(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

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

Public Document 



No. 12 




©rfe Cnmmnnftreaitij nf jHassacrjusdls 



Report of the 

Attorney General 

for Fiscal Year 2001 

July 1, 2000 - June 30, 2001 




40M3 i of this Document Approved by Philmore Anderson III, State Purchasing Agent. 

467 

i Publication Number 1 8759-250-700- 1 1 /02-4. 57-Docuprint 



Public Document 



No. 12 




Wc\t (ttnmmnttftreaiilj of ^assaxljusetts 



Report of the 

Attorney General 

for Fiscal Year 2001 

July 1, 2000 - June 30, 2001 




Publication of this Document Approved by Philmore Anderson III, State Purchasing Agent. 
Publication Number 18759-250-700-1 1/02-4.57-Docuprint 



^v 




Thomas F. Reilly 
ATTORNEY GENERAL 



The Commonwealth of Massachusetts 
Office of the Attorney General 

One Ashburton Place 
Boston, Massachusetts 02 1 08- 1 698 



In accordance with the provisions of Section 11 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, 2000 to 
June 30, 2001. 



Respectfully submitted, 



7 



Thomas F. Reilly 
Attorney General 



TABLE OF CONTENTS 

ASSISTANT ATTORNEY GENERAL APPOINTMENTS i 

BUDGET OVERVIEW v 

EXECUTIVE BUREAU 1 

Office of the Legal Counsel 3 

Human Resource Management Office 4 

External Affairs Division 7 

Information Technology Division 8 

Budget Office 10 

Operations Division 10 

Communications Office 11 

BUSINESS AND LABOR PROTECTION BUREAU 15 

Fair Labor & Business Practices Division 1 5 

Insurance & Unemployment Fraud Division 23 

Medicaid Fraud Control Unit 30 

COMMUNITY-BASED JUSTICE BUREAU 41 

Victim Compensation & Assistance Division 54 

Safe Neighborhood Initiative Division 57 

CRIMINAL BUREAU 71 

Appeals Division 72 

High Tech & Computer Crime Division 76 

Public Integrity Division 80 

Victim/Witness Assistance Division 84 

Special Investigations & Narcotics Division 89 

Economic Crime Division 96 

Environmental Crimes Strike Force 105 

Financial Investigation Division 109 



TABLE OF CONTENTS 



GOVERNMENT BUREAU 1 17 

Administrative Law Division 120 

Trial Division 130 

PUBLIC PROTECTION BUREAU 141 

Civil Rights & Civil Liberties Division 142 

Consumer Protection & Antitrust Division 150 

Mediation Services 156 

Environmental Protection Division 159 

Investigations Division 168 

Division of Public Charities 172 

Regulated Industries Division 181 

REGIONAL OFFICES 205 

Western Massachusetts 205 

Central Massachusetts 213 

Southeastern Massachusetts 220 

APPENDIX follows page 223 



APPOINTMENTS 



Fiscal Year 2000 (July 1, 2000 -June 30, 2001) 

OFFICE OF THE ATTORNEY GENERAL 

ATTORNEY GENERAL - THOMAS F. REILLY 

FIRST ASSISTANT ATTORNEY GENERAL - DEAN RICHLIN 

CHIEF OF STAFF - JEFFREY SHAPIRO 



Ann Ackil 
Dorothy Anderson 
David Andrews 
Linda Andros 
Marion Antonucci 
James Arguin(l) 
Michael Atleson 
Frederick Augenstern 
Steven Baddour 
EvaBadway(ll) 
Lori Balboni (3) 
Thomas Barnico 
Jason Barshak 
Mary Elizabeth Basile (55) 
R. David Beck 
Annette Benedetto 
Barbara Berenson 
Matthew Berge 
Anne Berlin (3 1 ) 
Crispin Birnbaum 
Nancy Bloomberg (2 1 ) 
William Bloomer 
Edward Bohlen 
WilnerBorgella 
Jenifer Bosco (8) 



ASSISTANT ATTORNEYS 
John Bowen 
Martha Bower 
John Bowman 
Matthew Brock 
Kimberly Brooks (54) 
Matthew Buehler 
Ranjana (Chand) Burke 
Romeo Camba 
Jesse Caplan 
Sandra Cardone 
Eric Carriker 
Eugenia Carris 
James Caruso, Jr. 
Aloke Chakravarty 
John Christin, Jr. 
James (Jay) Clark (17) 
Peter Clark 
Stephen Clark 
Alexander Cochis (9) 
Richard Cole 
Joanna Connolly 
Rosemary Connolly 
Margret Cooke (18) 
Patricia Correa 
Arlie Costine-Scott 



GENERAL: 

Pierce Cray 
JohnCrimmins 
John Curseaden 
William Daggett 
Norman D ' Amours (4 1 ) 
Pamela Dashiell 
Gerald D'Avolio Jr. 
George Dean (6 1 ) 
Edward Deangelo (59) 
Thomas Dee (5) 
Irene Delbono (56) 
Linda Delcastilho 
Stephen Dick 
Kristen Dionisi 
Joseph Driscoll (28) 
Anne Edwards 
Kirsten Engel (4) 
Barbara Fain 
James Farrell 
Daniel Field 
Freda Fishman 
Francis, Jr. Flaherty (32) 
Elizabeth Ann Foley 
Mary Freeley 
Elizabeth Frumkin (60) 



APPOINTMENTS 



Cynthia Gagne 
Rafael Garcia 
DanaGershengorn 
Marianne Geula (9) 
Suzanne Glick Gilfix (57) 
Salvatore Giorlandino 
I. Andrew Goldberg 
Caryn Gordon 
Richard Gordon 
Eliot Green 
Catherine Greene 
Hannah Greenwald (2) 
John Grossman 
JohnGrugan(39) 
Daniel Hammond 
JohnHanrahan(H) 
Nancy (Betsy) Harper 
Katherine Hatch 
Ladonna Hatton (42) 
Janice Healy 
Michael Hering (38) 
Hilary Hershman ( 1 5) 
Muriel Hervey 
JohnHitt(46)(30) 
Bart Q Hollander 
Pamela Hunt 
Marsha Hunter 
Carol Iancu 
Matthew Ireland 
Marcia Jackson 
Maria Hickey Jacobson 
Jocelyn Jones (8) 
Michelle Kaczynski 
Stephanie Kahn 



Judy Kalman 
Glenn Kaplan 
Jamie Katz 
David Kerrigan 
Karen Kleiman (52) 
Mark Kmetz 
Pamela Kogut 
NickKosiavelon(lO) 
Siu Tip Lam 
Judith Laster (23) 
Andrew Latimer 
Kelli Lawrence 
Angela Lee 
Peter Leight 
Gerard Leone, Jr. 
Madeline Leone (8) 
Martin Levin (33) 
Carolyn Long (16) 
Stephanie Lovell (7) 
JacintaMa(37) 
Glenn Mackinlay (48) 
Anita Maietta 
Maria Makredes 
M.ToniMaloney 
David Marks 
Laura Marl in 
Laura Maslow-Armand 
Dean Mazzone (29) 
Catherine Mcclure (52) 
Timothy Mcdonough 
Philip Mcgovern 
Constance Mcgrane 
Marianne Meacham (47) 
William Meade 



Elisabeth Medvedow (45) 
Pamela Meister 
Beth Merachnik 
Howard Meshnick 
Nicholas Messuri 
James Milkey 
Alexandra Moffatt( 12) 
PaulMolloy(6) 
Brian Monahan (9) 
David Monahan 
Alice Moore 
Mark Muldoon 
Mark Mulligan 
David Nalven 
Cathryn Neaves (24) 
Amy Nechtem (17) 
Eileen O'Brien 
James O'Brien 
Thomas O'Brien 
James O'Connell (49) 
JohnO'Leary 
Erin Olson (35) 
MaryO'Neil(19) 
William O'Neill (24) 
James Paikos (53) 
Donna Palermino 
Emily Paradise 
William Pardee 
Holly Parks (9) 
Margaret Parks 
MaiteParsi(lO) 
M. Julie Patino 
Robert Patten 
Peter Paulousky 



APPOINTMENTS 



Susan Paulson 
Anthony Penski 
Mary Phillips 
Mary (Polly) Phillips (10) 
William Porter 
Anne Powers (25) 
Stephen Prunier 
Christopher Quaye 
Jason Queenin 
Robert Quinan 
Karlen Reed 
William Reynolds 
Juliana Rice 
Dean Richlin 
Robert Ritchie 
Lena Robinson 
Beverly Roby 
Anthony Rodriguez 
Joseph Rogers 
Deirdre Rosenberg 
Julie Ross 
Amy Royal (17) 
Mary Ruppert 
Peter Russell (27) 
Frank Russo (9) 
Peter Sacks 
Ernest Sarason 
Kurt Schwartz 
Jeffrey Shapiro 
AmySharff(40) 
Matthew Shea 
Timothy Shea (34) 
Patricia Siefer (22) 
AdamSimms 



Ginny Sinkel 
Johanna Sorts 
Amy Spector 
Carol Starkey 
Deborah Steenland 
Catherine Sullivan 
MarkSutliff 
James Sweeney 
Diane Szafarowicz 
Daniel Szostkiewicz (43) 
John Talbot (13) 
Pamela Talbot (58) 
Rosemary Tarantino 
Neil Tassel 
Danah Tench 
Louisa Terrell 
Steven Thomas 
Linda TomaseUi 
Marini Torres-Benson 
Bruce Trager 
HungTran(59) 
Thomas Ulfelder 
Teri Williams Valentine 
Dorothy Varon (51) 
Linda Wagner 
Teresa Walsh 
Pamela Wechsler 
Peter Wechsler 
William Weinreb (36) 
Richard Weitzel (26) 
Karen Wells 
KimberlyWest(8) 
James Whitcomb 
Doris White 



Jonathan White 
Judith Whiting(ll) 
Betsy (Sawyer) Whittey 
Geoffrey Why (28) 
JaneWilloughby 
Howard Wise (44) 
Nathanael Wright (2) 
Chi Chi Wu (50) 
Charles Wyzanski 
HermenYee(20) 
Judith Yogman 
Karla Zarbo 
Catherine Ziehl 



APPOINTMENTS 



APPOINTMENT DATE 



TERMINATION DATE 



(1) 


7/17/00 


(31) 


7/3/00 


(2) 


7/31/00 


(32) 


7/7/00 


(3) 


8/7/00 


(33) 


7/10/00 


(4) 


8/14/00 


(34) 


7/31/00 


(5) 


8/21/00 


(35) 


8/4/00 


(6) 


9/1/00 


(36) 


8/22/00 


(7) 


9/3/00 


(37) 


9/30/00 


(8) 


9/5/00 


(38) 


11/10/00 


(9) 


9/1 1/00 


(39) 


1 1/14/00 


(10) 


9/25/00 


(40) 


1 1/24/00 


(ID 


10/2/00 


(41) 


1 1/25/00 


(12) 


10/3/00 


(42) 


12/1/00 


(13) 


10/16/00 


(43) 


1/2/01 


(14) 


10/23/00 


(44) 


1/7/01 


(15) 


10/30/00 


(45) 


1/16/01 


(16) 


11/13/00 


(46) 


2/7/01 


(17) 


11/27/00 


(47) 


2/9/01 


(18) 


12/24/00 


(48) 


2/16/01 


(19) 


1/2/01 


(49) 


2/23/01 


(20) 


1/8/01 


(50) 


3/2/01 


(21) 


1/29/01 


(51) 


3/16/01 


(22) 


1/30/01 


(52) 


3/30/01 


(23) 


2/5/01 


(53) 


5/4/01 


(24) 


2/12/01 


(54) 


5/11/01 


(25) 


3/19/01 


(55) 


5/25/01 


(26) 


4/2/01 


(56) 


6/2/01 


(27) 


4/15/01 


(57) 


6/14/01 


(28) 


4/30/01 


(58) 


6/15/01 


(29) 


5/7/01 


(59) 


6/22/01 


(30) 


6/4/01 


(60) 


6/29/01 






(61) 


6/30/01 



BUDGET OVERVIEW 



2 _i 



ft 



8< 



3 C3 

o en 

3 u 



F t 
w z 

Z => 

go 

< 



z 

Q 
< 

z CO 

o 

_ z 

g Q 

on lu 

3R 
? § 

tf> CL 
LU 

H 



V) 

?z 

LU O 

o a 

PS 

3 or 



O- 

O z 

o o 



Is 



BUDGET OVERVIEW 



O O 



3 

<8 

CO o 

cr 

^£ 
co - 



O I 

o o 
a o 

LU LU 
3 < 

O E 

el 

co O 



O £ 

go 



o 
a: co 

d 2 

Q. 

a: tr 
y O 
<" 

5 



f= > 
o < 



BUDGET OVERVIEW 



£ 



BUDGET OVERVIEW 







z 




3 








< 


o 
o 


1- 
Z 
LU 

< 


1 

5 




CO 


Q 




(T 




111 




1- 




Z 





BUDGET OVERVIEW 







co 


CM 

o 


o 


5 













CD 


•* 




y> 


as 








o 


■*" 


co 




m 


en" 








c 


r» 


FS 




-o 


* 








JS 


















CO 


















DO 




















s 


CD 
C7> 


o 
o 


co 

CM 


g 












CO 


o 










l 


CO 
CM 


CO 


s 

CM 


LO 

co 


CM 

CM 

in 








Q- 




































UJ 




















o 


o 


§ 


CM 


CM 










o 


o 


*- 










C 


o 


o 


o 


o 


o 








.2 
I 


o 
o 


o 
o 


8 

CM 


CM 

CM 
CM 


CM 
LO 






1 






















LU 
















> 


















F 














h- 


L. 


g 














5 


o 


z 














< 


LU 








to 


,_ 






z 


O 


F 






1- 
z 


o 

o 




CD 


w 

5 


DC 


_i 
< 




g 


3 


IT 
ft 




£ 

CO 

Z 


O 


CO 


LU 
I 




z 


_l 


> 




1E 


h- 

w 
z 
< 
o 
< 


* 




o 


i 

iu 

Q 
HI 
IL 


_l 
< 
O 

w 
u. 




■3 
O 

1 


CO 

o 
z 
a 

HI 


z 
D 

o 


Q 


_l 

p 








111 
o 

z 


o 





LU 
LU 

co 













a. 

LU 


F 1 

CO 
LU 


D 
z 
< 










> 

Q_ 


E 


o 


a 












3 


CC 


LU 










O 

> 


§ 


LU 








§ 


CM 




CO 


oo 








1 




CM 


3 


en 








1 

o 


o 
o 
o 


o 

8 


co 






















5 


oo 


CO 


CO 








a 


o 


o 


o 


o 








< 
















i 
















> 


















o 


o 


o 


o 








i 


o 


o 


a 


o 










CM 


CM 


CM 






a 














tl 













BUDGET OVERVIEW 



IT) 


c/5 


Q 


cc 

5 


c 


a 


u* 


S 






V5 


S 


1 


p 


(-0 


5 


c/i 


t/j 




H 




CU 








w 




U 









« 


oo 

CO 

r- 


o 
o 

s 


o-> 

00 

oo 
IO 

o 
co 


CM 
CO 


g 
55 


CD 


o 
CD 


CM 
O 
CO 
CO 
CO 


8 

CO 
CD 


g 

o 

cm' 


r- 
00 
CM 


S8 

o 


8 
CO 

r~" 


s 

CM 
CM 


CO 


CD 
CD 


CM 
ro" 


00 

Id 


CO 
CD 


CM 
CO 

o 

cm" 




in 

CD 
CO 




ai 


o 


in 




o 


o 


O 


o 


CO 

i 


O 


o 


O 


o 


o 


O 


O 


O 


o 


o 


o 


o 


o 


o 




s 

I 
1 


s 

co 
P 


5 

o 


oo 

CO 

co 

o" 

s 




o 
m 
oo 


s 

co" 


o 
K 
oi~ 


o 

en 

r-- 

iri 

CD 
CM 


o 

g 

CD 


o 

§ 

CM 


00 
CM 


oo 
oo 
o 


CD 

CD 


CO 
CD 
CM 
CM 


CO 


CD 
CD 


CM 

o 

CO 
CO 


CO 

m 




o 
cm" 


s 

in 


in 

CD 

00 


CO 

o 

z 

LL 

HI 
CO 

z 

HI 

a. 
co 

CO 


CO 

K 
Z 
LU 

s 

UJ 
CO 
K 

3 
CO 

5 

UJ 

or 

•D 

c 
ro 
CO 

1- 

Q. 

UJ 

or 


o 
o 

CM 

or 

I 

_J 

< 

<J 

(0 




CO 

I 

z 

c 
p 

1 


il 

a 

z 

ID 

a 

or 
o 

UJ 

a 

co 

or 
< 

i 
o 


_l 
u. 
a 

z 

z 

UJ 

3 
1 

UJ 
LL 

o 

Z 

I 


CM 
CM 

6 

Ol 

z 
O 

< 

> 

o 

r- 

LL 

O 


CD 
CD 


oo 

9 

s 


CD 
CM 

O 

§ 

co 

CD 

3 

8 

H 
LU 

o 
o 

Q 

Z 
3 

o 
o 

o 

< 

LL 

o 

CO 

Q 

UJ 

O 

o 
or 
a 


5 

o 
9 

CD 
CD 

CO 

& 

9 
o 

o 

o 

CM 
*fc 
LU 

co 
< 

o 
a 
to 

2 


LU 
O 
< 

3 
z 

D 

LU 

u 

z 
z 

D 
UJ 

z 

LU 

CD 

> 

LU 

z 
K 

£ 

< 


CO 

0. 
0. 

< 

p 

3 
< 
> 
a, 

?■ 

z 

UJ 

o 
co 

> 

CO 

co 
< 

LL 

o 

o 

o 


< 

co 

Q 

i= 

LU 

or 
< 

CO 

o 

0T 

CO 

> 

CO 

co 
< 

LL 
O 

2 

O 



< 

CO 

D 

&r 

3 
m 

D 

LU 

LU 
O 

3 

or 

CO 

co 

> 

CO 
CO 

< 

LL 
O 

O 
O 


< 

co 
Q 

or 

LU 

z 
I 

CO 

3 

o 

> 

0T 
< 

m 

CO 

> 

oo 

CO 

< 

LL 
O 

O 
O 


H 
LU 
_J 

> 
LU 
I 
U 
D 
z 
O 

< 

a 

co 

> 

co 

CO 

< 

LL 
O 

O 
O 


O 

Z 

oo 

LU 

z 
O 

£ 
co 

3 

a 

CO 

> 

co 
co 
< 

LL. 

o 

O 



O 

Z 

co 

b 

z 
g 

< 

co 

> 

CO 
00 

< 

LL 
O 

O 

o 


CO 
LU 
_l 
< 

co 

o 

3 

LU 

o 

> 

oo 
> 

CO 

co 
< 

LL 
O 

o 
o 


CO 

LU 

< 

CO 

p 

3 
< 

LU 
LU 

< 

CO 

Q 
O 
I 
o 

LU 

or 

LU 

X 

o 
o 
or 
< 

> 

o 
o 


LL 

d 

< 

CO 

> 

_J 

< 

LU 

z 
o 

o 



UJ 

or 

1 

z 
or 

3 
LL 

5 

LU 

i 

CO 

z 

5 
< 

CO 

> 
< 

UJ 

z 
O I- 

88 


< 

r- 
UJ 

of 

(£ 

CO 

z 
|M 

CO 

Q 

_i 

o 

CD 

< 

z 

3 

-> 

F 

CO 

> 

_i 
< 

UJ 

z 
o 

O 

o 


0- 

or 
o 
o 

or 

LU 

I 

co 

> 

< 

r- 
LU 
CO 

L^ 
CO 
< 


O 

z 

> 
O 

or 

LU 
LL 

o 

CO 

z 
o 
co 
co 

CO 

> 
< 

LU 
§ 

z 
o 

8 




1 


o 
o 

i 

o 

§ 


o 

o 
o 

§ 


CM 
O 

o 
o 

§ 


CO 

o 

a 

o 

o 

§ 


1*. 

o 

o 
o 

§ 


00 

o 

o 
o 

§ 


CO 

o 
o 

§ 


CD 

CM 

in 
o 
o 

§ 


CM 
CD 

CO 
CD 
O 

co 

o 


00 

00 
CD 

o 

£ 
a 


r- 

oo 

00 
CD 

o 

oo 
o 


en 

CD 
CD 
O 

00 
O 


CD 
CD 
O 

oo 

o 


CD 

CD 

CD 
O 

oo 
o 


CM 
CD 
CD 
O 

5 
O 


CO 

CD 
CD 
O 

oo 
o 


i 

CO 

o 

i 


CO 

1 

CD 

o 

co 
o 


I 

CO 

o 

00 

o 


CO 

•<* 

oo 

CD 
O 

CO 
O 


8 

CD 

CD 
O 

CO 
O 


CM 

in 

CD 

CD 
O 

00 

o 






1 

s 

1 


o 

o 
cm 


o 

o 


5 

o 

CM 


o 
o 

CM 


5 

o 

C\J 


o 
O 

cm 


o 
O 

CM 


5 

o 

CM 


o 

o 

CM 


o 
o 

CM 


o 
o 

CM 


o 
o 

CM 


o 
o 

CM 


o 
o 

CM 


o 
o 

CM 


o 

o 

CM 


§ 

CM 


S 

CM 


8 

CM 


O 

o 

CM 


o 

o 

CM 


o 
o 

CM 



BUDGET OVERVIEW 



z 

UJ 

co "J - 

Q CO O 

y cc o 

§ D N 
g| S |0| 

SOP 

Silk 

io "^ 
^S 

0. 
LU 

o; 

LU 



5 £ 

li 

O CO 



BUDGET OVERVIEW 



CO 

a 

z 


in 
a. 

Z> 


O 

o 


r- 1 


CD 


rr 


UJ 
CO 

7 


UJ 

or 


§ 


UJ 

a 
if) 

if) 


-a 
c 

TO 
CO 

1- 


< 

o 
co 

LL. 



5 if) 

n 

O z 
o o 






«3 

z ,£ 



1 1 



^ < 

O UJ 



Q 

0. 

< 

X 

Q UJ 

3 z 

"J UJ 

m ° 

< \fi 
Zz" 

£p 

< If) 

o w 

CO CO 

> < 

2 n 2 

O uj !i 



O 

F 

< < „ 

"" F 

?? >- or 

q uj uj 

UJ UJ Q. 



K 2 K 

■■' O ° 

— CO 



O CO 

lli 



?£ 



UJ CO 

z 

UJ < 

z y 

O a: 

If) uj 

or 2 

uj < 



O 

W CO 

> or 



o 
§1 



0T 
-UJ 

~ z 



Q < 

CO \- 

lf) Z 

< UJ 

2 <=> 



if 

> a. 



o 5 

O Q 



o < o£ 



BUDGET OVERVIEW 









0> 

c 
3 

CO 

CO 


cm 


0) 

cd 


CO 


O 

co 

CM 


CO 
CM 
CO 


CO 

CM 

in 


CM 
CM 


O 

o 
o 


O 
CM 


o 
o 
o 


CO 


o 

B 


eg 

CM 

oo" 










ua 


o 


CT> 

8 


o 


o 


O 


o 


O 


o 


O 


o 


o 


o 


o 










8 

I 

I 
o 


CM 


O 

s 

o 


CO 


o 

ro 

CM 


co 

CM 
CO 


co 

CM 

in 


CM 
CM 


§ 

o 

cm" 


O 
CM 


8 

o 


in 

CO 


o 
o 
in 


CO 
CO 
CM 
CO 


8 

z 

U- 

uj 
co 

z 

HI 

a. 

CO 
CO 


CO 

1- 
Z 
LU 

5 

LU 
CO 

a: 

3 
CD 
5 
ED 
K 

13 

C 

ra 
co 

1- 

Q. 
LU 
O 
LU 

or 


o 
o 

CM 

3 

>- 
-1 

< 
o 
w 

u. 




z 

1 
1 


6 

z 

< 

LU 

d 
< 

m 

Q 

o 

=) 

CO 

LU 

z 
to o 

CO < 

CO O 

< J 

2 CO 

fe- 
ll 

O O 

O I 


< 

h- 
UJ 

lu 

Q 

z 

q 

LU 

_l 

< 

0- 

co 

> 

CO 
CO 

< 

LL 
O 

o 
o 


O 

z 

D 

Z 
LU 

CO 
LU 
Z 
< 
CL 

O 
O 
Q 

z 
=> 

CO 

> 

CO 
CO 

< 

LL 

o 

o 



0. 

QT 

o 
o 
o 

z 

Q 

z 
D 

LL 

i 

a. 

