretary of the Commonwealth. I 



^ This question may approach the limit of the principle followed by my predecessors that 
"[e]ven when a question appears to affect a small geographic area, if the problem it addresses is 
one of concern to the Commonwealth in general, the question may be considered one of public 
policy." 1988-89 Op. Att'y Gen. No. 1 at 103 (citing prior Opinions). But "[i]t has rarely been 
concluded that a matter is solely of local concern." Id.; see id. at 104 n. 5 (citing approval of 
earlier locally-focused questions). I also note that a similar question, concerning legislation 
affecting the size and make-up of the Boston City Council, was approved in 1980. 1980-81 Op. 
Att'y Gen. No.6, Rep. A.G. . Pub. Doc. No. 12 at 1 1 1. Other questions seeking to instruct 
legislators on issues of local governmental structure have also been approved. 1990-91 Op. Att'y 
Gen. No. 1 at 78 n.2, 84. I therefore approve this question. 



248 



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 



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