6 

co 

> 

< 

LU 

z 
o 

O 

o 


O 

Z 

LU 
LU 

co 
> 
< 

CD 


CD 

Z 

co 

> 

< 

LU 

z 
o 

o 
o 


CO 

D 

d 

Is 

<§ 

* u- 
<£ -j 

LU _l 

Q O 

T S 

CO CJ 

f> 

< -J 

LU LU 

II 

8§ 


CL 

or 

si 

^ m; 

< < 

O 2 

PSr 
88 

co 

CO z 
> CO 

P=S5 

II 
gs 

p 

8e 


0. 

B8 

Q Q 

°a _i 

- LU 
LU 5 

CL<* 

-> z 

_l LU 

Z> D 

< LU 

°- o 

CO z 

M 

Lj co 

< Z 

LU . 
5 < 

z z 

O 2 

3 SE 

O LL 


Q 

z 
< 

of 

LU 
Q 

is 

F co 

LU < 

CO LU 

co - 1 

> CO 

3 2 
5 o 

8E 


d 

z 

1- 

Q 

UJ 

g 

i 

LU 
D 
LU 
LL 
Q 
Z 

8 

LU 
CO 

%* 

< Q 

is 

Si 

2 Q 
O Z 
O < 


D 

Z 

or 

~\ * 

is a. 

o 

i 

^ 0. 

>- LU 

K or 

|S 

- 1 " LU 

co or 
> o 

1 CO 

Li < 
< vr 

LU Ct 

P 

S* 

o > 


< 

co 
S 

0. 

or 
o 
o _, 

is 

H 
si 

CO > 

X LU 
P CO 
«f C 

uj Q 

> LU 

is 

O =1 
o < 


CO 

a 

1 

in 
CO 

Q 

LU 

LU 
O 
O 

a: 
a. 

> 
o 

z 

LU 
Q 
Z 
LU 
0. 
LU 

or 
g 

LU 
LL 

or 
o 

LL 




g 
« 
1 

< 


CO 
CM 

o 
o 

CO 

o 


CM 
O 

O 

GO 

o 


m 
o 
o 

GO 

o 


CD 

o 
o 

CO 

o 


o 

o 

co 
o 


CO 

o 
r>- 
o 

CO 

o 


3 

o 
c- 
o 

CO 

o 


m 

CO 

o 
o 

§ 


o 
o 

§ 


co 

CO 

o 
t~- 
o 

CO 

o 


en 
co 
o 

o 
§ 


o 

S 

o 

§ 


CM 

s 

(^ 

O 

co 
o 






I 


o 
o 

CM 


o 

o 

CM 


o 
o 

CM 


o 

o 

CM 


o 
o 

CM 


o 
o 

CM 


o 
o 

CM 


o 
o 

CM 


1 

CM 


o 
o 

CM 


o 
o 


o 
o 

CM 


o 
o 

CM 



BUDGET OVERVIEW 



w> 


eg 


Q 


OS 
P 

9 






w 

C/5 


a 


a 


Q 


c 

C/5 

o 


5 


c/i 


Cfl 




H 




c 








w 




U 



CO 




h- 




z 




LU 




? 








£ 








=1 


CM 


CO 


or 


2: 

LU 

rr 


t 




< 






co 

1- 


LL. 


0- 




LU 




o 




LU 




a. 





* < 



CL 

< - 
§ S 

LU O 

_z__o 



o C 

0- ^> 

CO Q 



K P 
co° 

o < 

O CO 



S _j 

UJ UJ 

org 

^3 |- 

a z 

UJ 

CO O 

Fi 

< er 



§ LT 
Z CD 



■2 < ^ F- 

O 3 O LU 

'■ O z 



o m 
< or 



D CO 
CD O 

< cc 

_l LU 
$« 

SI 



2 



CO LU W 

> - > CO 

2 ft! 2 o 

O O O lu 

O CO O O 



EXECUTIVE BUREAU 

Office of the Legal Counsel 

Human Resource Management Office 

External Affairs Office 

Information Technology Division 

Budget Office 

Operations Division 

Communications Division 



EXECUTIVE BUREAU 



Executive Bureau 



The Executive Bureau is the service bureau within the Office of the Attorney General. This 
Bureau's primary function is to provide the Office with overall administration management, policy 
setting, staff supervision and employee training. It is also charged with the responsibility of 
administering technical support to over 500 employees located throughout the Commonwealth. 
Additionally, the Executive Bureau is responsible for a number of specialized functions, including 
the coordination of legislative affairs, constituent relations, community outreach and all 
communications, both internal and external. 

The Office of the Attorney General is located in four areas in Massachusetts. The main office 
is located in Boston with three regional offices in Springfield, Worcester and New Bedford. The 
Executive Bureau is designed to develop and maintain the agency's infrastructure, enabling all the 
offices of the Attorney General to function productively and effectively for the benefit of the 
Commonwealth's citizens. 

The Executive Bureau consists of the Office of the First Assistant Attorney General, which 
oversees all legal matters and includes Office of the General Counsel, and the Office of the Chief 
of Staff, which oversees administrative matters and includes Human Resource Management, Budget, 
Information Technology, Operations, External Affairs, Communications, Support Services and 
the Francis X. Bellotti Law Library. 

The Attorney General has identified children's protection as one of his top priorities. To 
highlight these priorities and other initiatives Attorney General Tom Reilly sponsored several 
conferences in Fiscal Year 2001 . In February 2001 , the office launched the first in a series of four 
regional conferences on hate crime and harassment in schools. In addition, the Attorney General 
and Suffolk County District Attorney hosted a series of conversations among educators, local 
professional and college sports teams, and law enforcement about violence in sports. Those 
meetings led to a new partnership of sports teams, law enforcement and the Massachusetts 
Interscholastic Athletic Association to promote sportsmanship. In June 2001, the Attorney General 
sponsored and participated in an Internet Webcast with middle school children at the Fuller Middle 
School in Framingham to address Internet safety for kids and parents. 

Massachusetts is a national leader in the high tech arena. To that end, Attorney General Tom 
Reilly hosted a National Association of Attorneys General two day conference for Attorneys General 



EXECUTIVE BUREAU 



and their staff from across the country in April 2001. This conference, held in Massachusetts, 
addressed the complex legal issues that have emerged due to the rapidly changing landscape of 
the technology boom. 

Another major initiative of critical importance is health care. In Fiscal Year '00 the Attorney 
General played a key role in the stabilization of Harvard Pilgrim Health Care, a Massachusetts 
HMO on the verge of ceasing services to over one million members. As a result of this Office's 
involvement, in Fiscal Year '01 the Office entered into a partnership with the Donahue Institute of 
the University of Massachusetts and with UMass Medical School on a joint project to publish and 
distribute information that focuses on certain aspects of the state's health care system. In order to 
streamline information and ensure accuracy, the Massachusetts Health Systems Benchmarks was 
established. Its goals are to provide mission-critical data about the state's health care system and 
to coordinate and improve systems that will institutionalize timely and useful data collection, 
reporting, analysis and interpretation. This information collection and disemination point was the 
first in the nation to focus on making this type of comparison data widely and easily accessible. 

Additionally, another priority for the Attorney General is keeping municipal officials apprised 
of changes in the area of municipal law. Every year, the Attorney General holds a forum for 
municipal employees to keep them up-to-date with current issues and legislation to Massachusetts 
law with respect to cities and towns. The annual forum "Keeping You Current" was held in April 
of 2001 and was attended by over 300 city and town officials, focusing on issues important to 
them as they exercise their local government responsibilities. In May of 2001, Attorney General 
Tom Reilly hosted the annual conference for members of non-profit boards, a valuable training 
opportunity for new— as well as established non-profit organizations— in complying with the special 
requirements imposed on non-profit businesses. This is another conference that is well attended 
every year, dealing with issues that are critical to non-profit boards. 

To better serve the public, more information on the Attorney General's priorities and services 
available to the citizens of the Commonwealth may be found by logging on to www.ago.state.ma.us. 

During Fiscal Year '01, the Executive Bureau included the following staff members: Dean 
Richlin, First Assistant Attorney General; Jeffrey Shapiro, Chief of Staff; Ellen Donaghey, Deputy 
Chief of Staff, Jill Reilly, Teresa Polhemus; Meredith Baumann; Karen Charles; Diane MacDonald; 
Susan Kenneally; Pasha Polihronidis; and Mary Wollenhaupt. 



EXECUTIVE BUREAU OFFICE OF THE LEGAL COUNSEL 



OFFICE OF THE LEGAL COUNSEL 



The Office of the Legal Counsel provides recommendations on legal and policy matters to the 
Attorney General, the First Assistant Attorney General and the Chief of Staff. Legal Counsel also 
advises all other staff members, both legal and non-legal. Five attorneys staff the Office of the 
Legal Counsel, each of whom is assigned specific and general areas of responsibility, with the 
support of one paralegal and one secretary. 

Specific areas of responsibility within this Office include: advising on the Rules of Professional 
Conduct and the State Ethics Law; providing legal advice and assistance to the administrative 
staff within the Executive Bureau, coordinating the appointments of Special Assistant Attorney 
Generals (SAAGs); reviewing and approving legal service contracts for state agencies; reviewing 
and circulating petitions and notices from the Board of Bar Overseers; coordinating the office- 
wide review of Department of Revenue tax settlements with individuals who have failed to pay 
taxes; retaining and managing the state's OUI notices to drinking establishments; monitoring the 
National Association of Attorneys Generals (NAAG) recommendation and submission of amicus 
briefs for the First Assistant and coordinating bureau responses; monitoring and reviewing NAAG's 
recommendations to join other Attorneys General throughout the country in letters of support and/ 
or opposition to proposed legislation or regulations; and the overall representation of the Office of 
Campaign and Political Finance before the Superior Court. 

The Office of the Legal Counsel responds to questions and complaints from the public about 
the Open Meeting Law, as it applies to state agencies, and reviews public records law referrals 
from the Supervisor of Public Records in the Secretary of State's Office. In Fiscal Year '01, Legal 
Counsel responded to approximately 55 of these questions and complaints in writing and resolved 
numerous inquiries orally. Additionally, Legal Counsel serves as the Public Records Officer for 
the Executive Bureau, and coordinates the handling of requests for that bureau and all the bureaus 
within the Office. Approximately 40 public records requests were addressed by Legal Counsel 
staff or the public records officers assigned within the bureaus. 

Through their work with the Human Resource Management Office, the Legal Counsel staff 
established a new staff orientation program in Fiscal Year '01 to effectively transition new employees 
into the work environment of the Office of the Attorney General. These two groups also worked 
together to conduct training on the Office's Anti-Discrimination and Sexual Harassment Policy. 
Legal Counsel staff was involved in many cross-bureau initiatives. In keeping with the Attorney 
General's priority of ensuring staff has access to the latest information and training available, the 



EXECUTIVE BUREAU HUMAN RESOURCE MANAGEMENT OFFICE 

Professional Development Unit was established within the Office of the Legal Counsel in Fiscal 
Year '01. This Unit was in the proposal stage in Fiscal Year '00 and demonstrates the Attorney 
General's commitment to this valuable program. The Professional Development Unit provides 
continuing education to legal and non-legal staff on a variety of topics. The programs offered by 
the Professional Development Unit are open to all employees within the Office of the Attorney 
General. 

The Office of the Legal Counsel also monitors and/or drafts briefs that are filed in state and 
federal court. Most notably, in Fiscal Year 01 the Legal Counsel staff handled the matter of Dodd, 
et al., and DeSalvo, et al. v. Thomas Reilly, et al. In addition to their regular duties, many staff 
involved themselves with community service activities and professional associations. In Fiscal 
Year '0 1 , a few employees served as volunteers in nursing homes, neighborhood community health 
care centers, and in educational settings. 

The Office of the Legal Counsel included the following staff members: Pamela M. Dashiell, 
Legal Counsel; Deborah Steenland; Eileen Carey; Akiti Chandler; Renee Coleman; Catherine 
Green; LaDonna Hatton; Judy Zeprun Kalman; Kathleen Sullivan; and Teri Williams Valentine. 



HUMAN RESOURCE MANAGEMENT OFFICE 



RESTRUCTURING OF THE HRM OFFICE 



Due to the increasing demands on the Human Resource Management Office and the desire to 
better serve its employees and applicants, responsibilities were realigned and titles were changed 
to better reflect those new areas of oversight. As such, the tiltes Director of Recruitment and 
Hiring, and the Director of Employee Relations were instituted. 

The Director of Recruitment and Hiring oversees all of the recruitment and hiring efforts, but 
specifically directed all of the legal hiring for the Office. This Director worked closely with the 
Hiring Coordinator, who was responsible for the hiring of support and non-legal staff. The Hiring 
Coordinator also oversaw the need for temporary help, assisted with coverage issues within the 
Executive Bureau and the monthly Administrative Assistants' meetings. Those positions were 
critical as the disparity between public and private compensation increased exponentially and as 



EXECUTIVE BUREAU HUMAN RESOURCE MANAGEMENT OFFICE 



the professional salary limitations required significant recruitment efforts to attract top-level 
candidates . 

The Director of Employee Relations is responsible for a number of employee services in the 
Office: supervises the Benefits and Program Coordinator and assists with the weekly New Employee 
Orientation Meeting; schedules new Assistant Attorneys General for the swearing-in and processes 
the required paperwork with the Secretary of State's Office; supervises the Human Resource 
Assistant in the processing of time and attendance; and serves as the Worker's Compensation 
Agent for the Office. This Director also works closely with the Director of HRM on labor relations 
issues. 



PERFORMANCE APPRAISAL PROCESS 



The Performance Appraisal Process in the Office of the Attorney General was revamped and 
refined during this Fiscal Year. Specific booklets representing the major groups of job titles were 
developed to assist managers in conducting performance appraisals. Careful attention was given 
to goal setting and the success in meeting those goals, as well as the overall contribution to the 
mission of the Office. New categories were added to address career training, professional ethics 
and leadership. Employees were also given the opportunity to offer comments and to evaluate 
their supervisor if desired. 

MINORITY BAR ASSOCIATION MEMBERSHIPS 



In addition to memberships in the Massachusetts and Boston Bar Associations, staff attorneys 
were offered the opportunity to join one of the many minority bar associations in the local or 
regional areas. This benefit was extended to further the Office's commitment to meeting the 
needs of attorneys' professional development, and to encourage involvement with organizations 
comprised of diverse members and experience. 

ANTI-DISCRIMINATION & SEXUAL HARASSMENT POLICY TRAINING 

The Office continued with its aggressive agenda to train all employees in this important policy, 
and substantial progress was made during this Fiscal Year. Over 400 employees were trained up to 



EXECUTIVE BUREAU HUMAN RESOURCE MANAGEMENT OFFICE 



date, but trainings continued to be held on a regular basis. The Office reissued the Anti- 
Discrimination and Sexual Harassment Policy in April, 2001. 

RECRUITMENT 



The Office of Attorney General seeks to recruit and retain the most qualified and committed 
workforce. To do so, it utilizes a number of recruitment tools. All postings are listed on both the 
Office website (http://www.ago.state.ma.us/) and the Commonwealth's Employment Opportunities 
Website (http://www.state.ma.us/hrd/employment/commonwealth_emp_opportunities.htm). 
Additionally, we notify a number of bar associations of all postings, including the Massachusetts 
Association of Hispanic Attorneys, the Women's Bar Association, Massachusetts Black Lawyers 
Association, Massachusetts Lesbian and Gay Bar Association, Massachusetts Black Women 
Attorneys and Asian American Lawyers Association. 

DIVERSITY RECRUITMENT 



The Diversity Committee and the HRM Office sponsored its third annual Diversity Recruitment 
Reception in June, 2001 to attract and retain employees of diverse backgrounds and experiences. 
We also informed recent law school graduates of the Office of the Attorney General's Fellowship 
Program and provided program information for application later in the calendar year. 

During Fiscal Year '0 1, the office-wide Diversity Committee boasted a roster of 35-50 members 
from all areas of the office, including the Regional sites. Five (5) standing sub-committees 
(Education & Training; Office Policies & Procedure; Recruitment; Retention; Community Outreach) 
implemented important initiatives, such as meetings with the minority bar associations and a 
cultural diversity calendar. The third annual Summer Minority Recruitment Reception was 
successfully planned as a major project for the committee. Internal reorganization led to sub- 
committee restructure, streamlined meetings and renewed focus on committee goals. To enhance 
the Office's relationships with the legal community at large and to broaden minority networking, 
Co-chairmen attended several seminars and business meetings highlighting workplace diversity. 

The Human Resource Management Office included the following staff members: Diana 
LaRochelle, Director; Joseph Shea; Marie Urciuoli; Joyce Delgardo; Sandra Macdonald; James 
Chu; Luna Bacon; Thomas Kopaczynski; Rose Mary Miller; Meade Munroe; Deborah Ross; Dazlee 
Vega; and Debra LaCross. 



EXECUTIVE BUREAU EXTERNAL AFFAIRS 



EXTERNAL AFFAIRS DIVISION 



The External Affairs Division of the Executive Bureau is responsive to the public. Its function 
is to serve as a liaison between the public, interest groups, elected officials, and others with the 
OAG. External Affairs consists of the Office of Community Partnerships, Intergovernmental Affairs, 
and the Community Liaison. 

OFFICE OF COMMUNITY PARTNERSHIPS 

Attorney General Tom Reilly created the Office of Community Partnerships to work with 
Massachusetts' mayors, other urban leaders and local town officials to address issues that relate to 
our cities and towns, particularly as they affect the health and safety of our children, environmental 
concerns and housing issues. This Office acts as a direct liaison between the Attorney General's 
Office and the municipalities of the Commonwealth. 

In April of 2001, the Office of Community Partnerships worked with the Massachusetts 
Municipal Association and the Massachusetts City Solicitors and Town Counsel Association in 
presenting the Municipal Law Forum. This conference provided local leaders and town officials 
with a comprehensive update on relevant federal and state legislation, court cases, regulatory 
matters and administrative decisions as well as offered a unique opportunity to gather information, 
share perspectives and raise important concerns and questions affecting Massachusetts' cities and 
towns. 

INTERGOVERNMENTAL AFFAIRS 



The Intergovernmental Affairs Office acts as the liaison to other state and federal government 
offices and officials, including the state legislature and members of the Massachusetts congressional 
delegation. This Office works with other bureaus in the office to develop and file legislative 
proposals, and monitors legislation and budget items relevant to the Office of the Attorney General. 

Among the legislative priorities that Attorney General Reilly identified for the Intergovernmental 
Affairs Office are bills to update the Commonwealth's laws to keep pace with technological changes. 
High technology provides law enforcement with important new tools for fighting crime, but it 
also presents new challenges. Attorney General Reilly, through the Intergovernmental Affairs 
Office, has proposed four separate bills aimed at bringing our laws in line with the high technology 



EXECUTIVE BUREAU INFORMATION TECHNOLOGY 



and provide law enforcement officials the tools they need to protect our children from high tech 



Additionally, the Intergovernmental Affairs Office acts as the contact for members of the 
legislature and staff who have questions or need assistance from the Attorney General's Office on 
behalf of their constituents. In Fiscal Year 01, the Office handled more than 100 written inquiries 
from members of the state legislature and congressional delegation pertaining to a wide range of 
matters handled by the Office. Moreover, the Intergovernmental Affairs Office handles dozens of 
telephone inquiries every week from legislative aides and others. 

COMMUNITY LIAISON 



The Community Liaison is responsible for constituent services. The position was created as a 
resource for written requests, telephone requests, or walk-ins from the community to obtain 
information. In Fiscal Year 2001 , approximately 1 , 1 00 telephone requests were fielded and resolved. 

The External Affairs Office included the following staff members: Jason Queenin, Director; 
Laura Marlin; Susan Beer; Nathaneal Wright; Brigid Crowley; Peter Russell; and Daniel 
Szostkiewicz. 



INFORMATION TECHNOLOGY DIVISION 

The Attorney General's Office continues to place a high level of importance on the quality of 
its technology resources. Additionally, the Agency recognizes the need to maintain current systems 
and applications. Specific areas of concentration by the Information Technology Division during 
Fiscal Year 2001 included Internet firewall protection and anti-virus protection for both servers 
and desktops. Operating systems and application upgrades were also completed, resulting in 
increased system interoperability and file system compatibility. 

There is a demonstrated need to exchange information electronically with other state agencies 
and the general public. There is also a need to satisfy court-mandated requirements for word 
processing. Understanding that files and documents produced by the Attorney General's Office 
need to be as flexible and compatible as possible, the Agency took steps to upgrade its software 
systems for each of its personal computers. 



EXECUTIVE BUREAU INFORMATION TECHNOLOGY 



Electronic messaging along with the ability to transmit documents electronically is now 
considered a primary method of communication. With full Internet access and e-mail now available 
to every Agency employee, use of the Attorney General's e-mail system had increased dramatically 
during the previous year, taxing the servers responsible for the application. To meet the increased 
demand for service, the Information Technology Division needed to acquire updated, high capacity 
servers and made this the first equipment priority in Fiscal Year 2001. 

Desktop upgrades proceeded with the procurement and installation of more than 100 high- 
performance personal computers. At the end of Fiscal Year 2001, approximately 90% of the 
Agency's personal computers had been upgraded since the beginning of this administration. Further 
improvements in printing quality and speed were made by replacing 10 outdated pieces of 
equipment. Additional functionality was obtained with the acquisition of several color laser 
printers. 

Mobile computing capabilities continued to play an essential role within the office as well as 
in the courtroom. Notebook computers with docking stations have replaced desktop computers in 
the Attorney General's High Technology & Computer Crimes Division, providing these staff 
members with even more flexibility. Additional portable computing equipment has been purchased 
for use at Agency-sponsored conferences, seminars and training sessions. The use of multimedia 
and presentation technology has grown rapidly along with the use of digital photography. Further 
enhancements were added with the purchase of photo-quality printers. 

During Fiscal Year 2001, the Information Technology Division continued to work with members 
of the High Technology and Computer Crimes Division to acquire additional computer forensics 
equipment and resources. The Division also worked with the Consumer Complaint and Information 
Section to select, install and implement the needed equipment and application software for a new 
complaint tracking system using state of the art equipment and based on open, non-proprietary 
standards. In addition, Information Technology worked with the Public Charities Division to 
complete the first phase of a new document imaging system. The new system also utilizes state of 
the art technology and is based on open, non-proprietary standards. 

The Information Technology Division included the following staff members: Paula Durant, 
Director; Ronald Rossetti; Claudette Clement; Bruce Crosby; Jean Exantus; Christine Heneghan; 
Robert Keane; Jack Ngan; Amy Oppici; Visakha Samaraweera; Thomas Smith; David Spector; 
Charles Sullivan; and Lisa Sullivan. 



EXECUTIVE BUREAU BUDGET OFFICE 



BUDGET OFFICE 



In FY01, the Budget Office instituted a new system of Monthly Financial Reports that allowed 
senior staff to access up-to-date information on spending levels. These reports were used to 
maintain fiscal discipline and to assist senior staff in establishing spending priorities. The value 
of continually updated information was increasingly important in difficult economic times when 
managers are called upon to do more with less. 

The Office began the process of assuming financial responsibility for the Victim Compensation 
program. Since the inception of the program, the State Treasury processed all payment vouchers 
associated with the Victim Compensation program and was responsible the Financial Status reports 
for while the Office of the Attorney General maintained programmatic control. Because this 
Office recognized the difficulty in splitting these responsibilities, we worked with the Treasurer's 
Office and the Fiscal Affairs' Division and in Fiscal Year 01 , the state appropriation was transferred 
to OAG control. This appropriation is in the amount of $2.2 million. 

The Budget Office included the following staff members: Frank Velluto, Kristine Hill, Mary 
Jane Grace, Gail Sarno, James Creedon, and Penny Michalski. 



OPERATIONS DIVISION 



The Operations Division of the Attorney General's Office main function is to provide stability 
and support to all parts of the office. In completing Fiscal Year 00's plan to open regional offices 
as part of the Attorney General's desire to make this Office more accessible to the people of the 
Commonwealth, one new office were opened in Fiscal Year '01. Full service offices serving the 
public were opened in Central Massachusetts (Worcester, Fiscal Year '00) and Southeastern 
Massachusetts (New Bedford, Fiscal Year '01). These two offices, along with the Western MA 
office in Springfield, have allowed the public to access services faster and more conveniently. 

In Fiscal Year '00, the Operations Division improved our data storage and retrieval systems by 
using Iron Mountain Records Management Incorporated. In order to uniformly archive the data, 
the Operations Division determined that current record retention policy needed adjustment. 
Operations, with the assistance of the Office of Legal Counsel, implemented an office-wide training 
focusing on retaining and archiving records. This training program was launched and completed 
in Fiscal Year '01 and has since served as a statewide model for other state agencies. 



EXECUTIVE BUREAU COMMUNICATIONS OFFICE 



The Operations Division included the following staff members: Eugene Ring, Christy Adams; 
Michael Ball; Kevin Nolan; William Coughlin; Nestor Morales, Jr.; Stephen Cress; Timothy 
LeBlanc; Pier Minghetti; David Scafati; Andrew Smith; Dennis Smith; Michael Scenna; and Harold 
Tafler. 

Smooth operation of the Attorney General's Office is also reliant on the dedicated 
professionalism of the following staff members in the Bellotti Law Library and the 
Telecomunications Division: Karin Thurman, Librarian; John Diperri; Lori Dyson; Paula Hartman; 
Raymond Manigault; Catherine Douglas; Susan Lindsey and Denise McCartin. 

COMMUNICATIONS OFFICE 

The Communications Office coordinates all media related matters for the Attorney General's 
Office. The chief responsibility of the Communications Office is to serve as a centralized public 
voice for the agency. To that end, the Communications Officers work with executive staff and 
bureau chiefs to ensure that the Attorney General's priorities and reflected in all public statements 
and materials, including press releases, advisories, public statements, interviews, publications, 
the Attorney General's Web site (www.ago.state.ma.us) and other public appearances and events. 

Addressing that need to improve communication both within the agency and establish protocols 
for communicating with the public, the Communications Office has implemented policies designed 
for working with the media, creating publications and brochures and placing information on the 
Attorney General's Web site. 

The Communication Office included the following staff members: Stephen Bilafer, Director; 
Ann Donlan; Carolyn Flynn; Paul Fleming; Marsha Cohen; Beth Stone; and Elissa Torto. 

WEB SITE 



Launched in December of 1 999, Attorney General Reilly 's Office Web site continued to expand 
during Fiscal Year 2001. The size of the Web site nearly doubled during Fiscal Year 2001, in terms 
of both the sheer amount of material available and the increased attention of the public. Between 
July, 2000 and June, 2001, the number of visitors logging on to the site steadily increased from 
approximately 30,000 visitors per month to approximately 60,000 visitors per month. That increase 
can be mainly attributed to the improved ease of accessing information; during Fiscal Year 2001, 



EXECUTIVE BUREAU COMMUNICATIONS OFFICE 



many new sections were added to the site, in various areas of consumer protection, workplace 
rights, charities, environmental, and government issues. In addition, during this Fiscal Year, nearly 
every current publication of the Attorney General's Office was converted to both PDF and HTML 
formats and posted on the Web site. This allowed the office to cut down on printing and mailing 
costs, as many constituents were able to access publications from their home computers. All press 
releases that are disseminated from this office are accessible on the site, as well as customized 
directions to all office locations and up-to-date information on employment opportunities and 
policies. 

During Fiscal Year 2001, the Office began working to redesign portions of the site to allow for 
better visibility, ease of navigation, and accessibility. The anticipated launch date of the revised 
Web site is the Winter/Spring of 2002. 



BUSINESS AND LABOR 
PROTECTION BUREAU 

Fair Labor and Business Practices Division 

Insurance and Unemployment Fraud Division 

Medicaid Fraud Control Unit 



BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR BUSINESS PRACTICES 



Business and Labor Protection Bureau 



The Business and Labor Protection Bureau, a bureau comprised of 100+ lawyers, investigators, and 
administrative staff, maintained responsibility for policing and prosecuting a variety ofbusiness crimes and 
related civil wrongs. The Bureau consisted of the Fair Labor and Business Practices Division, the Insurance 
and Unemployment Fraud Division, and the Medicaid Fraud Control Unit. The Bureau's mission this year 
was to use its enforcement responsibility and public education initiatives to prosecute and deter fraud in the 
marketplace and to create a fair environment in which businesses and workers can mutually participate. 

The Bureau's primary offices continued to be located at 200 Portland Street, Boston. The Bureau 
also staffed the Attorney General's regional office in Springfield, Worcester and New Bedford as well as 
its part-time satellite locations in Fall River and Pittsfield. 

In Fiscal Year 2001, the Bureau staff was comprised of a David Nalven, Bureau Chief, Connie 
McGrane, Deputy Bureau Chief, David Marks, Chief Prosecutor, and Jennifer Ryan, Immigrant Outreach 
Coordinator. 



FAIR LABOR & BUSINESS PRACTICES DIVISION 



INTRODUCTION 



The Fair Labor and Business Practices Division (FLBP) was responsible for enforcing the Massachusetts 
wage and hour laws, including the prevailing wage, minimum wage, nonpayment of wages and overtime 
laws. The Division maintained a telephone hotline, which served as a workplace-law information center 
for both workers and businesses. FLBP received and investigated numerous complaints through this 
hotline. 

FLBP has also been also charged with enforcing the child labor and workplace safety laws. In addition, 
FLBP maintained responsiblity for those laws concerning adherence to public contracting requirements. 
To that end, FLBP staffed a public contracts protest unit that investigated allegations of improper public 
works bidding practices, held hearings, and issued written decisions concerning public construction bid 
disputes. Another responsibility of this division was that of reviewing and ruling on applications by businesses 
for waivers from compliance with certain workplace laws. 



15 



BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR BUSINESS PRACTICES 



During Fiscal Year '01, FLBP staff included Dan Field, Chief; John Baker; Jeb Banks; Phil Beattie; 
Randy Berg; Kyle Beverly; David Bieksha; Patricia Bopp; Jenifer Bosco; Kim Brooks; Cecile Byrne; 
Ronald Cabezas; Nick Carboni; Jay Clark; Mary Connolly; Susan Decker; Gary Dionisi; Joseph Drzyzga; 
Mary Dullinger; Patrick Faherty; Robert Galvani; Shirley Garutti; John Gatti; Lory Goldenberg-Tarrow; 
Paul Gordon; Michael Guarin; Richard Hartigan; Marsha Hunter; William Hurley; Jocelyn Jones; Barbara 
Kane; Patricia Kelleher; Noreen Kelly; Robert Lamarre; Carolyn Long; Val Mabry; Brian Macera; Jeffrey 
Mahoney; Anita Maietta; Toni Maloney; Mildred Markham; Katherine Mulligan; Mario Paiva; Joan Parker, 
Iona Powell-Headley; Anne Powers; Tara Quinlan; Greg Reutlinger; Mario Rosado; Elizabeth Rufo; Jennifer 
Ryan; Palmer Santucci; Steven Spencer; Bruce Trager; Steve Troiano; Theresa Ukleja; Theresa Vadala; 
Richard Yorra; and Karla Zarbo. 



HIGHLIGHTED EFFORTS & SIGNIFICANT ACTIVITIES 



OVERALL INVESTIGATORY ACTIVITY 

FLBP received and investigated in excess of 4,500 formal complaints this fiscal year. In many instances, 
FLBP's investigators resolved these complaints informally, often with payment of full restitution or provision 
of another appropriate remedy to the aggrieved employee. In many other cases, consistent with its law 
enforcement mission and approach, FLBP's staff employed its prosecution authority to pursue instances of 
unlawful conduct and regularly sought civil and criminal sanctions to be imposed on workplace law offenders. 
During Fiscal Year 2001 , FLBP recovered in excess of $3.3 million in wages that were owed, but unpaid, 
to Massachusetts workers, as well as administrative fines, through these efforts. Some of the increase in 
restitution this year must be credited to institutional changes that firmly took root in the past year, such as 
improved case management, better allocation of resources and closer staff oversight. 

PAYMENT OF WAGES ENFORCEMENT 



In November 1 998, significant new amendments to the wage and hour laws were enacted, enhancing 
criminal penalties for violations of certain wage and hour laws, and giving the Attorney General the authority 
to issue civil citations for such violations. Pursuant to this new legislation, FLBP was also authorized to 
issue citations to employers who fail to pay wages, overtime, the minimum wage, or prevailing wages, or 
who fail to provide certified payroll or other employment records required to be maintained and produced 
under Massachusetts law. Under the law, a civil citation issued by FLBP can require the employer to 



BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR BUSINESS PRACTICES 



comply with the law, pay restitution to the employees, and pay a civil penalty. During Fiscal Year 2001 , 
FLBP implemented enforcement using this new legislation, and issued more than 1 89 civil citations for 
violations of the payment of wages and prevailing wage statutes, a 40% increase over Fiscal Year '00. 

PREVAILING WAGE ENFORCEMENT 



FLBP placed a high priority on enforcement of the prevailing wage law. Well-documented complaints 
often formed the basis for FLBP's most effective prosecutions and wage recoveries. FLBP inspectors 
also conducted unannounced site inspections at numerous public construction projects. During Fiscal 
Year 200 1 , FLBP investigators conducted over one hundred site inspections throughout the Commonwealth. 
This proactive approach not only assisted in the discovery of unlawful conduct, but also served the important 
public purpose of deterring workplace misconduct that might otherwise take place. 

PUBLIC CONTRACT OVERSIGHT 



The Attorney General 's Office continued to provide a professional and accessible forum for the resolution 
of public construction bidding disputes. The Attorney General's primary enforcement efforts in this area 
have been undertaken by FLBP's Public Contracts Unit. The tools employed by the Public Contracts Unit 
included providing informal advice by telephone to the Commonwealth's awarding authorities and contractors 
who bid on public works projects. During Fiscal Year 200 1 , the Public Contracts Unit received thousands 
of written and telephone inquiries. The Unit's telephone support has become an established resource for 
contractors and awarding authorities. Telephone assistance has also served as a significant prevention 
tool, often delivering the information necessary to prevent (or quickly remedy) a violation of the public 
bidding laws. 

Additionally, the Public Contracts Unit adjudicated public-works bidding disputes, and, when 
appropriate, investigated allegations of impropriety in connection with public-works project bidding. In 
the Fiscal Year '01 , the Unit wrote decisions in 39 cases. 

FLBP's public contracts enforcement efforts also included an educational component that provided 
public contracting participants with information regarding the public bidding laws. Among other things, the 
Attorney General's Office compiled and made available in the Francis X. Bellotti Law Library (of the 
Attorney General's Office) the written public contracts bid protest decisions issued by FLBP. In addition, 



BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR BUSINESS PRACTICES 

FLBP's staff participated in educational programs that provided the substantive and procedural information 
to the construction industry and their counsel necessary to properly solicit or submit publ ic works construction 
bids. Such proactive efforts have served many useful purposes, not the least of which has been to decrease 
the number of bid protests. 

CHILD LABOR 



The Massachusetts child labor laws were established to protect workers under the age of 1 8. These 
workplace laws acknowledge the special vulnerabilities of young workers. The laws have allowed young 
workers to optimize their educational opportunities by restricting the number of hours minors of certain 
ages may work. In recognition of the increased rate of workplace injury among teenage workers, these 
laws also have helped shield minors from working on hazardous tasks and equipment. In addition, the 
permitting process, in which FLBP's specially trained child labor inspectors are closely involved, has 
created a structure for school superintendents, who issue work permits, to review the intended employment 
to ensure that it is safe, consistent with the child labor laws, and serves the best interests of the minor. 

During Fiscal Year '0 1 , FLBP inspectors investigated reports of child labor violations and conducted 
workplace site inspections, visiting many businesses where minors were employed, noting violations and 
advising employers of their responsibilities and legal obligations under the child labor laws. 

WORKPLACE SAFETY 



FLBP has been charged with investigating reports of fatalities and serious injuries that occur in the 
workplace. FLBP inspectors have worked in conjunction with the LJnited States Occupational Safety and 
Health Administration (OSHA), the Massachusetts Department of Public Health's Fatality Assessment 
and Control Evaluation Program, the State Police Crime Prevention and Control Unit, local police and fire 
departments, and other federal, state and local agencies. 

In addition, FLBP has retained statutory authority to enforce safety standards in municipal and county 
workplaces. As such, FLBP investigated reports of serious injuries and safety risks that occurred in the 
public sector. During Fiscal Year '01, inspectors investigated workplace safety issues at a variety of 
construction sites, service and manufacturing facilities, restaurants, and governmental offices. 



BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR BUSINESS PRACTICES 

WAIVERS & INDUSTRIAL HOMEWORK 



FLBP is charged by statute with the authority to waive certain requirements of the labor laws under 
certain conditions. During Fiscal Year 1 , FLBP processed hundreds of waiver applications and industrial 
homework certificate requests. Each request for a waiver was carefully evaluated before a determination 
was made to grant or deny the request. FLBP enforced the industrial homework laws (work performed 
for a company in the employee's home) by issuing permits to the employers and certificates for each 
employee, where applicable. FLBP also monitored these companies to ensure compliance with the minimum 
wage and overtime laws. 



SIGNIFICANT CASE SUMMARIES 

The following provides an overview of cases undertaken by FLBP during Fiscal Year 2001. 

• Commonwealth v. Zachary Pinnick & ZP Construction (Norfolk Superior Court) 
Pinnick, a construction company proprietor, was charged in connection with several types of 
violations related to various public works projects. Pinnick pleaded guilty to 1 1 counts of failure 
to pay contributions to the Division of Employment and Training; 10 counts of nonpayment of 
wages; four counts for failure to pay overtime; and three counts of submitting false certified 
payroll records on public construction projects. Pinnick received the maximum sentence for 
failure to pay unemployment contributions of one year in the House of Corrections, suspended 
for five years, and was ordered to pay the Commonwealth $4,865. He was also sentenced to 
two months in the House of Corrections, suspended for five years, for nonpayment of wage and 
overtime indictments, and ordered to repay his former employees $46,890. Pinnick was also 
debarred for three years from bidding on or working on any future public construction projects, 
and forfeited his Minority and Women's Business certification for three years. Additionally, 
Pinnick was ordered to perform 250 hours of community service each year for the next five 
years. 

• Commonwealth v. Dalton & Sons (Dedham District Court) Two defendants violated 
child labor, prevailing wage and workers compensation laws. A minor was found to be working 
on a 1 2-story scaffold, which is significantly higher than allowed. In addition, the minor was not 
paid the prevailing wage for his work, which was being performed on a municipal building. The 
company also failed to maintain workers' compensation insurance. The defendants pleaded 



BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR BUSINESS PRACTICES 

guilty, and were ordered to pay $200 in fines, $8,500 in restitution, and were debarred from 
public construction for six months. 

• Waste Management - Phases I & II This national waste hauling company failed to pay 
hundreds of employees the proper prevailing wage rate for trash pickup in dozens of cities and 
towns throughout the Commonwealth. An extensive settlement agreement was negotiated and 
executed. As part of the first phase of the settlement, the company paid $809,000 in restitution 
to more than 620 workers. 

• Schlumberger Industries This company failed to pay the prevailing wage rate for 
installation of new water meters, incorrectly classifying its plumbers as laborers. The company 
agreed to pay nearly $50,000 in restitution, and was fined $7,500. 

• Hi- Way Safety Systems, Inc. Hi-Way had a contract with MA Highway Dept., and 
reported paying its employees $26/hr, when in actuality, they were paid between $9 and $ 1 0/ 
hour. The firm paid $50,000 in restitution, and made a $20,000 charitable contribution to the 
Pembroke Youth Association and the Hanover Boys and Girls Club. 

• Commonwealth v. Bruce Phillips and Electrical Energy Services, Inc. (Middlesex 
Superior Court) Six indictments, totaling 84 counts, were handed down against this firm for 
prevailing wage violations and embezzlement. The embezzlement involved approximately 

$ 100,000, earmarked for employees' pensions, from 22 employees who performed electrical 
work on public works projects. Phillips pleaded guilty, and received three months in the House 
of Correction, restitution plus interest and a penalty, and was debarred for five years. 

• Kay Wong (Westborough District Court) This owner of a now-defunct restaurant paid 
two former workers with paychecks that bounced. Ms. Wong paid full restitution and the judge 
continued the case without a finding. 

• Regalia Bridal A bridal wear manufacturer was charged with nonpayment of overtime 
wages to 27 immigrant employees. The employer attempted to conceal the nonpayment of 
wages by requiring that these employees, who were working in excess of 40 hours/week sewing 
bridal gowns, sign in under multiple names. FLBP recovered almost $5,000 in wages and 
penalties, providing these employees not only what was due to them, but also the pay that could 
make the difference in being able to pay for necessities, such as food or rent. 



20 



BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR BUSINESS PRACTICES 

• Tailwind Technologies (Woburn District Court) Two owners of a software company 
admitted to failing to pay an immigrant software engineer approximately $20,000. Restitution 
was ordered, and the case continued without finding. 

• King Painting Multiple complaints were issued by multiple district courts to this chronic 
violator of prevailing wage laws. A global plea agreement resulted in a sentence of six months 
probation, debarment from public projects, restitution and a $ 1 0,000 fine. 

• Davis Design Development Corp A carpentry contractor failed to pay overtime to 39 
employees, claiming a seasonal employer exemption. An investigation revealed that work was 
being performed year round. FLBP recovered over $20,000 in restitution and penalties. 



OUTREACH 

Attorney General Reilly has long believed that public education is the first step in promoting compliance 
with workplace law. Accordingly, outreach to the employee and employer communities, and their unions, 
trade associations, counsel, and other advocates, was a FLBP priority. One means to this end has been 
FLBP's telephone hotline, which has served as a workplace law information center for workers and 
businesses. In Fiscal Year '01, the FLBP hotline received over 68,000 inquiries. 

The Immigrant Outreach Project was launched in the past fiscal year, and with the hiring of the Division's 
first Immigrant Outreach Coordinator, the program has gained much momentum. The Attorney General 
has long insisted upon fair treatment of immigrants in the workplace, and this project is one way to help 
ensure that all workers in the Commonwealth receive an honest day's wages for an honest day's work. In 
the past year, FLBP has made over 1 00 presentations to immigrant advocacy groups and their constituents. 
The project also began to receive a higher number of specific complaints of workplace abuse. The 
program has also begun to make presentations to employer groups in an effort to educate that group with 
respect to their rights and responsibilities concerning immigrant employees. 

Outreach was conducted in other areas, as well. During Fiscal Year 01 , FLBP staffmade more than 
70 presentations to bar association and continuing legal education groups, professional organizations, 
trade associations, labor unions, and employee advocacy groups. These presentations ranged from nuts 
and bolts primers on the Commonwealth's wage and hour laws, and employee and employer rights and 
responsibilities under these laws, to sophisticated presentations on such topics as worker classification 
under the prevailing wage law and the treatment of accrued vacation time as wages. During this period, 



BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR BUSINESS PRACTICES 

FLBP also launched a special outreach effort to immigrant workers and their families who, because of 
language barriers and lack of familiarity with the laws of the Commonwealth, may have been especially 
vulnerable to mistreatment in the workplace. 

FLBP has also sought to educate relevant communities about wage and hour issues through the 
production and distribution of advisories and other publications. During Fiscal Year '01 , with new minimum 
wage legislation having been enacted, FLBP designed and distributed a new minimum wage and workplace 
rights poster to 10,000 Massachusetts employers. FLBP also worked with the Commonwealth's Division 
of Occupational Safety on the compilation and distribution of a Compendium of Massachusetts Prevailing 
Wage Law, for use by awarding authorities, contractors, workers, and other participants in Massachusetts 
public works construction projects. 

FLBP has endeavored, in the past year, to convey information to the community through the Workers' 
Rights section of the Attorney General's Office's Web site. The FLBP portion of the Web site was 
established to contain basic summaries of Massachusetts workplace law, many of the AGO's workplace- 
related advisories and publications, and other resources. The Web site was accessed by callers to the 
hotline as well as the general public, thus achieving its goal of serving as another means of providing 
information to the people of the Commonwealth. 



DIVISION STATISTICAL SUMMARY 



Restitution Recovered $3,362,26 1 

Hotline Calls 68,550 

Complaints Filed 4,558 

Cases Closed 5,759 

Civil Citations Issued 1 89 

Public Contract Dispute Resolutions 4 1 



22 



BUSINESS AND LABOR PROTECTION BUREAU INSURANCE UNEMPLOYMENT FRAUD 

INSURANCE & UNEMPLOYMENT FRAUD DIVISION 

The mission of the Insurance and Unemployment Fraud Division (IUFD) has been to investigate and 
prosecute fraud against all types of insurers in Massachusetts, and against the Commonwealth's 
unemployment security system. IUFD prosecuted these crimes to protect Massachusetts businesses, 
consumers, and taxpayers from the hidden tax that fraud on these systems imposes. 

IUFD's cases varied widely, including multi-million dollar workers' compensation premium fraud cases, 
conspiracies by medical and legal professionals, fraud in auto repair businesses, staged motor vehicle 
accidents, inflated claims against homeowner's policies, cases involving claimants working while collecting 
workers' compensation benefits, and fraud by businesses on the Commonwealth's unemployment security 
fund. IUFD gave special attention to policing fraud by insurance industry insiders, including insurance 
agents, claims adjusters, and damage appraisers, whose frauds could have had an especially corrosive 
effect on public confidence in the insurance and unemployment compensation systems. 

IUFD has received referrals from a number of sources. The largest source of referred cases was the 
Massachusetts Insurance Fraud Bureau, a non-governmental entity created by the Massachusetts Legislature 
and funded pursuant to statute indirectly by the Massachusetts insurance industry. In addition, IUFD 
received referrals from the Commonwealth's Human Resources Division, the Governor's Auto Theft Strike 
Force, the Department of Industrial Accidents, the Workers' Compensation Rating and Inspection Bureau, 
the National Insurance Crime Bureau, and the Social Security Administration. IUFD also received 
complaints and referrals from concerned citizens, private attorneys, and court personnel. The wide range 
of referrals helped exemplify that IUFD's efforts in fighting insurance fraud are appreciated throughout the 
Commonwealth. 

IUFD included the following staff members during Fiscal Year '0 1 : Eliot Green, Chief; Dave Andrews; 
Marty Bowers; Jack Crimmins; John Curseaden; Marty Flood; Rafael Garcia; Hannah Greenwald; Amy 
Hamel; John Hanrahan; Madeline Leone; Gloria Luk; Catherine McClure; Tim McDonough; Amy Nechtum; 
Shauna Neuhauser; John O'Leary; Erin Olson; James Paikos; Lena Robinson; Amy Sharff; John Talbot; 
Amy Uzdavinis; and Bill Weinreb. 



HIGHLIGHTED EFFORTS & SIGNIFICANT ACTIVITIES 

During Fiscal Year '01 , IUFD reviewed over 1 75 files referred by the Insurance Fraud Bureau over a 
period of about two years. The files were either retained for further investigation, or returned to IFB with 



23 



BUSINESS AND LABOR PROTECTION BUREAU INSURANCE UNEMPLOYMENT FRAUD 

an explanation for declining to pursue the referral. In reviewing this large number of files, IUFD eliminated 
a large backlog of referrals, which has allowed the division to more efficiently focus its efforts. One means 
of doing this involved working with the IFB to create a new referral form; IUFD then instituted a policy of 
responding to referrals within 30 days of receipt. 

IUFD also continued to emphasize case selection, coordination at the earliest stages with investigatory 
agencies, such as IFB, and case preparation prior to charging. Although this regimen required substantial 
investment of resources, IUFD managed to maintain or improve its charging and disposition rates. As a 
result, Fiscal Year 2001 saw an improvement in the quantity of cases reviewed and disposed of while 
maintaining quality. 

During this past Fiscal Year, IUFD staff met with representatives of the Division of Insurance on a 
regular basis and established a referral protocol and effective working relationship. As an outcome of 
these meetings, IUFD developed a program, funded by the Division of Insurance, to coordinate motor 
vehicle insurance fraud prosecutions with various District Attorneys' offices. In another inter-agency 
effort, IUFD cooperated with the Social Security Administration to establish a disability fraud investigations 
program. IUFD also continued to maintain a high level of investigatory coordination with DET. 

IUFD created and implemented a statistical tracking procedure during Fiscal Year '0 1 . This procedure 
has already begun to yield results, providing data on how various courts respond to the cases brought 
before them. Using this procedure, IUFD also developed a database of precedents, which the division 
began utilizing in making charging decisions and disposition recommendations. IUFD also fully updated 
and verified the cases entered into the Case Management System, which has given the division more 
thorough control over its referral and case inventory. 

IUFD's initiatives and hard work resulted in substantial savings to the insurance industry and its 
customers, and to the Commonwealth's unemployment security fund, not only in the funds that were repaid 
to the insurers through restitution orders, but also through the reduction in fraud that its vigorous enforcement 
achieved. 



24 



BUSINESS AND LABOR PROTECTION BUREAU INSURANCE UNEMPLOYMENT FRAUD 

SIGNIFICANT CASE SUMMARIES 
The following are representative cases that were concluded in Fiscal Year 200 1 : 

THE ELLIS & ELLIS CASES 

• Commonwealth v. James N. Ellis, Jr. & Nicholas Ellis (Worcester Superior Court) 
The most prominent matters in IUFD during Fiscal Year 2001 were the trials of James N. Ellis, 
Jr., and his brother, Nicholas Ellis, partners in the Worcester family law firm of Ellis & Ellis. The 
Ellis cases as a whole involved 246 indictments brought against numerous Ellis family members, 
their clients, consultants, affiliates and other joint ventures. The case tried against James N. 
Ellis, Jr., alleged that James N. Ellis, Jr. had knowingly submitted a fraudulent claim for worker's 
compensation insurance on behalf of a client. The central proof of the fraud was that Ellis had 
previously submitted a claim for the identical injury for the same client, but using the client's 
alias. The defense argued that the claim was for an aggravation of the injury upon which the first 
claim was based, and was therefore appropriate for submission; and that because the client's 
true identity was not material to the claim, the submission under the alias identity did not 
constitute a fraud. The first trial resulted in a hung jury. Prior to the retrial, both Ellis brothers 
entered guilty pleas. 

Subsequently, James Ellis, Jr., pleaded guilty to 23 felony and misdemeanor counts, and was 
sentenced to three to five years in state prison, with one year to serve. He was also ordered to 
pay $250,000 in restitution and penalties. Nicholas Ellis pleaded guilty on two misdemeanor 
counts, and was sentenced to 2'/ 2 years in the Worcester House of Corrections, with six months 
to serve and five years probation. Both defendants were required to surrender their bar licenses 
for at least five years. As a term of their probation, their father, James N. Ellis, Sr., also agreed 
to retire permanently from the practice of law and close the family law firm. 

OPERATION KODIAK 



These cases, referred by the Governor's Auto Theft Task Force, involved an undercover operation in 
which State Police uncovered nine separate instances of an insured's motor vehicle reported stolen days 
after the same car had been given to an undercover officer. The insureds then collected claim settlements 
from various insurance carriers. Eleven individuals were indicted on 53 charges, which had resulted in 



25 



BUSINESS AND LABOR PROTECTION BUREAU INSURANCE UNEMPLOYMENT FRAUD 

$58,000 fraudulently paid claims from seven carriers. During Fiscal Year '01 , four cases were resolved via 
guilty pleas: 

• Commonwealth v. Thomas Burton (Norfolk Superior Court) Burton reported the theft 
of his 1 984 Chevy Blazer from the South Shore Plaza to the Braintree Police on February 15, 
1996. In fact, the vehicle had been given away for free, at Burton's request, by Daniel Brunke 
to undercover Trooper Joe Grant two days earlier. Burton filed a claim with the Holyoke 
Mutual Insurance Company, which paid $ 1 ,757 for the vehicle. Burton pled guilty to all 
indictments and was sentenced to six months in the House of Correction, with probation for two 
years after his release. 

• Commonwealth v. Maria Taverna (Norfolk Superior Court) Tavema reported the theft 
of her 1 990 Dodge Caravan from a shopping center to the Weymouth Police on March 16, 

1 998. In fact, the vehicle had been given away for free, at Taverna's request, by Frederick 
Knight to undercover Trooper Joe Grant four days earlier. Tavema filed a claim with the 
Hanover Insurance Company, which paid her $3, 1 75 for the vehicle and $225 for rental car 
reimbursement. Tavema pled guilty to four indictments and was sentenced to six months in the 
House of Correction, suspended for one year, with a $500 fine. She was also ordered to pay 
$3,400 in restitution. 

• Commonwealth v. Emily Wholley (Norfolk Superior Court) Emily Wholley reported the 
theft of her 1 990 Jeep Cherokee from the South Shore Plaza to the Braintree Police on January 
24, 1998. In fact, the vehicle had been given away for free, at Wholley 's request, by Frederick 
Knight to undercover Trooper Joe Grant seven days earlier. Wholley filed a claim with the 
Commercial Union Insurance Company, which paid her $6,902 for the vehicle and $900 for 
rental car reimbursement. The defendant pled guilty and was sentenced to six months in the 
House of Correction, suspended for one year, with a $ 1 ,500 fine and a restitution order of 
$7,800. 

• Commonwealth v. Frederick Knight (Norfolk Superior Court) Knight was charged in 
connection with his daughter Claire's fraudulent motor vehicle theft claim and for his facilitating 
the disposal of three other vehicles. On June 14, 1996, Claire Knight reported the theft of her 
1 990 Ford Probe from the Hanover Mall to the Hanover Police. In fact, the vehicle had been 
given away for free, at Claire's request, by Frederick Knight, her father, to undercover Trooper 
Joe Grant three days earlier. Claire and Frederick filed a claim with the Trust Insurance 
Company which paid a total of $3,79 1 to Frederick and a lienholder for the vehicle. 



26 



BUSINESS AND LABOR PROTECTION BUREAU INSURANCE UNEMPLOYMENT FRAUD 

On three additional occasions in 1 997 and 1 998, Fred Knight provided vehicles for free to 
undercover State Trooper Joe Grant for Grant to conceal or dispose so that the vehicle owner 
could later report the vehicle stolen to local police and the insurer and reap the insurance 
benefits. The vehicle owners involved were Michael and Suzanne Gabriel, Emily Wholley, and 
Maria Taverna. 

Knight was also charged with one similar crime in Plymouth County. The defendant pled guilty 
to all charges in both counties and received a sentence of six months home confinement, three 
years probation and a $500 fine. 

FRAUD BY INSURANCE INSIDERS 



• Commonwealth v. David D. Curtis, Jr. (Norfolk Superior Court) Curtis was a claims 
adjuster for the CNA Insurance Company who, along with another man, devised a scheme 
whereby Curtis' associate set up a "dummy" private investigative company. In his role as a 
claims adjuster, Curtis would then hire the company for work which did not need to be done, 
and which was never performed. CNA would then unknowingly pay the "dummy" private 
investigative company, which would in turn pay Curtis a percentage of what they received from 
CNA. Curtis pled guilty to corporate bribery, making false entries in corporate books, larceny 
over $250, and filing a false tax return, all felonies. He was sentenced to two and one half years 
in the House of Correction, with 30 days to serve, the balance suspended for four years of 
probation. He was also ordered to pay $7,500 in restitution to CNA, $2,500 in costs of 
prosecution to the Office of the Attorney General, and $250 in costs to pay for the mailing of a 
signed letter to claims adjusters warning of the harsh sanctions for committing this offense. 

• Commonwealth v. Thomas Quesnal (Northampton District Court) Quesnel is a former 
Metropolitan Life Insurance Company agent who misappropriated $7,558.52 in cash surrender 
checks, which were to be used to purchase new life insurance policies for an elderly South 
Hadley couple. Quesnel convinced the couple to obtain cash surrender checks for small, old life 
insurance policies. The couple endorsed the checks and entrusted them to Quesnel to apply to 
new, larger policies. Quesnel instead cashed the checks and converted the money to his own 
use. Quesnel pled guilty to six felonies (three counts of larceny over $250, and single counts of 
forgery, uttering, and obtaining a signature by false pretenses) and three misdemeanor charges of 
fraud by an insurance agent. Quesnel was sentenced to two years in the House of Correction, 
suspended for three years with probation, an order of $7,558.52 in restitution to MetLife, a 



BUSINESS AND LABOR PROTECTION BUREAU INSURANCE UNEMPLOYMENT FRAUD 

$2,000 fine and a probationary condition that he not engage in any professional activities relating 
to or involved with the insurance industry. 

• Commonwealth v. David Noone (Maiden District Court) From 1994 to 1996, the 
defendant was an insurance agent who carried out a scheme in which he forged the signature of 
a policy holder on a auto insurance financing application as well as on a Metropolitan Insurance 
Company policy application. Noone then directed the policy holder to write insurance premium 
checks payable to him, rather than the insurer. He then converted these monies for his own use. 
Noone pled guilty to larceny over $250, and was sentenced to one year in the House of 
Correction, suspended for two years. He was also ordered to pay a fine of $ 1 ,000. 

FRAUD BY CLAIMANTS 



• Commonwealth v. Tova Duby Garcia (Natick District Court) Tova Duby Garcia 
presented two fraudulent insurance claims against two separate insurance companies for the 
same insured property, a diamond wedding/engagement ring valued at $ 1 4,956. The defendant 
pled guilty and received one year in the House of Correction, suspended for one year. The 
defendant was ordered to pay $15,461 in restitution with a fine of $2,500. 

• Commonwealth v. Susan Teehan (Dedham District Court) An investigation revealed 
that the defendant submitted five phony claims for workers' compensation, bodily injury and 
unemployment compensation. She was represented by the same attorney in two of the claims, 
and treated by one chiropractor for three of the claims, another chiropractor for two of the 
claims. Both chiropractors denied prior treatment. Additionally, the defendant held six different 
jobs while collecting workers' compensation. She pled guilty and agreed to cooperate in cases 
against her lawyer and chiropractors in exchange for two years in the House of Corrections, 
suspended for five years, and was ordered to pay $3 1 ,740 in restitution. As a condition of 
probation, the defendant was ordered to wear an electronic bracelet and abide by a curfew. 

• Commonwealth v. Mark A. Stoller (Clinton District Court) Stoller was standing at a 
pay phone when his car was hit by another driver. Stoller told the police, hospital personnel, his 
insurance company and the other driver's insurance company that he was in the car at the time 
of the accident and that as a result of the accident he was injured. Following a jury trial, the 
defendant was found guilty of insurance fraud and larceny over $250 and sentenced to one year 
in the house of correction, suspended for three years, with $8,500 in restitution and an 
additional three years probation. 



2H 



BUSINESS AND LABOR PROTECTION BUREAU INSURANCE UNEMPLOYMENT FRAUD 

• Commonwealth v. Ann Syrko (Pittsfield District Court) Syrko made statements alleging 
to be a witness to slip and fall accident that never occurred in order that a friend of hers could 
collect on a fraudulent insurance claim. Following a jury trial, the defendant was found guilty of 
attempted larceny and sentenced to one year of probation and given 120 hours of community 
service. 

• Commonwealth v. Fruto Exavier (Taunton District Court) Exavier pled guilty to 
automobile insurance fraud and received to two years in the House of Correction, suspended 
for two and one half years during which the defendant will be on supervised probation, with 1 00 
hours of community service and restitution in the amount of $4,850. The defendant also pled 
guilty to attempted larceny and was sentenced to two years probation, to run consecutively. 

• Commonwealth v. Franck Saintil (Middlesex Superior Court) Saintil was involved in a 
series of exaggerated and staged accidents and filed a number of false insurance claims, which 
either exaggerated or falsified his medical condition and treatment. The defendant was charged 
with attempted larceny and motor vehicle insurance fraud. The defendant pled guilty and was 
sentenced to 63 days in the House of Correction, committed, and one year of probation. 

WORKING WHILE COLLECTING CASES 



• Commonwealth v. Craig Mclnnis (Maiden District Court) Mclnnis was working for 
Controlair Systems while fraudulently collecting unemployment benefits of over $5600 from 
DET The defendant entered a guilty plea and received a sentence of 30 days in the House of 
Correction, suspended for two years. The defendant was also ordered to pay $5,660 in 
restitution. 

• Commonwealth v. Robert Battey (Cambridge District Court) Battey was collecting 
unemployment benefits while incarcerated. He collected a total of $2,422 while in the 
Middlesex County Jail. Battey pled guilty and was sentenced to eighteen months in the House 
of Correction, suspended for two years, with $1,211 in restitution. 



OUTREACH 



IUFD's attorneys, investigators and support staff maintained a high level of numerous outreach efforts 
in Fiscal Year '01, in addition to the regular meetings with the Insurance Fraud Bureau, Division of 



29 



BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT 

Employment and Training and the Division of Insurance. Two of IUFD's attorneys gave a presentation on 
Teen Violence and Dating at the Paul McLaughlin Center; several staff members were also involved with 
the McLaughlin Center's Youth Empowerment Skills Project. IUFD staff members also gave presentations 
on internet safety. The Division Chief gave a lecture at an underwriters conference on insurance fraud. 
One of IUFD's attorneys was selected to participate in the Citizen School Program, a middle school 
mock-trial program. One of IUFD's AAGs has been serving as an editor of the Boston Bar Journal, 
while another staff member worked with the Boston Bar Association's Children's Outreach Initiative 
"Great Cases in the Classroom." 



DIVISION STATISTICAL SUMMARY 

Referred Complaints 99 

Investigations Opened 86 

Investigations Closed w/o Prosecution 44 

Cases Charged 53 

Cases Disposed of 53 

Cases Disposed, w/Committed Prison Time 9 
Restitution & Fines Recovered $383,000 

MEDICAID FRAUD CONTROL UNIT 

The Medicaid Fraud Control Unit (MFCU) was established to protect the Massachusetts Medicaid 
program, which administered the provision of approximately $5 billion of health care services to 700,000 
indigent and disabled recipients in Massachusetts last year. In addition to prosecuting corporate and 
individual health care providers who commit crimes against the Medicaid program, MFCU was also 
responsible for prosecuting companies and individuals who abused, neglected, or mistreated elderly and 
disabled residents of the Commonwealth's 550+ long-term care facilities, most of which have been funded 
extensively, if not exclusively, by the Medicaid program. 

30 



BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT 



Recognizing that Medicaid fraud is complex and costly to prosecute, the federal government has 
provided approximately 75% of the funding for MFCU's operation. Among its counterparts in other 
states across the nation, Attorney General Reilly's MFCU has been a leader in the number of successful 
criminal prosecutions and affirmative civil actions it produced. 

Consistent with its mission to protect the Medicaid program on a statewide basis, MFCU used a team 
approach to both deter and prosecute fraud on the Commonwealth's taxpayers. Through the extensive 
use of a Special Grand Jury sitting in Boston, as well as its statutory and regulatory discovery authority, 
MFCU has obtained convictions and recovered funds for the Medicaid program well in excess of its 
budget. 

In Fiscal Year '0 1 , MFCU consisted of approximately 30 full-time members, including a division chief, 
a chief of investigations, a staff of assistant attorneys general, financial investigators and auditors, pharmacists, 
nurses, a dental investigator, and administrative staff. MFCU included the following staff members during 
Fiscal Year '0 1 : Nick Messuri, Chief; Ann Ackil; Kris Barrett; Al Brown; James Caruso; Eileen Casey; 
Peter Clark; Tanya Clement; John Curley; Steve Devlin; Joe Driscoll; Elaine Duffy; Catherine Fielding; 
Elizabeth Foley; Marianne Geula; Caryn Gordon; Andree Lebel; Lai Ho Teresa Liu; Steve McCarthy; 
Anthony MegathJin; Mark Muldoon; Janice Paterna; Bob Patten; Shirley Rokosz; Susanne Snow; Christine 
Soloperto; and Bernie Vivolo. 



HIGHLIGHTED EFFORTS &c SIGNIFICANT ACTIVITIES 

During Fiscal Year 2001 , MFCU brought both criminal and civil enforcement actions against hospitals, 
nursing home owners, pharmacies, physicians, dentists, home health care companies, billing intermediaries, 
and other medical providers. These enforcement actions focused on providers that misrepresented the 
services they provided to the Medicaid program, inflated the costs of their services, provided medically 
unnecessary services, or violated Medicaid's anti-kickback laws. As a result of its efforts, MFCU initiated 
and completed over 100 investigations, obtained 29 indictments, secured convictions against corporate 
and individual defendants and recovered in excess of $2.6 million. 

In an effort to ensure that some of the most vulnerable patients were not abused, MFCU devoted 
significant resources to investigating patient abuse and neglect complaints in the Commonwealth's 550+ 
long-term care facilities. As part of this endeavor, MFCU staff actively participated in the State Working 
Group on Nursing Home Patient Abuse. This group, comprised of various state and federal agencies, was 
established to coordinate interagency efforts regarding nursing home abuse, neglect and bankruptcy. 



BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT 

In addition, MFCU investigated physicians and psychiatrists that prescribed controlled substances for 
non-medical reasons, or not supported by medical diagnosis or necessity. MFCU investigated dentists 
and durable medical equipment companies for upcoding and unbundling their services. Pharmacy chains 
and pharmaceutical companies that overcharged the Medicaid program and inflated the costs of prescription 
drugs were another arena that MFCU delved into. And, in Fiscal Year 2001 , MFCU also investigated the 
relationships between physicians, hospitals, and laboratories to detect illegal referrals, kickbacks and 
conflicts with patient care. 



SIGNIFICANT CASE SUMMARIES 



The following provides an overview of cases undertaken by MFCU during Fiscal Year 2001 . 

• Commonwealth v. Theresa Silbaugh & Bernard Singleton (Hampden Superior Court) 
Springfield nursing home bookkeeper and her boyfriend were charged with embezzling funds 
from patients' personal spending accounts. Silbaugh, the bookkeeper, was sentenced to five 
years probation, 500 hours of community service, and ordered to pay $ 1 0,000 restitution. She 
is also barred from working with the elderly or in any position that requires the handling of 
funds. Singleton, the boyfriend, received a six-month suspended sentence, two years probation, 
and was ordered to pay $2,000 in restitution and $685 in fines for his role in accepting and 
cashing the checks written by Silbaugh. 

• Commonwealth v. Mohammad Sadatrafiei (Suffolk Superior Court) The defendant, a 
dentist, billed over one hundred services relating to 4 1 patients that were never administered, 
and altered patient files to correspond to the fraudulent bills. The defendant pleaded guilty to 
Medicaid False Claims, and received a six-month committed sentence, and was ordered to pay 
$135,000 restitution. 

• Commonwealth v. Azam Sadatrafiei (Suffolk Superior Court) The defendant, a 
pediatric dentist in practice with her brother, was charged with overbilling and upcoding, the 
practice of performing a procedure, and billing it as a different, more expensive procedure. 
Azam Sadatrafiei pleaded guilty and was sentenced to six months in the House of Corrections. 
A concurrent civil complaint was filed, which resulted in a $45,000 settlement. 

• Commonwealth v. Robert Picard (1 lampden Superior Court) Picard, a pharmacist, 
submitted 395 fabricated invoices for Medicaid reimbursement, illicitly obtaining $8,800 in 



M 



BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT 

Medicaid funds for prescriptions that were never actually submitted or filled. Picard used the 
names of 1 2 Medicaid recipients who were current or former customers of the pharmacy in 
perpetrating this scheme. He was sentenced to one year in the House of Corrections, with six 
months to be served in home confinement, plus restitution and a $5,000 fine. 

• Commonwealth v. Center for Health and Human Services (Federal District Court) 
This non-profit provider of mental health counseling, substance abuse treatment, and other 
health services in Southeastern Massachusetts, pled guilty in connection to a scheme to charge 
both Medicaid and Medicare for the same services. 

Working with the United States Attorney's Office, the Massachusetts Attorney General's 
Medicaid Fraud Control Unit reached an agreement that placed the New Bedford based 
company on four years probation and ordered its compliance with the terms of a civil settlement 
agreement and corporate integrity agreement. The company also agreed to pay a $500,000 
civil settlement to the United States and Massachusetts for the fraudulent claims submitted to the 
Medicare and Medicaid programs and to state contracts funding substance abuse and mental 
health counseling services. 

• Commonwealth v. Jody Lynn Gaumond (Lowell District Court) A former bookkeeper 
at a Tewksbury nursing home admitted to stealing money from a 93-year-old resident's personal 
allowance account. Gaumond, as bookkeeper, was in complete control of the residents' 
Personal Needs Account, which contained the nursing home residents' personal allowance 
monies. The Attorney General's investigation revealed that sometime in 1997, she began 
manipulating various nursing home financial records. Gaumond pleaded guilty and was 
sentenced to one year in the House of Correction, suspended for two years, and was ordered 
to remain on supervised probation for the two-year period. She was also ordered to pay 
restitution and criminal fines. 

CIVIL ENFORCEMENT ACTIONS 



• Commonwealth v. Franvale Nursing Home A national health care corporation with 
headquarters in Peabody, agreed to settle allegations that its subsidiary neglected their elderly 
and disabled residents. The corporation also agreed to pay $660,000 to settle allegations that it 
improperly billed the Medicaid program for skilled nursing services that it did not provide. 



55 



BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT 

Beginning in October of 1 996, nursing home experts, retained by the Medicaid Fraud Control 
Unit, found nursing staffing levels too low to meet the basic health or safety needs of the 
residents leading to conditions of neglect. The inadequate staffing led to high rates of medication 
errors, inadequate supervision to prevent accidents, failure to ensure patients received adequate 
fluids and nutrition, and lack of proper repositioning to prevent skin sores to hundreds of 
residents. As a result of these repeated failures to meet required standards of health, numerous 
patients suffered harm or were placed in situations that increased their risk of harm. 

Medicaid was paying the nursing home an average of $227,000 per month in skilled nursing 
services for approximately 80 Medicaid-covered patients. The Medicaid Fraud Control Unit 
conducted a two-year investigation of the nursing home and its corporate parent office and 
found that the nursing home was paid hundreds of thousands of dollars by the state's Medicaid 
program for long-term care services that it knew to be inadequate. 

In early January 1997, a 90-year-old woman suffering from Alzheimer's disease fell down a 
stairway at the facility sustaining life threatening injuries. During an investigation of the incident 
by the Department of Public Health (DPH), it was discovered that she had fallen at least 16 
times before, sustaining serious injuries on two occasions. Not only did the facility fail to 
prevent these repeated falls, but it also failed to report the incidents to the Department of Public 
Health as required by state law. Some other examples of the neglect which occurred at the 
facility during this period include: ( 1 ) A 96-year-old man with end-stage pulmonary disease 
received 1 5 times the ordered dose of morphine which put him at great risk for respiratory 
failure; (2) A 50-year-old woman with a neurological disorder suffered repeated injuries from 
frequent falls due to inadequate staffing levels and a failure to provide needed preventive 
measures and (3) An 8 1-year-old Alzheimer's patient suffered injuries as the result of falling, as 
well as severe dehydration due to inadequate nursing supervision and care planning to meet his 
needs. 

The parent corporation, Pioneer Health Care, in a written agreement signed by its CEO, agreed 
to pay $660,000 in restitution, damages and costs to the Commonwealth of Massachusetts, to 
submit a corporate compliance plan, and to submit to the Attorney General's Office for 
approval any plans to operate a health care facility in Massachusetts during the next five years. 

• Commonwealth v. Lincare Inc A medical equipment company that provided durable 
medical products to the Commonwealth's Medicaid program agreed to pay $ 1 27,000 to settle 
allegations of billing violations. The agreement resolved charges that the company billed the 
Medicaid program for services it could not substantiate. 



34 



BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT 

Lincare allegedly billed the Medicaid program for patients covered by Medicare and, further, 
did not have the proper documentation for the goods and services that it purportedly provided 
to recipients. A MFCU investigation turned up unsigned and misleading delivery slips and 
discrepancies between the number of items billed and the number of items actually delivered. In 
some instances, the company was unable to produce the physician prescriptions that would 
have shown the products were medically necessary. 

• Commonwealth v. Pioneer Development Services, Inc. A child services provider and 
the facility's executive director agreed to return more than $ 1 05,000 to the Department of 
Public Health (DPH) for Medicaid-related services and to pay $ 1 0,000 in additional penalties. 
The settlement resolved a lawsuit brought by MFCU, which alleged that the facility overcharged 
the state for early intervention services. The provider allegedly charged Medicaid for services 
provided to children in group settings despite having already received payment from the Division 
of Medical Assistance or other third party payors. 

In addition to reimbursing the Department of Public Health and paying $ 1 0,000 to the Attorney 
General's Office for investigative costs, the provider and its executive director agreed to appoint 
a corporate integrity officer whose duties will include the review of all contracts between the 
provider and any governmental entity for compliance with all regulations, codes and statutes. 

• Commonwealth v. Center for Living and Working, Inc. This independent living center 
agreed to reimburse the state's Medicaid program more than $300,000 in a civil settlement 
reached by the Medicaid Fraud Control Unit. The settlement concluded a nine-month 
investigation conducted by MFCU into the Medicaid-billing practices of the provider, a non- 
profit corporation with offices in two Worcester locations. 

The investigation focused on the provider's acceptance of a $322,254 pre-payment from the 
Medicaid program in 1 990 for personal-care attendant services. The Medicaid program 
neglected to post the advance payment but the provider kept the money and never notified 
Medicaid of the mistake. The provider agreed to repay the Medicaid program the entire 

$322,254. 

The independent living center has been a provider of these services since the inception of a 
personal-care attendant program in 1 983 that provided caregivers for chronically disabled 
Medicaid recipients, permitting them to remain in the community and out of institutional housing. 
Personal care attendants help disabled, often wheelchair-bound, Medicaid recipients bathe, 
prepare meals, run errands, shop and with light housekeeping. The types of services provided 



35 



BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT 

by personal care attendants do not overlap with medical treatments, which are usually 
administered by visiting nurses and home health aides and are reimbursed separately by 
Medicaid. 



OUTREACH 

The important work done by MFCU does not end with investigating and prosecuting cases of nursing 
home abuse and fiscal abuse of the Medicaid system. Outreach and education initiatives, including speaking 
engagements and trainings are an integral component of high level of efficiency exemplified by the MA 
MFCU. 

During Fiscal Year '0 1 , MFCU presented a three-session training program for over 40 new Department 
of Public Health/DHCQ nursing home patient abuse and neglect investigators. A fourth session has been 
planned. These training sessions focused on innovative prosecutorial strategies devised to ensure that 
those would harm among the most vulnerable of populations are held fully accountable for their actions. 
Funding for this important program was appropriated in response to MFCU's conviction of Stacey Arruda 
for nursing home patient abuse. Trainings such as these reflect MA MFCU's commitment to protect the 
vulnerable populations in nursing homes. 

MFCU staff also made presentations to the MBA Health Law Section, discussing the Stark Regulation 
and self-referral violations and to MCLE, regarding health and hospital law. MFCU staff also addressed 
the MA Nursing Home Administrators, regarding the benefits of a complete internal investigation. 

Two of the MA MFCU assistant attorneys general attended the National Association of Medicaid 
Fraud Control Unit's annual conference, where they had been invited to make a presentation. The 
presentation regarded the successful prosecution of the Fran vale Nursing Home case, and addressed 
corporate neglect investigations and prosecutions. With representatives from MFCUs nationwide, this 
presentation made a great impact on ensuring that crimes against nursing home populations would be 
pursued using thorough, well-researched and innovative means. 



DIVISION STATISTICAL SUMMARY 

MFCU investigates both health care fraud and patient abuse cases. In Fiscal Year '01, MFCU 
investigated over 550 instances of possible health care fraud, and over 380 allegations of patient abuse. 



36 



BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT 

Of these numerous cases investigated, over 1 50 were formally opened as cases. The past Fiscal Year saw 
1 5 civil indictments handed down and 1 4 criminal indictments, in addition to seven criminal dispositions. 
The restitution recovered by MFCU 's investigators and attorneys on behalf of the Commonwealth 's taxpayers 
was in excess of $2.6 million. 



37 



COMMUNITY-BASED 
JUSTICE BUREAU 

Victim Compensation and Assistance Division 
Safe Neighborhood Initiative Division 



COMMUNITY-BASED JUSTICE BUREAU 



Community-Based Justice Bureau 



The mission of the Community-Based Justice Bureau (CBJB) is to develop strategies, structure policies 
and offer recommendations that prevent crime and promote the safety, health and welfare of Massachusetts 
residents and those who live and work in the Commonwealth. The Bureau focuses particular attention on 
the needs of children, crime victims and victims of domestic violence, and reflects the community-based 
approach of Attorney General Reilly The Bureau also administers the Victim Compensation and Assistance 
Division and the Safe Neighborhood Initiative Division. 

The Bureau develops and coordinates initiatives through training and education, publications and 
guidelines, programs, community outreach and legislation. Working closely with law enforcement, state 
and local agencies and community programs, CBJB concentrates its efforts in the areas of child protection, 
including juvenile justice, education and school safety, family violence, community safety, victim rights, and 
criminal justice policy. CBJB advises Attorney General Tom Reilly on policy and legislative matters in 
these areas. 

During Fiscal Year '0 1 , the Bureau included the following staff members: Beth Merachnik, Chief; 
Barbara Berenson; Michelle Booth; Jean Fanning; Elisabeth Medvedow; Kristen Palma; Emily Paradise; 
Christina Ruccio, and Maria Vega. 



HIGHLIGHTED EFFORTS & SIGNIFICANT ACTTvlTIES 



CHILD PROTECTION 



Children's Protection Project Attorney General Tom Reilly's Children's Protection Project 
reflects his commitment to addressing the needs of the children of the Commonwealth. The initiative, 
which draws on the expertise of staff in all bureaus and in all regional offices, is housed in the 
Community-Based Justice Bureau. This cross-bureau initiative addresses issues concerning 
children, including violence prevention strategies, health care, legislation, education, juvenile justice 
and gang violence, child labor, tobacco prevention efforts, gun safety, and other topics that impact 
children. In addition, the Children's Protection Project (CPP) serves as an avenue for bureaus 



COMMUNITY-BASED JUSTICE BUREAU 



within the Attorney General's Office to focus their resources and consider the issues that affect 
children. 

During the first half of Fiscal Year 2001 , Bureau staff led a legislative initiative undertaken by the 
Children's Protection Project. According to the plan and schedule devised by CBJB staff, CPP 
members met in legislative subcommittees to review current statutes and pending bills and to 
recommend new legislative initiatives to Attorney General Tom Reilly The subcommittees drafted 
legislative bills for the Attorney General 's legislative package filed on December 6, 2000. Among 
other topics, the initiatives addressed issues of child abuse, child enticement, child pornography, 
children's safety and terroristic threats. 

During the last half of the Fiscal Year, CPP was restructured, with the creation of a Steering 
Committee with representation from the entire office. New subcommittees were formed and 
included: Legislation, Communication and Outreach, Education and Training, Community Service 
and New Initiatives. An office-wide information session/open enrollment period was completed 
during the last quarter and approximately 60 OAG staff members joined a CPP subcommittee. 

Toy Drive In December 2000, CPP sponsored a highly successful toy drive which provided 
approximately 300 toys to children for holiday celebrations at the Colonel Daniel Marr Boys & 
Girls Club and the Bowdoin Street Health Center in Dorchester. Staff in the regional offices also 
collected toys for local distribution. 

Youth Empowerment Skills (YES) Project The YES Project, funded by a Byrne Memorial 
Grant awarded by the Executive Office of Public Safety (EOPS) and matching funds from the 
Office of the Attorney General, was established in October 2000 in response to a need for after- 
school and violence prevention programming identified by the Dorchester Safe Neighborhood 
Initiative. The project is hosted by, and was created in partnership with, the Daniel Marr Boys and 
Girls Club of Dorchester. The goal of the YES Project is to provide extensive training and educational 
enrichment opportunities to staff and youth at the Paul R. McLaughlin Youth Center. Through the 
YES Project, Attorney General Tom Reilly seeks not only to provide teens with supervised, after- 
school activity but also to offer at-risk youth a meaningful life skills education that helps them to 
avoid risky behavior which may lead to school failure, substance abuse, involvement in the criminal 
justice system, and victimization by crime. 

During this Fiscal Year, a YES Project Manager was hired to develop and implement the YES 
Project. Early on, the Project Manager organized an OAG staff meeting to present volunteer 
opportunities for the YES Project, and also conducted recruitment at the Suffolk County District 



42 



COMMUNITY-BASED JUSTICE BUREAU 



Attorney's Office. The Project Manager, along with other CBJB staff, planned an opening reception 
for the YES Project which included a tour of the facility. The Project Manager also undertook the 
development and implementation of the curriculum which included, among other things, a weekly 
tutoring program, a ten- week civil rights training curriculum, a week-long peer mediation training, 
and workshops on topics such as teen dating violence and Internet safety. 

Bureau staff completed and submitted the Year 2 YES Project grant application to EOPS and 
secured $60,000 in funding. 

Artwork created by the youth at the Paul McLaughlin Youth Center was used in a new victim 
compensation poster. The posters were displayed in the lobby of the McCormack State Office 
building at One Ashburton Place in recognition of Victim Rights Week, April 22-28, 2001 . 

Prevention Resource Guide Bureau staff developed and disseminated Volume II of the Prevention 
Resource Guide, which describes over 1 00 school, after-school and community-based programs 
addressing school safety, child protection, conflict resolution, daring violence prevention, substance 
abuse prevention, peer leadership, violence prevention, truancy, and gang prevention. 

CPP Seminar CPP sponsored a seminar for OAG staff, presented by the Department of Public 
Health, on The Report on Pregnancy- Associated Deaths in Massachusetts. 

Juvenile Firesetters A Bureau member attended meetings of the Juvenile Firesetters Roundtable 
convened by the Middlesex County District Attorney's Office and the Office of the State Fire 
Marshall at the Executive Office of Public Safety. The Roundtable engages in ongoing dialogue 
concerning the special concerns raised by juvenile firesetters. 

Child Abandonment Bureau staff attended the Baby Abandonment Symposium in Washington, 
DC, sponsored by the Child Welfare League of America. Staff researched the state of the law 
regarding baby abandonment and the policies underlying baby abandonment legislation. 

Citizens Schools Bureau staff spearheaded Attorney General Reilly's Office participation in the 
Citizen Schools mock trial apprenticeship program. Staff organized formation of an OAG Team 
for students from the Wheatley Middle School in Roxbury. Mock trials were held in December 
2000 and May 2001, with several OAG staff serving as jurors. 

MDAA Juvenile Justice Subcommittee A Bureau attorney participated in monthly meetings 
of the Massachusetts District Attorneys Association Juvenile Justice Subcommittee. 



43 



COMMUNITY-BASED JUSTICE BUREAU 



• Norfolk County District Attorney's Children's Advocacy Center Advisory Board A Bureau 
member participated in meetings of the Norfolk County District Attorney's Children's Advocacy 
Center Advisory Board. 

• Statewide Child Fatality Review Team A Bureau member participated in meetings of the 
Statewide Child Fatality Review Team, convened to review child deaths. 

DOMESTIC VIOLENCE 



Building Bridges of Support for Mothers who are Victims of Domestic Violence Fiscal 
Year 2001 saw the successful continuation of the Violence Against Women Act (VAWA) grant- 
funded Building Bridges of Support for Mothers who are Victims of Domestic Violence Project. 
Under the grant, CBJB staff developed and implemented a training program for prosecutors, 
victim witness advocates, advocates from battered women's programs and police officers on the 
special needs of battered women who have children. In the previous Fiscal Year, CBJB staff 
began developing the initiative as a collaborative project and utilized a multi-disciplinary steering 
committee to design training activities. The steering committee, comprised of members of CBJB, 
the Victim Compensation and Assistance Division, the Child Witness to Violence Project at Boston 
Medical Center, the Violence Against Women Training and Policy Institute of the Massachusetts 
District Attorneys Association, the Norfolk County District Attorney's Office, the Suffolk County 
District Attorney's Office, the Domestic Violence Unit of the Massachusetts Department of Social 
Services, Jane Doe, Inc. and the Medford Police Department, played a critical role in identifying 
training topic areas and speakers. 

The training, Building Bridges of Support for Mothers who are Victims of Violence, was divided 
into two stages. Phase I consisted of a one day regional training, conducted in Plymouth and in 
Northampton, for assistant district attorneys and victim witness advocates and covered, among 
other topics, trauma, the victim's experience in the criminal justice system, the effects of domestic 
violence on children, criminal prosecution and the role of public agencies. Phase I was completed 
in June 200 1 . Phase II, scheduled for September 2001 , will include a one day regional training 
program in both Springfield and Newton for police officers and advocates from battered women 's 
programs. Upon completion of the training component, a domestic violence resource manual will 
be organized and distributed to district attorney's offices and domestic violence victim witness 
advocates. 



44 



COMMUNITY-BASED JUSTICE BUREAU 



• Teen Dating Violence CBJB staff wrote and published Teen Dating Violence & Restraining 
Orders: The Law and Safety Planning, a brochure answering questions for teens on dating 
violence, restraining orders and the court process, and safety planning. The brochures were 
distributed to prosecutors, educators, libraries, YMCAs and Boys and Girls Clubs. An additional 
1 0,000 brochures were distributed in response to requests from the community and state agencies. 
StafTalso consulted on a teen dating violence videotape developed by the Department of Education. 

• Statewide Prosecutors and Advocates Domestic Violence Conference CBJB staff played 
an integral role in planning the Massachusetts District Attorneys Association's Sixth Annual Domestic 
Violence Conference, in May 2001 . Staff members, in collaboration with Criminal Bureau staff, 
developed programs for the conference and participated in a panel presentation titled Cybercrime. 

• Governor's Commission on Domestic Violence Bureau staff attended and participated in 
meetings of the Governor's Commission on Domestic Violence. 

• MDAA Meetings A bureau attorney participated in monthly meetings of the Massachusetts 
District Attorneys Association Domestic Violence Subcommittee. 

• Employers Against Domestic Violence (EADV) Bureau members attended an EADV 
conference and EADV meetings. During the year, Bureau staff reviewed the AGO's Human 
Resource Policy and Domestic Violence and Victim Compensation staff presented on issues related 
to the victim compensation program. 

• Corporate Citizenship Initiative Conference Bureau staff participated in planning the Corporate 
Citizenship Initiative Conference sponsored by the Family Violence Prevention Fund to provide 
employers across the state with information about domestic violence workplace policy and training 
programs. 

SCHOOL SAFETY 



Safe Schools Newsletter Bureau staff produced and distributed the Safe Schools Newsletter to 
school administrators, police chiefs and District Attorneys throughout the state. Topics included 



45 



COMMUNITY-BASED JUSTICE BUREAU 



hate and harassment, civil rights, high tech and computer crimes, environmental health and safety in 
schools, and legal updates and legislation concerning issues applicable to schools. 

MATS (Multi-Agency Task Force) Bureau members participated in MATS team effort, along 
with Criminal Bureau staff, to address environmental health and safety issues in public schools in 
the Commonwealth. Staff worked to develop potential statewide training on issues of environmental 
concern for schools. 



INTERNET SAFETY 



Bureau staff continued to respond to requests for school trainings on Internet safety. 



SUBSTANCE ABUSE 



Attorney General's Statewide College and University Coalition on Underage and Problem 
Drinking During the 2001 Fiscal Year, CBJB staff continued to lead the coalition on underage 
and problem drinking. The Coalition, comprised of representatives from approximately 25 colleges 
and universities throughout the state, focused on developing creative solutions to the problem of 
underage and binge drinking on college and university campuses. The objective of the Coalition 
was to develop a cooperative agreement committing the colleges and universities to undertake 
specific prevention, intervention and enforcement efforts concerning alcohol use and abuse on 
campus. The Coalition continued its work on drafting a cooperative agreement and the agreement 
was presented to the Coalition. The Coalition met regularly at the College of the Holy Cross in 
Worcester. 

Governor's Advisory Council on Substance Abuse A Bureau member attended monthly 
meetings of the Governor's Advisory Council on Substance Abuse. 

Mothers Against Drunk Driving Bureau staff participated in Mothers Against Drunk Driving 
public policy meetings and advised on developing legislation to strengthen laws on motor vehicle 
homicide, repeat offenders, and implied consent. 

Emerging Drug Task Force A Bureau member participated in the Department of Public Health's 
Emerging Drug Task Force. 



46 



COMMUNITY-BASED JUSTICE BUREAU 
HATE CRIMES 



• Attorney General's Hate Crimes Task Force CBJB staff actively participated in the Attorney 
General's Hate Crimes Task Force. Initiatives included developing and implementing a series of 
proposals focusing on education and training, publications and community involvement. One 
particular proposal consisted of model documents intended for use by schools, including model 
memorandum of understanding, a discipline code and protocol. CBJB staff served as co-chair of 
the Subcommittee on Training, Education and Prevention. 

• Massachusetts Hate Crimes Training Team A CBJB staff person served as a member of this 
U.S. Department of Justice Initiative. The CBJB representative, as part of the team, conducted 
hate crimes training for local area police departments. 

SPORTS IN VIOLENCE PROJECT 

• Massachusetts Alliance for the Promotion of Sportsmanship CBJB collaborated with the 
Criminal Bureau in establishing the Massachusetts Alliance for the Promotion of Sportsmanship 
(MAPS), co-convened by AG Reilly and Suffolk County District Attorney Ralph Martin. 
Established in response to several well-publicized incidents of sports violence, MAPS seeks to 
advance collaborative initiatives in an effort to generate a culture in Massachusetts that fosters 
healthy attitudes and responsible conduct by athletes, coaches, officials and spectators of all ages. 
MAPS membership includes law enforcement, professional sports teams, college athletes and 
high school sports programs. 

LEGISLATION 



Legislative Activity Bureau staff members drafted, reviewed and commented upon legislative 
proposals. Some examples include: 



47 



COMMUNITY-BASED JUSTICE BUREAU 



drafting, developing and completing legislative proposals for the Children's Protection 
Project, filed on December 6, 2000, as part of Attorney General Tom Reilly's legislative 



• drafting testimony in support of pending legislative bills, including those on child enticement, 

assault and battery on a child, the victim compensation statute and the Dodge bill, which 
would allow judges to impose pre-trial conditions on defendants pursuant to the general 
bail statute. 

recommending amendments to pending legislative proposals concerning the victim 
compensation statute and enactment of a criminal profits bill; and 

reviewing MC AS and other school-related legislation. 

Employers Against Domestic Violence (EADV) Employment Law Legislative 
Subcommittee A Bureau attorney participated in meetings of the EADV Employment Law 
Legislative Subcommittee. The Subcommittee drafted a legislative proposal filed on December 6, 
2000. 

MDAA Meetings A Bureau attorney participated in monthly meetings of the Massachusetts 
District Attorneys Association Legislative Subcommittee to review and prioritize pending or proposed 
criminal justice legislation. 



SIGNIFICANT CASES & COURT ACTIVITY 



AMICUS BRIEFS 

• Commonwealth v. Milo M. A Bureau member drafted an amicus curiae brief on the issue 
of what constitutes a "threat," submitted on behalf of Attorney General Tom Reilly's Office in a 
case before the Supreme Judicial Court. The SJC's ruling upheld the Juvenile Court's decision 
(supported by the OAG's brief) that a juvenile's drawing that depicted him shooting his teacher 
constituted a threat. 

• Commonwealth v. Liang A Bureau member drafted an amicus curiae brief addressing 
discovery of the notes of a victim witness advocate, submitted on behalf of Attorney General 



COMMUNITY-BASED JUSTICE BUREAU 



Tom Reilly's Office in a case before the Supreme Judicial Court. The SJC ruled that the 
advocate's notes were protected by the work-product privilege, which was the position 
supported by the OAG. Assistance on the brief was provided by the Massachusetts Office for 
Victim Assistance. 

• Commonwealth v. Finase A Bureau member prepared an amicus curiae brief, to be filed 
in July 200 1 , arguing that a "no contact" order issued under the c. 209A restraining order law 
included within it, as a component part, a "stay order." The Supreme Judicial Court agreed, 
stating that staying away is the most fundamental and important form of not contacting another 
person. 

• Commonwealth v. Damian D., A Juvenile A Bureau member and a member of the 
Criminal Bureau drafted an amicus curiae brief asking the Supreme Judicial Court to rule that 
school searches are lawful so long as they are reasonable under all the circumstances. The SJC 
did not reach that issue in its opinion. 



OUTREACH &c EDUCATION INITIATIVES & TRAINING 



INTERNET SAFETY 

Attorney General Tom Reilly has made Internet safety one ofhis top priorities, with Bureaus throughout 
the Office focusing on the issue. 

• Webcast for Internet Safety In June 200 1 , Attorney General Tom Reilly conducted an Internet 
webcast, Internet Safety: Tips from Kids Who Know, at the Fuller Middle School in Framingham. 
The event was also broadcast via satellite to schools across Massachusetts, and reached over 
20,000 students across the state, as well as students from Florida and California. The highly 
successful webcast was the result of a proposal developed by members of CBJB and the Criminal, 
Executive and Public Protection Bureaus. 

• School Trainings CBJB staff, in conjunction with staffof the Criminal Bureau and the regional 
offices, conducted trainings on Internet safety throughout the Commonwealth. Among them were 
presentations at the Paul McLaughlin Youth Center (for staff and students), the Memorial Middle 
School in Medway (for parents), the Williston School in Easthampton (for parents), and at a 



49 



COMMUNITY-BASED JUSTICE BUREAU 



conference of five northern and central Massachusetts junior high schools (for approximately 200 
students). 

• Safe Schools Summit CBJB staff planned and presented a workshop at the Safe Schools 
Summit sponsored by the Middlesex County District Attorney's Office. The presentation addressed 
the Internet and school discipline. 

• A Bureau member served as a panelist at Springfield Police Department's Safe Schools, Healthy 
Students Conference on Internet issues. 

SAFE SCHOOLS/SCHOOL VIOLENCE 



• Bureau staff presented Guidelines for School Crisis Management Plan to the Massachusetts 
Secondary School Administrators Association, to Bromfield High School faculty members in 
Harvard and, with staff from the Worcester office, at an in-service training for faculty at the Julie 
Country Day School in Leominster. 

• A CBJB member, along with Worcester regional office staff, conducted trainings for several student 
groups on diversity and tolerance, and bullying and harassment. 

Bureau staff, along with staff of the Criminal and Public Protection Bureaus, planned the 
Massachusetts Healthy Schools Council Meeting for May 4, 2001 , hosted by the OAG. The 
Healthy Schools Council, comprised of representatives from a wide range of state agencies involved 
in environmental issues, provides information and training to school districts on issues of environmental 
health and safety in the schools. 

HATE CRIMES 



Protecting Students from Hate Crimes and Harassment Training Series CBJB staff, in 
collaboration with the Civil Rights Division, developed promotional materials and substantive content 
for a training series titled, A Prerequisite for Safe Schools: Protecting Students from Harassment 
and Hate Crimes. The first regional training was held in November 2000 in Northampton and the 
second in February 2001 in Framingham. Staff developed and facilitated workshops on such 
topics as: establishing a comprehensive civil rights program, identifying and responding to harassment 



SO 



COMMUNITY-BASED JUSTICE BUREAU 



and hate crimes, fostering a school climate that appreciates diversity, and creating successful 
partnerships between schools, law enforcement and the community. Third and fourth regional 
conferences are planned for FY 2002. 

• The CBJB member of the Hate Crimes Training Team conducted hate crimes training for law 
enforcement officials. 

• A CBJB member, along with the Worcester regional office staff, conducted trainings for several 
student and teacher groups on diversity and tolerance, and bullying and harassment. 

• CBJB and regional office staff presented two workshops at the Peacemakers Summit at Hampshire 
College: Recognizing and Preventing Bullying and Harassment and Hate Crimes. 

DOMESTIC VIOLENCE 



• Bureau staff presented on domestic violence and confidentiality issues for Violence Against Women 
(VAWA) trainings for grantees, law enforcement officials and civilian advocates. 

• CBJB staff spoke on domestic violence and the criminal justice process to various groups, including 
the Governors Commission/Domestic Violence conference, Project Tikva/Family Law Attorneys, 
Harvard Law School students, the Jewish Family and Children's Services Board, Independence 
House in Hyannis, and medical and public health students at Boston University. 

• Bureau members and regional office staff conducted trainings on teen dating violence for McLaughlin 
Youth Center staff and for public school students. 

IMMIGRATION 



Bureau staff assisted the Worcester regional office and the Immigrant Outreach Project of the 
Business and Labor Protection Bureau in developing a community outreach plan for Central 
Massachusetts. Educating, Empowering and Protecting: A Symposium on Immigrant Issues 
in Central Massachusetts was held on May 3 1 , 200 1 . The program's aim was to foster greater 
collaboration among agencies serving immigrant populations in Western Massachusetts. The event 
included workshops on workers' rights, family and cultural considerations, and discrimination in 
housing, education and the workplace. Bureau staffpresented at the symposium on family issues. 



51 



COMMUNITY-BASED JUSTICE BUREAU 
CRISIS RESPONSE TRAINING 



• Bureau staff served as a member of the Cambridge Health Alliance Community Crisis Response 
Team, which provides crisis response in the aftermath of trauma to communities in crisis. 

INTERNAL WORKING GROUPS 

Attorney General Tom Reilly places a high priority on creating a strong, cohesive workforce. In an 
effort to eliminate barriers and encourage collaboration among the several bureaus and divisions within the 
Office, the Attorney General created a number of internal working groups. CBJB staff participated in 
several of those groups, among them: 

• A Bureau member participated in the Interoffice Gun Task Force. 

• CBJB staff facilitated Anti-Discrimination/Sexual Harassment trainings. 

• Bureau staff directed the Diversity Committee, Lecture Series and Mentor Program. 

• A Bureau member coordinated and facilitated the OAG School Violence Task Force. 

• CBJB staff participated in the Racial Profiling Working Group. 

PUBLICATIONS 



Law Enforcement Newsletter A staff attorney produced the Winter 2000 - 200 1 edition of the 
Law Enforcement Newsletter, which was distributed to approximately 1 ,500 law enforcement 
officers, prosecutors and others in the law enforcement community. Topics addressed matters of 
interest to the law enforcement community including, among other things, newly enacted laws, 
case law updates, domestic violence, victim compensation, and a high technology and computer 
crimes update. A Bureau attorney also drafted the Domestic Violence Update for the Winter 

2000 - 2001 edition of the Law Enforcement Newsletter. 

Safe Schools Newsletter Staff drafted articles for and coordinated development of the January 

200 1 edition of the Safe Schools Newsletter. The newsletter included articles on stemming hate- 



^2 



COMMUNITY-BASED JUSTICE BUREAU 



motivated violence in the schools, protecting students against harassment based on disability, and 
recent legislation and case law. The newsletter was distributed to an audience of over three 
thousand, including school administrators (public and private), police chiefs and District Attorneys. 

Teen Dating Violence & Restraining Orders: The Law and Safety Planning CBJB staff 
wrote and published this brochure answering questions for teens on dating violence, restraining 
orders and the court process, and safety planning. The brochures were distributed to prosecutors, 
educators, libraries, YMC As and Boys and Girls Clubs. An additional 1 0,000 brochures were 
distributed in response to requests from the community and state agencies. 

Children 's Protection Project Prevention Resource Guide In the summer/fall of 1 999, CBJB 
staff surveyed Massachusetts school superintendents, principals and police chiefs in an effort to 
gather information for the Pre\>ention Resource Guide, which would address local programs for 
youth. The Prevention Resource Guide offers a brief description of over 100 school, after- 
school and community-based programs, including initiatives addressing school safety, child 
protection, conflict resolution, dating violence prevention, substance abuse prevention, peer 
leadership, violence prevention, truancy, and gang prevention. The Resource Guide also specifies 
the program location, contact person and telephone number. In the spring of 2000, Attorney 
General Tom Reilly distributed the Prevention Resource Guide, Volume I, to school superintendents 
and police chiefs across Massachusetts. 

In the last quarter of Fiscal Year 2000, the Bureau initiated its outreach to schools and police 
departments in anticipation of Volume II of the Prevention Resource Guide. The Prevention 
Resource Guide, Volume II, including updated information and additional entries, was completed 
and distributed in April 200 1 . 

Employers Against Domestic Violence Newsletter Staff attorney drafted the Legal Update 
for the Employers Against Domestic Violence Newsletter, covering recent case law and legislation 
addressing issues of victim confidentiality, abuse prevention orders, firearms and stalking. 

The Internet, Your Child, And You: What Every Parent Should Know and Internet Safety: 
Advice from Kids Who Have Faced Danger Online Bureau staff continued to distribute 
copies of parent and student guides. 



53 



COMMUNITY-BASED JUSTICE BUREAU VICTIM COMPENSATION ASSISTANCE 

VICTIM COMPENSATION & ASSISTANCE DIVISION 

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, funeral and burial and other crime-related 
expenses. Since 1 994, the Division has assumed legal and administrative responsibility for receiving, 
investigating and determining all compensation claims in accordance with the requirements of G.L.c. 258C. 
Previously, compensation claims were determined through a litigation-based process in the district courts. 
In addition, during this Fiscal Year, the Office of the Attorney General assumed responsibility for the 
payment of claims, taking over that responsibility from the State Treasurer's Office. 

HIGHLIGHTED EFFORTS & SIGNIFICANT ACTIVITIES 

CLAIMS ACTIVITY 



In Fiscal Year 200 1, the Victim Compensation and Assistance Division undertook efforts to increase 
public awareness of the program through training, publications and new outreach materials. The Division 
received 1 ,509 new claims during the Fiscal Year. 

Under G.L.c. 258C, claimants who are not satisfied with decisions made on their claims, either to 
award or deny compensation, have the opportunity to request an administrative and/or judicial reconsideration 
of their claim. In Fiscal Year 2001, 39 claimants, approximately 2.5% of all claimants, requested 
administrative review. Thirty-one of those claims were reviewed and decisions were affirmed. The remaining 
eight were modified or reversed. Seven claimants requested judicial review. 

The number of homicide claims increased from 1 40 last year to 1 94 this year. 
EXPENDITURES 



In Fiscal Year 200 1 , the Commonwealth awarded over $3,000,000 in compensation claims to crime 
victims, with roughly $ 1 ,903,000 coming from state funds and the remainder coming from federal funds. 
This marks an approximate nine percent increase from last year. FY 2001 represented the sixth consecutive 
year that the Division had adequate funding to support its expenditures. 



54 



COMMUNITY-BASED JUSTICE BUREAU VICTIM COMPENSATION ASSISTANCE 



PROGRAM EVALUATION 

An applicant survey is sent to each claimant with decisional letters. The Division received 440 completed 
surveys from claimants. Surveys were overwhelmingly positive, with more than 86% of claimants agreeing 
or strongly agreeing that applications are easy to complete and letters easy to understand, that victim 
compensation staff treated them with courtesy and respect, that their questions were answered, and that 
they were satisfied with the decision on their claim and the amount of time it took for processing. 

FEDERAL REPORTING REQUIREMENTS 

The Division submitted its annual Certification Report and Quarterly Reports to the Office for Victims 
of Crime during Fiscal Year 200 1 . An effort to centralize reporting requirements between the Office of the 
Attorney General and the State Treasurer's Office was successfully completed, which transferred 
responsibility for the payment of claims from the State Treasurer's Office to the Office of the Attorney 
General. 

LEGISLATIVE ACTIVITY 



Division staff testified at the State House before the Judiciary Committee in support of a bill to amend 
the Victim Compensation Law, filed jointly by the Office of the Attorney General and the Massachusetts 
Office for Victim Assistance (MOVA). The bill would expand certain benefits under G.L.c. 258C and 
assist crime victims to pay for the most frequently requested crime-related costs. The AGO continues to 
seek passage of this bill. In addition, staff participated in MOVA's Legislative Subcommittee. 

GRANT ACTIVITY 



The Division applied for and received an annual grant for Fiscal Year 2001 from the Department of 
Justice through the Victims of Crime Act (VOC A) in the amount of $892,000. These funds are used to 
supplement state payments of awards made directly to crime victims. A small portion of the grant is used 
for program administration. 



55 



COMMUNITY-BASED JUSTICE BUREAU VICTIM COMPENSATION ASSISTANCE 

OUTREACH &: EDUCATION INITIATIVES & TRAININGS 

Outreach and training about the program and its benefits remained a primary focus for Fiscal Year 
200 1 , and was extensive. Victim compensation training was provided to: 

• Lowell Rape Crisis Center, Battered Women 's Resources, New Bedford Women 's Center, Boston 
Area Rape Crisis Center, and North Shore Rape Crisis Center; 

• Southeast Asian Families Against Domestic Violence, Elizabeth Stone House, Wayside Youth and 
Family Support Network in Milford, Elizabeth Freeman Center, Women's Protective Services, 
and Employers Against Domestic Violence; 

• Massachusetts Office for Victim Assistance (MOVA) staff, MOVA's Victims of Crime Act (VOC A) 
recipients and S AFEPLAN advocates, and MOVA's homicide training for victim witness advocates 
in the Norfolk County District Attorney's Office; 

• Partners Health Care, the Boston Area Sexual Assault Coalition at Massachusetts General Hospital, 
the Trauma Center in Brookline, and victim service providers at the Massachusetts Medical Society; 

• Paul McLaughlin Youth Center staff; Haverhill Department of Social Services, Kid's Place in 
Pittsfield, Worcester Youth Guidance Center, and Brockton Family and Community Resources; 

Berkshire and Worcester District Attorney's Offices and the Milford Court Clerk's Office; and 

• AGO Elder Hotline staff. 

Division staff also developed and executed four individual training sessions on Advanced Victim 
Compensation Training for Advocates, for representatives from the Cape and Islands, Essex, Middlesex, 
Northwestern, Suffolk and Worcester District Attorneys' Offices, the US Attorney's Office, the Department 
of Correction, the Criminal History Systems Board, the Parole Board, the Department of Social Services 
and the AGO Criminal Bureau. 

In addition, Division members attended the National Organization of Victim Assistance (NOVA) 
Conference held in Florida and the National Organization of Crime Victim Compensation Boards Conference 
in San Francisco. 



% 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



Division staff also wrote articles on victim compensation for the Victims Rights Law Center's manual 
for pro bono attorneys and the Boston Area Rape Crisis Training Manual For Attorneys. Staff also 
presented testimony at a hearing held by the Governor's Commission on Domestic Violence on the economic 
stability of domestic violence victims. 

Division members developed a new victim compensation poster with artwork created by youth at the 
Paul McLaughlin Youth Center. The posters were distributed in April 2001 to coincide with Violence 
Prevention Month and Victim Rights Week. In addition, the posters were displayed in the lobby of One 
Ashburton Place from April 22 - 28, 2001, in recognition of Victim Rights Week. 



SIGNIFICANT CASE SUMMARIES & COURT ACTIVITY 

During Fiscal Year 2001 , seven cases proceeded to the judicial review stage. In six of the cases, the 
trial court upheld the Division's decision. In the seventh, the Division withdrew its opposition to the appeal 
and paid the claim. 

The Victim Compensation and Assistance Division included the following staffmembers: Cheryl Watson, 
Director; Sandra Clark; Diane Pepe Deangelis; Gael Decologero; Yvonne Lamoureaux; Frank Perry; 
Priscilla Russell; James Sinagra; and Jennifer Wilson. 



SAFE NEIGHBORHOOD INITIATIVE DIVISION 

In recognition of its focus on revitalizing urban centers and empowering communities, the Safe 
Neighborhood Initiative (SNI) moved from the Criminal Bureau to the Community-Based Justice Bureau 
in August 1999. Established initially in February 1993 by the Attorney General's Office, the Suffolk 
County District Attorney's Office, the Mayor's Office of the City of Boston and the Boston Police 
Department, the first SNI program, in Dorchester, celebrated its eighth anniversary this year. Over the 
course of the past eight years, the Office of the Attorney General has dedicated the services of Assistant 
Attorneys General and community liaisons to SNI communities across the Commonwealth. Successful 
SNI models have been established in Grove Hall, Brockton, Taunton and the Turner Falls Village of 
Montague, with prosecutors located in Dorchester, Grove Hall, Brockton, and Montague. 

The SNI has developed into an effective coalition, among community residents, state and local 
government officials, law enforcement personnel and human service providers, to solve a variety of 



57 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



community problems. Through SNI, communities and law enforcement work together to improve the 
quality of life for community residents throughout the Commonwealth. Based on the premise that no single 
group can solve all the problems faced by urban neighborhoods, the SNI model works to stem violence 
and improve the quality of life by developing multi -disciplinary approaches to community issues. 

Since those who live in a community are most familiar with its problems and ways to address them, 
residents are vital members of SNI partnerships. Each SNI has a different approach to problems ~ some 
are law enforcement driven while others are community driven, but all of the programs are infused with the 
three core principles: neighborhood revitalization, coordinated law enforcement and prevention, and 
intervention and treatment. 



HIGHLIGHTED EFFORTS & SIGNIFICANT ACTIVITIES 



SNI JOBS FOR YOUTH PROGRAM 



One of the major efforts aimed at prevention and intervention is the SNI JOBS FOR YOUTH Program. 
The program, which started in 1 996, has grown from employing 23 youth in five communities to employing 
more than 1 00 young people in nine communities throughout the state. The JOBS FOR YOUTH sites 
offer job opportunities throughout the year, and are not limited to summer employment. There are JOBS 
FOR YOUTH programs at the following sites: 

• Boston Eight youth from SNI target areas in Grove Hall, Fields Corner and Uphams Corner 
were employed through the City of Boston's Community Centers (BCC) program during this 
Fiscal Year. Partnering with local businesses and agencies, BCC placed young people in a variety 
of capacities, allowing them to learn skills including entrepreneurship, leadership and civic duty. 
The goal is to provide employment opportunities, hands-on training, safe havens and adult support. 
Placements included local community centers, private businesses and neighborhood social services 
agencies. 

• Holyoke Holyoke's JOBS FOR YOUTH program is administered by the Holyoke Youth Alliance, 
which serves youth from low-income neighborhoods, particularly in downtown Holyoke. This 
program reinforces literacy skills, education and responsible work behavior and placed ten youth 
ages 14-18 during the year. Youth assisted as readers and mentors, and read to young children at 
sites including youth centers, family shelters, YMC As and day care centers. 



S8 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



Worcester The JOBS FOR YOUTH program in Worcester, run by the YMCA of Greater 
Worcester, serves at-risk youth in the Worcester area. Sixty youth, ages 14-18, participated 
during the year and were employed as computer tech assistants, office assistants, camp counselors 
and peer leaders. The participants also completed a 36-hour employment training program and 
performed 100 hours of volunteer work. 

Brockton The Old Colony YMCA in Brockton just completed its fifth year of JOBS FOR 
YOUTH funding. The program serves teens in the Brockton area who are enrolled in school or 
another educational program. The program's goal is to provide job opportunities, educational 
trainings, and recreational activities. This year the program employed 1 3 teens ages 1 4- 1 7 in local 
after-school community centers and day care centers. 

Lynn Lynn's program is administered by the Community Minority Cultural Center and serves 
disadvantaged and at-risk youth. During this Fiscal Year, the program employed seven teens who 
worked in various positions, including after-school programs and community arts programs. 

Taunton Eleven youth ages 17-19 were placed through the Taunton Department of Human 
Services during this Fiscal Year. The youth were assigned to various city agencies, including the 
Taunton Public Schools, Taunton Public Library, and Head Start. The program's goal is to provide 
employment and educational opportunities to youth for skill-building and future employment 
capability. 

Springfield The Springfield SNI JOBS FOR YOUTH program is administered through the 
Springfield Southwest Community Health Center and serves youth from low-income families. 
Fifteen youth ages 13-18 participated this Fiscal Year. The program provides youth with 
opportunities to increase their employability, self-esteem, and knowledge and skills in the area of 
health promotion. The youth were employed as peer health educators. Youth participated in 
delivering health education information, including violence prevention, to other youth at local 
community centers, the Salvation Army and other social service agencies. 

New Bedford Nineteen at-risk youth in New Bedford received training through the University of 
Massachusetts/Dartmouth Division of Continuing Education. The goal of the program is to provide 
training and support for youth to become employed or to continue their education. Internship 
placements included local businesses, courthouses, colleges, social service agencies, and the City 
of New Bedford. 



59 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



• Chelsea This year marked the sixth year of funding for the Chelsea JOBS FOR YOUTH program. 
The City of Chelsea administered the program and provided positions for four Chelsea teens at 
several area businesses and city agencies, including Chelsea City Hall, Chelsea Public Library, and 
Chelsea Cable TV. In addition to employment, the program offered opportunities for recreational 
team building and for helping the youth develop skills to choose challenging careers. 

DORCHESTER SNI 



The Dorchester SNI continued to focus on issues that have consistently plagued the area -- truancy, 
youth violence, and a lack of job opportunities and training. The Boston Police Department targeted 
truancy while other subcontracted programs provided opportunities for young people to effectively use the 
time when they are not in school by offering recreation, educational and job training programs. Additionally, 
community workers were actively involved with the Cape Verdean and Vietnamese communities, working 
to assess and address their needs. Through the work of a Cape Verdean youth outreach worker, funded 
by SNI and contracted through the Bowdoin Street Health Center, the SNI has been able to address 
issues facing Cape Verdean youth. Issues of violence, family, education, health and job opportunities are 
regularly addressed in the Cape Verdean youth groups which meet weekly. The Dorchester SNI has also 
created a strong network of support for other emerging immigrant groups, children who witness violence, 
and the local business community. During the past Fiscal Year, the SNI has begun to establish a working 
relationship with VIET AID, a community-based organization serving the Vietnamese community in 
Dorchester. The Assistant Attorney General assigned to Dorchester is helping to educate VIET AID 
representatives on the criminal justice system in order to explain the court process and encourage participation 
by the Vietnamese community. 

The Dorchester SNI Advisory Council continued to meet regularly to identify the most pressing needs 
of the Dorchester SNI community. The Office of the Attorney General, through a grant from the Executive 
Office of Public Safety, completed its seventh year of funding for subcontracted programs in the Dorchester 
SNI, offering assistance to law enforcement efforts as well as enrichment, educational and recreational 
programming for children, youth and adults. Offered through direct service providers in the community, 
programming includes youth safe haven activities at the Dorchester Youth Collaborative, education and 
training programs for local small business owners, police training, and clinical assistance for children who 
witness violence. 

• Attorney General's SNI Community Reentry Project During this past Fiscal Year, the 
Dorchester SNI was designated as one of two funding recipients for the Attorney General's SNI 



60 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



Community Reentry Project. The project, developed by the SNI Division and awarded funding 
from the Executive Office of Public Safety, will provide case management services to young adults, 
ages 1 7-24, returning to the Bowdoin Street/Geneva Avenue area from commitment to the Suffolk 
County House of Correction. The case manager will establish contact with returning adults prior 
to their release and assist them in accessing community programs, services and employment 
opportunities. 

• Youth to Work Project During Fiscal Year 200 1 , the Dorchester SNI developed and implemented 
the Youth to Work Project. Funding for the project was provided through the OAG SNI legislative/ 
budget funds. The program was developed in collaboration with the Dorchester Community 
Health Initiative partner agencies and administered by the Bowdoin Street Health Center. Housed 
at the Paul McLaughlin Youth Center, the project focused on developing job readiness skills in a 
group of 16-22 year olds and arranged for six week internships. 

• African Dance and Art Collaborative The Dorchester SNI also agreed to fund a new program 
administered by the Bowdoin Street Health Center. The African Dance and Art Collaborative 
provided youth ages 9-14 with after-school activities at the St. Peter's School in Dorchester. 

• Dorchester SNI Youth Working Group Division staff facilitated meetings of the Dorchester 
SNI Youth Working Group. The group meets regularly to discuss the available resources for 
youth within the SNI target area and ways of improving collaboration among SNI youth agencies. 

GROVE HALL SNI 



During the state Fiscal Year 200 1 , the Grove Hall Safe Neighborhood Initiative received $225,000 for 
its fifth year of funding from the Department of Justice, Executive Office for Weed and Seed. The money 
funded several community-based programs which helped address the needs and concerns identified by the 
community. In addition, the Grove Hall SNI/Weed & Seed Coordinating Council Members began work 
on the Weed & Seed Re-Designation Application due in Fiscal Year 2002. 

• Weed and Seed Grant This year, as a part of the Weed and Seed grant, the Grove Hall SNI 
funded several programs through both Seed mini-grants and Special Emphasis Initiative funds. 
Seed mini-grants were awarded to the Roxbury Multi-Service Center's SENIORS Program, 
Quincy-Geneva Housing Corporation's Diversity and Understanding Camp for Kids and the 
Creative After-School and Summer Program, Women of Color AIDS Council, We're Educators 



61 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



- A Touch of Class, Grove Hall Residents' Association's Youth Development and Early Intervention 
Program, and the Youth Substance Abuse Task Force. Special Emphasis Initiative funds were 
awarded to the GIRLS on the Move! Program and Roxbury Multi-Service Center's Teens 
Networking Teens and Community Programs Against Sexual Assault. 

Attorney General's SNI Community Reentry Project During this past Fiscal Year, the Grove 
Hall SNI was designated as one of two funding recipients for the Attorney General's SNI Community 
Reentry Project. The project, developed by the SNI Division, and awarded funding from the 
Executive Office of Public Safety, will provide enhanced case management services for juveniles, 
ages 14-2 1 , returning to the Grove Hall neighborhood following commitment to the Department of 
Youth Services. The case manager will establish contact with juveniles prior to the end of their 
commitment and assist them in accessing community programs, services and employment 
opportunities. 

Grove Hall SNI Senior Information Fair This year, the Senior Empowerment Initiative held its 
second annual Senior Information Fair. This day-long event featured information and services for 
seniors in the Grove Hall Community. Over 150 seniors and their families attended the program. 

Legislative Breakfast The Grove Hall SNI held a legislative breakfast at the Roxbury Multi- 
Service Center. The goal of the breakfast was to showcase the achievements of the SNI and to 
urge local legislators to support the development and continuation of SNI collaboratives statewide. 



SIGNIFICANT CASE SUMMARIES 8c COURT ACTIVITY 

SNI Community Prosecution SNT's Community Prosecution Program is critical to its coordinated 
law enforcement component. SNI lawyers at the Superior and District Court levels continued to serve in 
non-traditional roles, acting as prosecutors and working with the community. SNI prosecutors attended 
community meetings, participated in special events, and responded to inquiries from law enforcement, 
residents, and social service agencies. As a result of their direct community involvement, the SNI lawyers 
were able to determine which issues were of most importance to the neighborhood and how resources 
from Attorney General Tom Reilly's office could best be used to address those concerns. In addition, the 
assigned Assistant Attorneys General developed joint initiatives with other law enforcement agencies, and 
utilized sentencing and probation options so as not only to punish offenders but also to rehabilitate them. 
SNI prosecutors also worked closely with federal law enforcement authorities for enhanced federal 
prosecutions. 



62 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



DORCHESTER 



The Assistant Attorney General assigned to Dorchester prosecuted major felonies in Superior Court, 
consisting primarily of repeat drug offenders, large-scale drug seizures, armed robberies, armed career 
criminals and firearm offenses. Some examples include: 

• Commonwealth v. Trenny Parker Following a jury trial, the defendant was convicted of 
assault and battery with a dangerous weapon and assault and acquitted of armed home invasion. 
The defendant was sentenced to two to three years committed at MCI Cedar Junction. The 
defendant also had a parole violation from California for shooting and burglary and upon 
completing his sentence here, will be extradited to California to complete that sentence. 

• Commonwealth v. William Ragland The defendant was charged as an armed career 
criminal for possession of a high-capacity firearm ammunition feeding device. The defendant 
was convicted and sentenced to two consecutive sentences totaling approximately 20-25 years. 

• Commonwealth v. Vincent Sahedo The defendant was seen in an area of reported shots 
fired. When the police approached, they pat-frisked him and seized a loaded 9mm handgun. 
The defendant pled guilty and was sentenced to one year in the House of Correction. 

Community Involvement In addition to prosecutorial responsibilities, the Assistant 
Attorney General assigned to Dorchester attended monthly SNI Advisory Council meetings, 
met regularly with the Detective staff from Area C- 1 1 , and assisted probation officers in 
presenting evidence at probation surrender hearings. 

GROVE HALL 



The Assistant Attorneys General assigned to Grove Hall as part of the SNI team prosecuted cases in 
Suffolk Superior Court and Roxbury District Court. The Superior Court caseload included drug trafficking, 
carjacking, armed robbery, kidnapping, and firearm offenses. The SNI Assistant Attorney General 
successfully prosecuted several Superior Court cases. Some examples include: 

• In two separate cases against defendant Corneal Miller, Miller pled guilty to armed robbery 
and received a state prison sentence of one year to one year and a day. Miller also pled guilty 
to distribution of class B, receiving a sentence of one year to one year and a day in state prison 



63 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



and pled guilty to distribution of class B in a school zone and was sentenced to two years to two 
years and a day from and after. 

• Commonwealth v. Thomas Brent The defendant, following a traffic stop, fled the scene 
striking an officer. Following a change of plea, the defendant was sentenced to two and one- 
half years in the House of Correction, with 1 8 months to serve and the balance suspended for 
three years. 

Community Involvement The SNI AAG regularly attended all Grove Hall SNI 
community and Coordinating Council meetings and maintained direct community contact. 

BROCKTON 



The Assistant Attorney General assigned to Brockton continued to focus on serious felonies, including 
major drug trafficking offenses, rape, armed assault with intent to murder, burglary and firearm violations. 
The AAG worked extensively with the Massachusetts State Police Crime Prevention and Control Unit 
(CPAC) assigned to the Plymouth County District Attorney's Office to investigate and prosecute major 
drug trafficking cases. Case highlights included: 

• Commonwealth v. Marc Marshall The defendant sold 1/8 ounce quantities of powdered 
cocaine to undercover police on five separate occasions within one thousand feet of a school 
zone. The defendant pled guilty and was sentenced to a mandatory three years in the House of 
Correction. 

• Commonwealth v. Eric Williams Following a jury trial, the defendant was found guilty of 
being a felon in possession of a firearm, assault by means of a dangerous weapon, assault and 
battery by means of a dangerous weapon (pistol whipping), and assault and battery. The 
defendant was sentenced to ten years to ten years and a day on the firearm charge and to 
concurrent time on the other charges. All of the sentences were run from and after sentences 
that the defendant received on a parole violation and probation surrender that occurred as a 
result of the new jury verdict. 

Community Involvement The AAG attended and reported on case activity at all SNI 
Advisory Council meetings. The AAG also regularly attended all Brockton Weed & Seed 
Coordinating Council meetings. 



(A 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



MONTAGUE 



Attorney General Tom Reilly recognizes that issues of crime and neighborhood revitalization are not 
confined to the largest urban centers. Cities and towns across the Commonwealth confront similar issues 
regarding community disintegration and each location raises concerns particular to that region. The Montague 
SNI illustrates how the Attorney General is addressing these issues in Western Massachusetts. The SNI 
Assistant Attorney General assigned to Montague handled criminal prosecutions from Turner Falls in the 
Greenfield District Court, including narcotics and domestic violence violations. The AAG also worked 
closely with the local police department to target repeat offenders as well as quality-of-life prosecutions. 

• Commonwealth v. Wilfredo Oyola In this case, the defendant pled guilty to breaking and 
entering (reduced from a home invasion), assault and battery, and assault and battery by means 
of a dangerous weapon. He was sentenced to one year in the House of Correction with six 
months to serve followed by a six-month house arrest with monitored alcohol and drug 
screening. 

The SNI AAG also attended a series of community "town" meetings called Reinventing Justice. These 
meetings were designed to discuss topics of concern to the community, mostly centering around youth 
violence. The attendees included juvenile court judges, private attorneys, and human service providers. In 
addition, the AAG assisted the Northwestern District Attorney's Office in securing police participation in 
the DA's Domestic Violence Intervention Program. The program trained officers responding to domestic 
violence reports to contact a domestic violence counselor for follow-up with the victim. 

TAUNTON 



Community Involvement The Taunton SNI continued to focus on law enforcement and 
crime prevention. The Taunton SNI partners include a broad base of representatives, among 
them, law enforcement, prosecutors, probation officers, health professionals and direct service 
providers. The City of Taunton continued to play a major role in coordinating the efforts of the 
Taunton SNI partners. Representatives from Attorney General Tom Reilly 's office regularly attended 
SNI Advisory Council Meetings in Taunton and assisted the Taunton SNI in programmatic 
resources, including the Attorney General's JOBS FOR YOUTH program, which hired, trained 
and employed Taunton youth. The Taunton SNI held an award luncheon for its OAG JOBS FOR 
YOUTH participants, recognizing the successful completion of their internships. 



65 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



The OAG also continued to work closely with members of the Taunton SNT on an abandoned property 
initiative. As part of the initiative, a single-family home was placed into receivership for rehabilitation of the 
property. 

COMMUNITY POLICING 



Another key element of SNFs coordinated law enforcement component is community policing. High- 
ranking police officials were actively involved in SNI Advisory Councils and met regularly with community 
groups and individual residents to address concerns. Community policing projects of SNI target areas 
have demonstrated a strong impact on crime statistics in target communities. In addition, an unprecedented 
level of cooperation and collaboration with the police is reported by residents, merchants and social 
service agencies. 

Joint investigations with federal agencies were also a part of the SNI's coordinated law enforcement 
component. The Boston Police Department, Area B2, utilized the combined resources of state and federal 
agencies including the state police, the Drug Enforcement Agency, and the Bureau of Alcohol, Tobacco 
and Firearms to target the most serious offenders or high level drug distribution participants in the Grove 
Hall neighborhood. 

NEIGHBORHOOD REVITALIZATION 



Abandoned Property Project A major component of Attorney General Tom Reilly 's urban 
focus is to promote neighborhood revitalization. The Abandoned Property project targets the 
revitalization of urban areas where the housing stock is often left abandoned or in a state of disrepair. 
The project seeks to use a receivership statute to undertake and oversee rehabilitation of residential 
properties with persistent, unremedied code violations which are frequently used for illicit activities, 
such as drug dealing or prostitution. The legislation was originally intended to permit tenants and 
other occupants of residential properties to seek the appointment of a receiver who would have 
the independent authority to authorize repairs, after notice and an opportunity to cure was provided 
to the landlord and creditors of record. The most significant features of the statute are twofold: 1 ) 
it provides a limited scope of receivership liability related solely to the work actually undertaken at 
the property; and 2) the costs and expenses incurred by the receiver become a priority lien, 
recoverable against both the landlord and the property prior to any pre-existing liabilities other 
than outstanding real estate taxes. This project has been implemented throughout the state, in 



66 



COMMUNITY-BASED JUSTICE BUREAU SAFE NEIGHBORHOOD INITIATIVE 



Dorchester, New Bedford, Roxbury (Grove Hall), Worcester, Orange, Chelsea, Montague, 
Taunton, Springfield, Brockton and Melrose. Individuals from throughout the Office of the Attorney 
General participated in these efforts in various cities and towns. Teams consisting of Assistant 
Attorneys General, civil investigators, paralegals and staff were assigned to specific communities in 
order to become familiar with local officials, neighborhood residents and the housing stock. 



CONCLUSION 



The Safe Neighborhood Initiative is an example of the importance of collaboration among government 
officials, law enforcement and community representatives. The SNI works to address the issues of crime, 
crime prevention and treatment, and neighborhood revitalization in communities across the state. These 
partnerships have helped improve the quality of life for all residents of the Commonwealth. 

The Safe Neighborhood Initiative included the following staff members: Marcia Jackson, Chief; Linda 
DelCastilho; Katherine Hatch; Glenn MacKinlay; Sandra McCroom; Lenell Silva; Ina Tall; and Neil Tassel. 



07 



CRIMINAL BUREAU 

Appeals Division 

High Tech and Computer Crime Division 

Public Integrity Division 

Victim /Witness Assistance Division 

Special Investigations and Narcotics Division 

Economic Crime Division 

Environmental Crimes Strike Force 

Financial Investigation Division 



CRIMINAL BUREAU 



Criminal Bureau 

The primary mission of the Criminal Bureau is to prosecute violations of state criminal laws resulting in 
or involving significant economic loss or injury; harm to the environment; misconduct by public employees 
or elected officials; crimes against public agencies; organized crime; drug trafficking; crimes involving 
computers and other forms of technology; and cross-jurisdictional criminal organizations. The Criminal 
Bureau also prosecutes criminal cases referred to it by District Attorneys' offices and cases which further 
priorities of the Attorney General, such as crimes against children, the elderly and other particularly vulnerable 
groups. 

The majority of cases prosecuted by the Criminal Bureau result from investigations conducted by 
police officers and investigators assigned to the Criminal Bureau. During Fiscal Year 200 1 , twenty-seven 
State Police Officers, four officers of the Environmental Police, and eight civilian criminal investigators 
were assigned to the Criminal Bureau. Additionally, in some instances, law enforcement officers from 
other local, state, and federal agencies participated in investigations conducted by the Criminal Bureau. 



Another mission of the Criminal Bureau is to promote effective law enforcement and criminal justice in 
the state. The Criminal Bureau accomplishes this mission by maintaining partnerships with the Massachusetts 
District Attorneys Association, the Massachusetts Chiefs of Police Association, the Executive Office of 
Public Safety, and other law enforcement agencies and associations; developing criminal justice policy; 
proposing legislation; and participating in training programs for prosecutors, police officers, judges and 
others involved in the criminal justice system. 

Assistant Attorneys General assigned to the Criminal Bureau represent the Commonwealth in criminal 
prosecutions throughout the state, handle proceedings in state and federal courts challenging criminal 
convictions, and represent prosecutors, judges and other state criminal justice officials who are sued in the 
performance of their duties. 

During Fiscal Year 2001 , the Criminal Bureau received more than 1 ,500 inquiries and complaints 
from citizens, and reviewed 1 3 8 rendition and extradition requests forwarded to it by the Executive Office 
of the Governor. 

The Criminal Bureau executive staff in Fiscal Year '0 1 were the following: Gerard T. Leone, Jr., Chief; 
Kurt N.Schwartz; Jennifer Austin; Nancy Bloomberg; Sandra Ciancarelli; Sabrina Davis; Pamela Hunt; 
Rhonda Matthews; James O'Brien; Joanne Quigley; and Nancy Tavilla. 



71 



CRIMINAL BUREAU APPEALS 

The Criminal Bureau is organized into the following nine divisions, each of which reflects an area of 
specialization and expertise: Appeals, High Tech and Computer Crime, Public Integrity, Victim/Witness 
Assistance, Special Investigations and Narcotics, Economic Crime, Environmental Crime Strike Force, 
Financial Investigations, and Criminal Investigations. 

Assistant Attorney General Mary A. Phillips served as the Criminal Bureau's Grand Jury Coordinator 
during Fiscal Year 2001, and Assistant Attorney General James O'Brien developed and coordinated 
criminal justice initiatives, reviewed and drafted legislation affecting the criminal justice system, and 
coordinated training programs for Bureau staff. 

APPEALS DIVISION 

The Appeals 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 
caseload includes appeals and post-convictions matters in criminal cases prosecuted at the trial level by the 
Attorney General's Criminal Bureau and from convictions of criminal contempt throughout the 
Commonwealth; all habeas corpus petitions filed in federal court that challenge Massachusetts convictions, 
parole surrenders, civil commitments and renditions, and appeals in the First Circuit Court of Appeals from 
the denial or granting of habeas corpus relief. The Division also engages in civil litigation defending judges, 
clerks, probation officers and other court personnel, District Attorneys, Assistant District Attorneys and 
other prosecutorial personnel 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, as well as other statutes, court rules, practices and procedures that concern all aspects of the 
criminal justice system; represent the interests of prosecutors when subpoenaed to testify or provide 
documents in federal civil cases, supervise agency staff attorneys handling litigation involving the Department 
of Correction, the Parole Board, and the Commission of Probation and handle appeals and federal court 
litigation concerning the Parole Board. 

In addition to their case work, Division attorneys participate in and present training programs both for 
the Criminal Bureau and office- wide, provide assistance to other Criminal Bureau attorneys on investigations, 
motions, trials, post-conviction proceedings, and single justice actions and consult with or assist other 
bureaus in matters where the criminal justice expertise or perspective is important. 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. 



72 



CRIMINAL BUREAU APPEALS 

The Appeals Division included the following staff members: William J. Meade, Chief; James J. Arguin; 
Annette C. Benedetto; Eva M. Badway; Tom Dee; Elizabeth Frumkin; Maureen Giacoppo; Cathryn A. 
Neaves; Catherine E. Sullivan; and Linda Wagner. 



CASE HIGHLIGHTS 

• Kenneth P. Phoenix v. Matesanz (First Circuit) Appeal after remand from the denial of 
a federal habeas corpus petition challenging petitioner's 1 99 1 Hampden County first degree 
murder conviction on the ground of ineffective assistance of counsel. On December 1 , 2000, 
the First Circuit affirmed the denial of habeas corpus relief. 

• Kevin Lynch, et al. v. Sheila Hubbard (First Circuit) Appeal from the dismissal of a § 

1 983 suit against the parole board claiming the parole statute was vague, and that plaintiffs' due 
process rights were violated where the victim's families were permitted to appear at the 
hearings, and their families were not. On December 8, 2000, the First Circuit affirmed the 
dismissal of the complaint. 

• Gary R. Donaghy v. Sheila Hubbard (First Circuit) Appeal from dismissal of a criminal 
defendant's § 1983 suit alleging that the parole board violated his rights to due process and 
equal protection where the "full board" did not participate at his parole hearing. On December 
8, 2000, the First Circuit affirmed the dismissal of the complaint. 

• Reese Williams v. James Matesanz (First Circuit) Federal habeas corpus petition 
challenging a 1 973 Middlesex first-degree murder conviction challenging jury instruction on 
reasonable doubt. On October 25, 2000, the First Circuit affirmed the district court's denial of 
the petition. 

• Bernardo Hurtado v. John Tucker (First Circuit) Appeal from a judgment granting a 
writ of habeas corpus which challenged an Essex County conviction for cocaine trafficking 
claiming insufficient evidence and ineffective assistance of counsel. On March 29, 2001 , the 
First Circuit reversed the decision of the district court and entered an order that denied the writ. 

• Commonwealth v. Arrighi & Borino (Superior Court) Motions to dismiss the 
indictments of two defendants charged with aiding in the concealment of $ 1 .6 million stolen from 
the Massachusetts Treasury as time-barred and insufficient as a matter of law. On March 19, 
200 1 , the Superior Court denied the motions. 



73 



CRIMINAL BUREAU 



• Commonwealth v. Bonnie DiToro (Appeals Court) Appeal from a conviction for 
cocaine trafficking prosecuted by the Attorney General's Office. On March 22, 2001 , the 
defendant's conviction was affirmed by the Appeals Court. 

• Ronald Johnson v. Paul Norton (First Circuit) Appeal from a judgment granting a 
federal habeas corpus petition challenging Middlesex County convictions relating to a drive-by 
shooting on the basis that the petitioner was incompetent to proceed to trial as a result of a head 
injury. On May 1 1 , 200 1 , the First Circuit issued affirmed the district court judgment to issue 
the writ. 

• Duncan v. Walker (United States Supreme Court) Massachusetts wrote an amicus brief 
(joined by 19 states) in support of the State of New York's appeal from the decision of the 
Second Circuit relative to the tolling effect of a previously filed federal habeas corpus petition. 
On June 18, 200 1 , the Supreme Court reversed the Second Circuit's decision. 



STATISTICAL SUMMARY 

The Appeals Division filed approximately 75 appellate briefs during the year in the United States 
Supreme Court, Court of Appeals for the First Circuit, Supreme Judicial Court and Massachusetts Appeals 
Court. The Division filed 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 responsibility as 
the chief law enforcement officer of the Commonwealth. The following chart summarizes the cases handled 
by the Appeals Division during Fiscal Year 200 1 . 



CASE TYPE CASES OPENED CASES DISPOSED TOTAL 

CASES HANDLED 



Federal Habeas 


139 


78 


324 


Federal Civil 


112 


14 


42 


State Civil 


29 


21 


80 


State Habeas 


26 


14 


29 


Criminal 


33 


16 


60 



CRIMINAL BUREAU APPEALS 

CASE TYPE CASES OPENED CASES DISPOSED TOTAL 
CASES HANDLED 

211 §3 and Other 14 11 24 

Single Justice Cases 

TOTALS 263 154 559 

NON-CASE HIGHLIGHTS 

During Fiscal year 2001 , members of the Division were involved in community activities and both 
attended and taught training classes inside and outside the Office of the Attorney General, including: 

• The Lawyer's Committee for Civil Rights Board of Directors. 

• The Massachusetts Bar Association, Judicial Administration Task Force, Project Advisory Group. 

• Supreme Court Fellowship at National Association of Attorneys General . 

• Massachusetts District Attorneys Association Conference. 

• Quarterly Commonwealth Appellate Attorneys Action Project. 

• Lecturer and Clinical Coordinator at Harvard Law School. 

• Ad Hoc Panel on the improvement of Supreme Judicial Court Single Justice Practice. 

• Articles Editor, Massachusetts Law Review. 

• Co-Chair of AGO's Diversity Committee. 

• Rendition point person for Criminal Bureau. 



75 



CRIMINAL BUREAU HIGH TECH COMPUTER CRIME 

HIGH TECH & COMPUTER CRIME DIVISION 

The mission of the High Tech and Computer Crime Division (HTCC) is to provide high tech law 
enforcement expertise to the Commonwealth. In doing so, we serve three constituencies: 

1 . The individual citizens of the Commonwealth, particularly the children, who are increasingly 
communicating, buying and selling, and just passing time on the Internet; 

2 . The businesses and universities of the Commonwealth who drive our knowledge-based economy 
and who are dependent on computers and the Internet; and 

3 . Other law enforcement agencies (as well as other divisions within the Office of the Attorney General) 
which rely on our expertise to support them in the full range of crimes that they investigate and 
prosecute, from homicide to narcotics trafficking. 

We serve these three constituencies in three interrelated ways: 

1 . Investigation and prosecution of cases in which computers or the Internet play a crucial role; 

2. 

3 . Education, outreach and policy development. 



Investigative, legal and computer forensics support to other law enforcement agencies; and 



The HTCC handles a wide variety of cases in which computer technology or the Internet play a crucial 
role. The two areas of focus are preserving the integrity of the Commonwealth's knowledge based economy 
and protecting the well being of our children. The first category of cases includes intrusions to computer 
systems, related extortion attempts, theft of trade secrets and other intellectual property, such as trademarks 
and domain names, and the most egregious attempts to undermine the nascent Internet economy by 
defrauding consumers. The second category includes targeting child sexual predators on the Internet, 
dissemination and possession of child pornography and Internet threats to public institutions, such as 
schools. 

HTCC included the following staff members: John Grossman, Chief; Jennifer Austin; Trooper Steve 
Fennessy; Investigator Eric Lundberg; Trooper David McSweeney; Trooper Matthew Murphy; Sergeant 
Dermot Quinn; and Julie Ross. 



76 



CRIMINAL BUREAU HIGH TECH COMPUTER CRIME 

CASE HIGHLIGHTS 

• Commonwealth v. Christian Hunold (Middlesex Superior Court) Hunold, a Missouri 
resident, used the Internet to disguise himself as a student at Townsend's Hawthorne Brook 
Middle School. He thereafter sent the students of that school child pornography and created a 
Web site that contained apparently credible threats to blow up the school and a "hit list" naming 
specific students and teachers. The hit list threatened to send those named "home with more 
holes than they came to school with." As a result of a joint effort between Massachusetts and 
Missouri law enforcement authorities, Hunold pled guilty and served jail sentences in both 
jurisdictions. In Massachusetts, Hunold pled guilty to dissemination of matter harmful to minors, 
threats to commit a crime, assault, disturbing a school and disorderly conduct and was 
sentenced to serve one year consecutive to his four-month Missouri jail term in the Middlesex 
County House of Corrections with another year's sentence suspended for five years. 

• Commonwealth v. Christopher Dehaven (Middlesex Superior Court) Christopher 
DeHaven solicited sex from three Belmont teenagers whom he met on the Internet and sent 
them various sexually graphic images. After his activity was discovered, an undercover 
Massachusetts State Trooper assumed the on-line identity of the girls and arranged to meet 
DeHaven. DeHaven was arrested when he arrived in South Station on a train from Philadelphia 
on his way - he thought - to meet his victims at a local hotel. DeHaven pled guilty to 
disseminating harmful matter to minors and was sentenced to two and one half years in the 
House of Corrections with six months to serve and was extradited to Pennsylvania to face child 
pornography charges that came to light as a result of HTCC's investigation. He subsequently 
pled guilty in Pennsylvania and received a state prison sentence there. 

• Commonwealth v. Sean Emmett & Robert Kmmett (East Boston District Court) 
These defendants, a father and son, were arrested after allegedly selling an undercover trooper 
a sophisticated computer server stolen from a Massachusetts high tech business. The server 
contained valuable intellectual property belonging to the victim business. Both the server bought 
by the undercover officer and another were recovered, and a forensic analysis revealed that the 
intellectual property had not been compromised. The defendants currently face charges of 
receiving stolen property. 

• Comonwealth v. A Juvenile (Cambridge Juvenile Court) In March 2000, an unknown 
hacker penetrated an Air Force Computer at Wright-Patterson Air Force Base in Illinois. The 
hacker gained access to the computer by first compromising a United States Department of 



77 



CRIMINAL BUREAU HIGH TECH COMPUTER CRIME 

Transportation computer in Cambridge, Massachusetts. An investigation by federal authorities 
showed that the perpetrator was a 1 3-year-old Connecticut boy. Because of the defendant's 
youth, HTCC was asked to handle the case and sought charges in juvenile court for four counts 
of unauthorized access to computer systems, and one count each of operating an illegal wiretap 
and malicious destruction of property. The defendant admitted to all charges and was 
sentenced to two years of pretrial probation and to pay restitution of $5,000 to the Air Force. 



STATISTICAL SUMMARY 



The following chart summarizes the case referrals that HTCC screened for possible investigation and 
prosecution during Fiscal Year 200 1 and the number of those referrals that matured into formal investigations. 



CASE NUMBER OF NUMBER OF CASES 

DESCRIPTION CASES SCREENED INVESTIGATED 



Theft of Trade Secrets 15 

and Other Intellectual Property 



Computer Intrusions 


20 


Consumer Fraud 


257 


Child Exploitation 


26 


Threats/Cyberstalking 


29 


Other 


8 



Total 355 54 

Notably, HTCC received an extraordinarily high number of consumer fraud complaints; this in part 
reflects the severity of the problem and in part the success of the Internet Fraud Complaint Center ("IFCC"), 
a joint project of the National White Collar Crime Center (of which the Attorney General's Office is a 
member) and the FBI to consolidate all such complaints in one database. IFCC refers to I ITCC every 
complaint that either concerns a Massachusetts target or is received from a Massachusetts victim. HTCC 



CRIMINAL BUREAU HIGH TECH COMPUTER CRIME 

then screens the referrals and targets the most compelling cases, most of which involve targets in the 
Commonwealth who have defrauded a substantial number of people. The remaining IFCC cases are 
referred for review by the Public Protection Bureau's Consumer Protection Division. Another important 
trend is the growth over the course of the year in the number of referrals involving complex technical issues, 
such as computer intrusions; this, we believe, is the direct result of the growing reputation of HTCC within 
the business community and law enforcement. 

During Fiscal Year 200 1 , HTCC charged 1 individuals with various crimes, including unauthorized 
access (computer hacking), threats to commit a crime, unlawfully intercepting wire communications and 
dissemination of child pornography. Seven individuals or corporations pled guilty or otherwise admitted 
to sufficient facts in Superior, District and Juvenile courts across the Commonwealth, including one 1 3- 
year-old hacker who pled guilty and agreed to serve two years of pre-trial probation. 1 Additionally, 
HTCC prosecutors tried two narcotics cases and obtained guilty pleas in one other narcotics case. 



NON-CASE HIGHLIGHTS 

In addition to the cases that we investigated and prosecuted within HTCC, the Division assisted other 
Divisions within the Attorney General's Office and District Attorney's Offices in over 45 separate matters. 
In some cases, this assistance consisted of legal advice and reviewing search warrants; in others, it was 
performing computer forensics. Notably, the expertise of the the HTCC has been sought throughout the 
Commonwealth in several of the most high profile cases of the last year. For instance, HTCC analyzed all 
of the computers seized in the successful prosecution by the Norfolk County District Attorney's Office of 
Dr. Dirk Greineder for the murder of his wife. HTCC played a similar role for the Middlesex County 
District Attorney's office in the case stemming from multiple homicides allegedly committed at Wakefield's 
Edgewater Technologies by Michael McDermott. HTCC also worked with the Essex County District 
Attorney's Office in preparing the case against Christopher Reardon for allegedly sexually assaulting over 
15 children. 

Finally, HTCC devoted a substantial amount of energy and resources to training and outreach. These 
efforts allow us to leverage our relatively limited resources to (a) teach people and institutions to avoid 
becoming victims of high tech crimes and (b) where we cannot prevent the crimes from happening, assure 
that law enforcement has the capacity to respond. 



1 Some of the cases charged this year remain pending; just as some of the cases resolved this year 
were charged previously. 



79 



CRIMINAL BUREAU PUBLIC INTEGRITY 

Among the highlights in this area over the last year were: 

• A live Webcast to over 100 Massachusetts middle schools that was designed to be a tool to teach 
safe Internet usage. 

• Participation in a number of law enforcement training conferences, including the Massachusetts 
District Attorneys' Association annual meeting. 

• A three-day seminar sponsored by the Massachusetts Internet Crimes Against Children Task 
Force. 

• The Annual meeting of the New England Chiefs of Police. 

• A presentation at the American Society for Industrial Security's Cybercrime conference in 
Washington D.C. 

The National Association of Attorneys General Second Annual Internet Summit at Harvard Law 
School. 



PUBLIC INTEGRITY DIVISION 

The primary mission of the Public Integrity Division is to investigate and prosecute crimes committed 
by and against public employees that compromise the public's confidence in the government or harm 
public agencies. In Fiscal Year 2001, prosecutions included crimes committed against state and local 
public agencies and government-funded organizations as well as crimes committed by government 
employees, agents, and contractors. 

Members of the Public Integrity Division investigate cases with the assistance of Massachusetts State 
Police troopers and forensic financial investigators assigned to the Criminal Bureau. In addition, Division 
attorneys often work with local police departments, other State Police officers, federal law enforcement 
officials, and investigators assigned to other government agencies. 

The Public Integrity Division maintains close working relationships with other state and federal agencies 
involved in either investigating crimes by and against public employees and agencies, or enforcing laws 
concerning the conduct of public employees and agencies. These agencies include the State Ethics 
Commission, the Department of Revenue, the Office of the State Auditor, the Office of the Inspector 
General, the United States Attorney's Office, the Federal Bureau of Investigation, the United States 



CRIMINAL BUREAU PUBLIC INTEGRITY 

Department of Transportation, the United States Postal Inspection Service, local District Attorneys' Offices, 
various retirement boards, local town counsels and City Solicitor's Offices. 

The Public Integrity Division included the following staff members: Pamela Wechsler, Chief; Eugenia 
Carris; Sandra Ciancarelli; James O'Connell; Francis Russo; Kimberly West; and Nancy Rojas. 



CASE HIGHLIGHTS 

• Commonwealth v. Nathaniel St. Surin, George Barros, Walid Mobarak and Louis 
DesRoche (Suffolk Superior Court) Louis DesRoche, George Barros, Walid Mobarak and 
Nathaniel St. Surin, all of whom were members of the Boston Police Department's Hackney 
Unit, were prosecuted for bribery and filing false government reports. DesRoche was a Boston 
Police Sergeant who accepted bribes in the form of cash and gift certificates in exchange for the 
issuance of taxi licenses to unqualified individuals. Barros, Mobarak and St. Surin were 
middlemen who collected and delivered bribes to Hackney Unit employees in exchange for the 
licenses. DesRoche and Barros admitted to accepting illegal gratuities and were sentenced to a 
one year continuance without a finding and court costs. Mobarak pled guilty to bribery and was 
sentenced to two years probation. St. Surin pled guilty to 5 counts of bribery and was 
sentenced to 30 days home confinement and 3 years probation. This case ~ which stemmed 
from wide-spread corruption within the Boston Police Department's Hackney Unit ~ was 
prosecuted in conjunction with Boston police detectives, Federal Bureau Of Investigation agents 
and United States Attorney's Office prosecutors. 

• Commonwealth v. Trina Woods, Michael Wilcox, Doreen Hoey and Charles Belim 

(Suffolk Superior Court) Trina Woods, Michael Wilcox, Doreen Hoey and Charles Belim were 
part of an organized check kiting scheme that spanned three counties and stole approximately 
$ 1 00,000. The defendants preyed on elderly women in grocery stores. One defendant would 
distract a shopper while the other lifted her wallet from her pocketbook. They then used 
victims' blank checks to empty out their bank accounts. All four defendants pled guilty to 
multiple counts of larceny, receiving stolen property, uttering and forgery. Woods and Hoey 
were sentenced to 2 Vi years to 2 Vz years and one day in state prison and 3 years probation 
from and after. Wilcox and Belim were sentenced to 3 years to 3 years in one day in State 
Prison with 3 years probation from and after. 



81 



CRIMINAL BUREAU PUBLIC INTEGRITY 

• Commonwealth v. Herbert Bacchus & Lakesha Richardson (Suffolk Superior Court) 
Herbert Bacchus was a courier for the Massachusetts Department of Public Health and 
Lakesha Richardson was his girlfriend. They stole over $22,000 of state money that was 
intended for low-income health care recipients. Both pled guilty to larceny, uttering and forgery. 
Bacchus was sentenced to 2 years in the House of Corrections, 1 year to serve and the balance 
suspended for 2 years probation. Richardson was sentenced to 2 years in the House of 
Corrections, 60 days to serve and the balance suspended for 2 years probation. Both 
defendants were ordered to pay $22,000 joint and severable. 

• Commonwealth v. Mike Vitkauskas & Ronald Gagnon (Salem Superior Court) Mike 
Vitkauskas and Ronald Gagnon were employed by the state to administer funds intended to be 
used by low-income homeowners who wanted to de-lead their homes. They perpetrated a 
kickback scheme in which they funneled over $ 1 million dollars in state-funded loans designated 
for de-leading and home improvement to five de-leading contractors who in turn paid over 
$90,000 to the defendants. Vitkauskas pled guilty to commercial bribery and corporate books 
false entries and was sentenced to 5 years probation and 6 months in a residential treatment 
program. Gagnon pled guilty to conspiracy to commit commercial bribery and was sentenced 
to 2 years probation, 1 25 hours of community service and a $5,000 fine. 

• Commonwealth v. Eileen Stocker (Suffolk Superior Court) Eileen Stocker entered local 
elementary school classrooms during the daytime and stole wallets from teachers' desks. She 
then withdrew money from ATMs, cashed stolen checks, and charged items on the stolen credit 
cards. She pled guilty to forgery, uttering, larceny and identity theft, and was sentenced to 5 
years probation and $5,000 restitution. 

• Commonwealth v. Percy Wayne Martin (Suffolk Superior Court) Percy Wayne Martin 
stole the identities of 1 5 people, all named Martin, and used their credit to steal over $75,000 in 
goods and services. He was charged with multiple counts of larceny, identity fraud, forgery, 
uttering and bank fraud. Martin thereafter fled to South Carolina where he was arrested and 
returned to Massachusetts for prosecution. 

• Commonwealth v. David Netti (Berkshire Superior Court) David Netti worked for 
several years filling prescriptions at local pharmacies without having graduated from a pharmacy 
college or having obtained the state mandated pharmacist's license. Netti pled guilty to charges 
of dispensing controlled substances without a license, forgery and uttering. He was sentenced 
to one year in the House of Corrections with 90 days to serve and the balance suspended for 
two years. 



82 



CRIMINAL BUREAU PUBLIC INTEGRITY 

• Commonwealth v. Jeanna Monterio (Barnstable District Court) Jeanna Monterio was 
an employee of the Barnstable Superior Court Probation Department who stole over $8,000 of 
probation funds. She pled guilty to Larceny and was sentenced to 2 years probation, with the 
requirement that she have no direct dealings with any monies or finances, and $8,01 8 restitution. 

• Commonwealth v. Fatjon Jorgo (Boston Municipal Court) Fatjon Jorgo attempted to 
bribe an undercover Massachusetts State Police trooper who posed as a Division of 
Registration employee in order to obtain a cosmetology license. Jorgo admitted to sufficient 
facts to attempting to commit bribery. The matter was continued without a finding for one year 
along and Jorgo was required to pay $ 1 ,000 court costs. 

• Commonwealth v. John Mikalauskis (South Boston District Court) John Mikalauskis 
was a clerk in the South Boston District Court's probation department. He admitted to sufficient 
facts to stealing over $3,000 from the probation department. The matter was continued without 
a finding for one year and he was ordered to pay $3,035 in restitution, and complete 100 hours 
of community service. 



STATISTICAL SUMMARY 

During Fiscal Year 200 1 , the Public Integrity Division reviewed 1 35 new allegations of criminal conduct 
and disposed of 1 56 cases (some of which were received in prior Fiscal Years). In addition, 27 defendants 
were indicted and 28 cases resulted in guilty pleas. Of the 28 pleas, 16 were prosecuted in Superior 
Courts and 1 2 were prosecuted in District Courts. There was one Superior Court trial. Crimes investigated 
and prosecuted by the Public Integrity Division included: Perjury, Tax Evasion, Larceny, Bribery, Accepting 
Unlawful Gratuities, Identity Fraud, Conspiracy, Procurement Fraud, and Embezzlement. 



NON-CASE HIGHLIGHTS 

During Fiscal Year 200 1 , members of the Division were involved in community activities and both 
attended and taught training classes inside and outside the Office of the Attorney General, including: 

• The Boston Bar Association Educational Panel: "Doing Business With the Government." 

MCLE Superior Court forum. 



83 



CRIMINAL BUREAU VICTIM/WITNESS ASSISTANCE 

MCLE trial advocacy seminar. 
MCLE trial advocacy training. 

The National District Attorneys Association conference on White Collar Crime Prosecutions. 
National Advocacy Center seminar on Public Corruption Prosecutions. 
DNA and the Criminal Justice System conference at Harvard's Kennedy School of Government. 
Harvard Law School mock trial advisor. 

The Belmont Middle School Gun Prevention Mock Trial competition. 
Lecture to the Plymouth County District Attorney's Office. 
The Office of the Attorney General, Child Protection Project. 

VICTIM/WITNESS ASSISTANCE DIVISION 

The Victim/Witness Assistance Division 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 collateral 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). A third Victim/Witness Advocate position was added to the Criminal Bureau in 
Fiscal Year 200 1 due to the high volume of cases requiring victim/witness assistance. Advocates in the 
Criminal Bureau provide victim advocacy and witness management services to all of the Bureau's divisions: 
1 ) Appellate; 2) Criminal Investigations; 3) Economic Crime; 4) Environmental Crimes Strike Force; 5) 
Financial Investigations; 6) High Tech and Computer Crime; 7) Public Integrity; and 8) Special Investigations 
and Narcotics. Advocates are occasionally assigned to prosecutions in other bureaus of the office when 
the need for victim/witness services is identified by the Assistant Attorney General. The nature of these 
cases varies depending on the referral source. Categories include Medicaid fraud, patient abuse, home 
repair fraud and insurance fraud. Advocates also provide victim/witness coverage on conflict cases referred 
to the Office of the Attorney General by the eleven District Attorneys' Offices across the Commonwealth. 
These referrals typically involve cases of violent crime. The Victim/Witness Assistance Division, in an 



84 



CRIMINAL BUREAU VICTIM/ WITNESS ASSISTANCE 

effort to build community partnerships and to address victim issues identified as mandated priorities of 
Attorney General Tom Reilly, participates in a number of initiatives relating to children, safety in our schools, 
elders, fraud, health care, high tech and computer crime, domestic violence, diversity and curative legislation. 

The Division included the following staff members: Kathleen Morrissey, Director; Helena Dunn; and 
Kelly Payne. 



CASE HIGHLIGHTS 

Five cases of particular note illustrate work in priority areas set by Attorney General Tom Reilly: ( 1 ) 
high tech and computer crime; (2) elders and fraud; (3) community partnerships; (4) consumers and 
identity fraud; and (5) the environment and public safety. 

• Commonwealth v. Christopher Dehaven (High Tech & Computer Crime Division) 
Christopher Dehaven, a Pennsylvania man, met two Belmont girls online and then traveled to 
Massachusetts with the alleged intent of having sex with them. The defendant pled guilty to one 
count of Dissemination of Material Harmful to a Minor in Middlesex Superior Court and was 
sentenced to two and one-half years in the House of Corrections, six months and two days to 
be served, the balance to be suspended for two years with eight probationary conditions, 
including no access to internet and sex offender evaluation and treatment to be supervised by 
the Probation Department. 

The Dehaven case raised significant victim/witness issues. The victims' parents had heightened 
anxiety because the defendant was transported from his home state of Pennsylvania to 
Massachusetts in furtherance of our prosecution. In addition, because the victims had only 
"met" Dehaven online, they did not feel comfortable attending the guilty plea and sentencing 
(typically a point of closure for victims). None of the victims chose to do victim impact 
statements; one parent read a statement in court while another parent watched in silence. The 
Division's work on this case included crisis intervention relating to press coverage and the 
defendant's whereabouts; participation in trial preparation at the victims' homes; ongoing 
notification of the victims and their families of the case status; and attendance at the guilty plea 
with the victims' parents. 

• Commonwealth v. Douglas Schwartz (Economic Crime Division). The defendant pled 
guilty to six criminal charges arising out of his fraudulent activities with funds in the account of 
the late Harriet Maxant. The charges were: larceny over $250; forgery; obtaining signatures by 



8S 



CRIMINAL BUREAU VICTIM/WITNESS ASSISTANCE 

false pretense; securities fraud; transacting business beyond the scope of his securities license; 
and uttering a forged instrument. The defendant was sentenced to a two-year term of 
supervised probation, restitution in the amount of $53,568.32 and 100 hours of community 
service. 

The Schwartz case involved an elderly victim who required special services from the Division. 
The Division began working with the victim in 1 998, together with other members of the 
prosecution team, to aid in the assessment of the elder's legal competency. Thereafter, the 
Division provided ongoing case notification to the victim's three adult children; participated in 
trial preparation sessions with witnesses; provided information and assistance with respect to 
victim impact statements; and provided support and assistance to the family at the guilty plea. 
One of the victim's adult daughters was an individual with mental retardation. The Division 
obtained transportation and accommodations so that she was able to come to court on the day 
of the plea with her family. The Division's attention to this case was recognized by the victim's 
family at the conclusion of the case. 

• Commonwealth v. Matthew McDonough (Conflict Case Referred by Suffolk District 
Attorney's Office) Matthew McDonagh pleaded guilty to one count of assault and battery and 
was sentenced to two years in the House of Corrections, eighteen months to be served and the 
balance (6 months) to be suspended for three years with probationary conditions including a 
stay-away order from the victim, his family and the establishment at which the crime occurred. 

The Division worked with the prosecution team to provide coverage and notification to the 
victim. In furtherance of our efforts, the Division conducted many telephone conversations with 
the victim and the victim's family to determine the victim's needs as a result of extensive injuries 
caused by the crime. In addition, the Division met with the victim and the victim's brother to 
assist the victim in the completion of the Victim Compensation Application and the CORI 
certification process. 

• Commonwealth v. Kerrin Alfonso (Economic Crime Division) Kerrin Alfonso pleaded 
guilty to ten counts of forgery, three counts of larceny over $250, and three counts of identity 
fraud. The defendant was sentenced to state prison to be served at M.C.I. Framingham for a 
term of not less than three years and not to exceed five years, five years' probation to 
commence after the state prison sentence has been served, and restitution of up to $ 1 ,000 per 
victim. 

This case was significant in that the defendant has a national reputation as the "Queen of Identity 
Fraud." The Division provided both victim advocacy and witness management to the six victims 

86 



CRIMINAL BUREAU VICTIM/WITNESS ASSISTANCE 

identified by this Office. One victim, in particular, was assessed to be in need of victim advocacy 
as she was the mother of a homicide victim in an unrelated case. The Division worked with the 
prosecution team to reach out to these victims, participated in victim interviews, kept the victims 
apprised of case status and also assisted these victims in completing the Victim Impact 
Statements and the CORI certification applications. In addition, the Division maintained close 
ties for notification purposes to the other government agencies involved in this case: the Boston 
Police Department, the Woburn Police Department and the Secret Service Boston Office. 

• Commonwealth v. Eiias Dow (Environmental Crimes Strike Force) Elias Dow admitted 
to sufficient facts necessary to warrant a finding of guilty in Dedham District Court on two 
charges arising from his failure to label and illegal disposal of infectious medical waste which had 
been generated at his medical lab. 

The defendant was placed on supervised probation for a period of six years, during which time 
the operation and maintenance of his lab would be closely tracked, and was ordered to pay 
$6,000 to the Northeast Environmental Enforcement Project, an organization which provides 
education and training to environmental inspectors, investigators, and prosecutors throughout the 
northeastern United States and southeastern Canada. 

The Dow case is significant from a victim/witness perspective. It is one of a growing number of 
environmental cases requiring victim/witness services. The primary victim in this case — the 
janitor ~ was unwittingly exposed to free- flowing blood and became quite symptomatic after 
the incident. As a result of the exposure, the victim underwent HIV testing for a period of two 
years and required individual psychotherapy. The victim also began to develop cardiac 
symptoms and angina. Indeed, during a trial preparation session, the victim had an angina 
attack while he was recalling his HTV testing. In order to assist the primary victim through these 
incidents, the Division provided victim advocacy-crisis intervention and ongoing case 
notification. In addition, the Division provided witness management services to a dozen 
Commonwealth witnesses, including two collateral agencies, the Department of Public Health 
and the Brookline Board of Health. 



STATISTICAL SUMMARY 



Fiscal Year 200 1 ushered in a banner year for the Victim/Witness Assistance Division which responded 
to significant challenges to provide services to a high volume of victims and witnesses. Victim advocacy 



87 



CRIMINAL BUREAU 



VICTIM/WITNESS ASSISTANCE 



and witness management services were provided by the victim/witness advocates in 84 cases across the 
Commonwealth. The referral sources for these cases is as follows: 



REFERRAL SOURCE 



NUMBER OF CASES 



Economic Crime Division 

High Tech & Computer Crime Division 

Public Integrity Division 

Environmental Crimes Strike Force 

Special Investigations & Narcotics Division 

Appeals Division 

Public Protection Bureau, Chief Prosecutor's Office 

Business Labor & Protection Bureau, Medicaid Fraud Control Unit 

Public Protection Bureau,Civil Rights Division 

Conflict Cases 



TOTAL 



84 



NON-CASE HIGHLIGHTS 

During Fiscal Year 2001 , members of the Division were involved in community activities and both 
attended and taught training classes inside and outside the Office of the Attorney General, including: 

• Ongoing consultation to prosecutors, investigators and state troopers by screening and responding 
to duty calls and correspondence on 5 1 occasions from the public when victim/witness issues 
were identified. 



Attending 1 7 educational conferences across the Commonwealth relating to victim/witness issues. 



CRIMINAL BUREAU SPECIAL INVESTIGATIONS NARCOTICS DIVI- 

SION 

• Conducting trainings related to the implementation of the Victim Rights Law and the role of Victim/ 
Witness Assistance Division to: the Massachusetts Office for Victim Assistance; new statewide 
Advocates and Victim of Crime Act ("VOCA") program grantees; the Criminal Bureau staff; and 
the Criminal Bureau summer interns. 

• Participating in a presentation entitled, "Internet Crime and Safety" at the Paul McLaughlin Youth 
Center and providing training to the children at the Center on teen-dating violence and conflict 
resolution. 

• Participating in statewide working groups on the state of the state of victim rights and services; 
protecting victim/witness advocate notes; financial crime victims; and building bridges of support 
for moms. 

• The Citizens for Schools mock trial at the Moakley Federal courthouse. 

• Co-authoring: Victim- Witness Specialist, United States Attorney's Office, "Working with Victims 
of Fraud," Victim Impact, Volume 2, No. 2, Spring, 2001 . 

• Completing the Elder Strike Force Training Program and qualifying as an Elder Law Advocate. 

• Attending the NAAG Eastern Region Telemarketing Fraud Enforcement Training. 

• Attending bi-monthly meetings of the Victim and Witness Assistance Board which oversees the 
implementation of victim rights across the Commonwealth. 

• Attending the Annual Victim Rights Conference in April, 200 1 chaired by Attorney General Tom 
Reilly and the Massachusetts Office for Victim Assistance (MOVA). 

• Member of the Massachusetts District Attorneys Association's Domestic Violence Subgroup and 
the Boston Area Sexual Assault Coalition, a hospital-based forensic network. 

SPECIAL INVESTIGATIONS & NARCOTICS DIVISION 

The Special Investigations and Narcotics (SI&N) Division coordinates and prosecutes a variety of 
complex, multi-jurisdictional criminal cases. The Division also proactively investigates traditional criminal 
enterprises - including so-called organized crime families and large-scale drug trafficking organizations - 
as well as non-traditional criminal organizations such as street gangs and armed robbery rings. A priority 



89 



CRIMINAL BUREAU SPECIAL INVESTIGATIONS NARCOTICS DIVI- 

SION 
of the Division is to identify and prosecute individuals and groups involved in the illegal sale or possession 
of firearms. SI&N prosecutors are also responsible for providing assistance in the drafting of legislation 
pertaining to electronic surveillance, racketeering and corruption, narcotics, firearms, and child protection. 
Division members are encouraged to participate in the conception and implementation of community education 
and outreach programs. 

The Sl&N Division, through its Asset Forfeiture Unit, initiates and 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. 

Among the general categories of crimes the SI&N Division investigated and/or prosecuted during 
Fiscal Year 2001 were the following: armed robbery, narcotics trafficking and related offenses, gaming, 
extortion and loansharking, firearms trafficking, possession of large capacity weapons and related firearms 
offenses, armed career criminal violations, larceny of motor vehicles, larceny of high-tech hardware and 
software, identification fraud, check counterfeiting, counterfeit currency possession, unlawful production 
of fraudulent Massachusetts drivers licenses, habitual criminal offenders, and a variety of conflict cases 
from District Attorneys' Offices across the state, including motor vehicular homicide. 

Attorneys, State Police Officers and investigators assigned to the SI&N Division also continued to 
work with and provide technical, legal, and other forms of investigative support and assistance to federal, 
state, and local law enforcement agencies. These agencies included the Drug Enforcement Administration, 
the Bureau of Alcohol, Tobacco and Firearms, the Federal Bureau of Investigation, the United States 
Customs Service, the Department of Corrections, District Attorney's Offices, and various state and local 
police departments and task forces throughout the Commonwealth and, in some circumstances, across the 
country. These joint undertakings included investigations of large-scale drug distribution and money laundering 
organizations, counterfeit check and identification producers, organized larceny rings, and firearm traffickers. 

A significant tool that the Division utilized to penetrate and dismantle complex illegal enterprises during 
Fiscal Year 200 1 was electronic surveillance. Over the past year, troopers assigned to this Division have 
on numerous occasions equipped themselves with electronic body wires, pursuant to so-called Blood 
warrants, to intercept and record criminal conversations with unsuspecting targets. Additionally, from July 
2000 through June 200 1 , the SI&N Division executed 35 court-authorized wiretap warrants. These 
warrants authorized law enforcement officers to intercept, monitor, and record criminal communications 
occurring over several cellular and residential telephones. On one occasion, prosecutors and troopers 
assigned to the Division received court permission to install an electronic "bug" inside a key location used 
by members of an organized crime family. These electronic surveillance measures, coupled with traditional 
investigative techniques, have proven invaluable in securing the convictions of individuals with ties to a 



90 



CRIMINAL BUREAU SPECIAL INVESTIGATIONS NARCOTICS DIVI- 

SION 
variety of sophisticated criminal enterprises. Because of their considerable expertise in this area, attorneys 
in the Division are frequently asked to advise police officers and fellow prosecutors in the law of search 
and seizure and electronic surveillance. 

During Fiscal Year 200 1 , attorneys in the SI&N Division were also required to act as point persons for 
the office on a variety of topics that require specialized knowledge in certain areas of law. For instance, 
Division attorneys provided advice and assistance to attorneys and police officers across the state in 
rendition matters. In addition, the Division fielded public record inquiries directed to the Division on 
matters concerning the Criminal Offender Records Information (CORI) Act. . 

The SI&N Division included the following staff members: William F. Bloomer, Chief; Aloke Chakravarty; 
Carole Conley; Joanna Kennefick; Alexandra Moffatt; Eileen O'Brien; Peter Paulousky; Mary P. Phillips; 
Matthew Shea (Western Massachusetts Division); and Karen Wells. Approximately ten Massachusetts 
State Troopers are assigned to the SI&N Division within the Attorney General's Office. During Fiscal 
Year 2001 , that unit was under the direction of Captain Mark Delaney Lieutenants Stephen and Francis 
Matthews, with Sergeants Richard Prior and Thomas Coffey, formed the central core of the remaining 
command structure for SI&N troopers. 



CASE HIGHLIGHTS 

• Commonwealth v. Scott Sanders (Middlesex Superior Court); Commonwealth v. 
James Hayes (Middlesex Superior Court); Commonwealth v. Donald Smoot (Middlesex 
Superior Court); Commonwealth v. Anthony Cardillo (Middlesex Superior Court); 
Commonwealth v. Cynthia Hughes (Middlesex Superior Court), Commonwealth v. Byron 
Vorgeas (Middlesex Superior Court); Commonwealth v. Patrick J. McGonagle 
(Middlesex Superior Court); Commonwealth v. Christian J. Petrillo (Middlesex Superior 
Court); Commonwealth v. Daniel Mosher (Middlesex Superior Court); Commonwealth v. 
Michelle Collette (Norfolk Superior Court); Commonwealth v. Philip P. Shaheen 
(Norfolk Superior Court); Commonwealth v. James Masciulli (Suffolk Superior Court); 
Commonwealth v. Joseph Rosatto (Suffolk Superior Court); Commonwealth v. Christian 
Kelley (Suffolk Superior Court); Commonwealth v. David Kelley (Suffolk Superior 
Court); Commonwealth v. Gerardo Fabrizio (Lynn District Court); Commonwealth v. 
Nicola Fabrizio (Lynn District Court); Commonwealth v. Alfonso Velasquez-Londono 
(warrant) During Fiscal Year 2001 , troopers and prosecutors assigned to the SI&N Division 
conducted a wiretap investigation into three separate but overlapping drug distribution rings 



91 



CRIMINAL BUREAU SPECIAL INVESTIGATIONS NARCOTICS DIVI- 

SION 
operating in the Greater Boston area. From July 1 0, 2000 through August 15, 2000, 
investigators monitored eight different telephones and two paging devices and intercepted 
hundreds of communications relating to the importation and resale of large quantities of 
OxyContin /oxycodone pills, kilogram quantities of cocaine, hundreds of pounds of marijuana, 
and designer "ecstasy" pills. On August 1 6, 2000, in a coordinated effort involving more than 
1 50 officers from state, federal, and local police departments, 28 search warrants were 
executed at residences in four different counties. Police seized over 5 kilograms of cocaine, 
more than 3,500 OxyContin /oxycodone and MDMA (ecstasy) pills, 30 pounds of marijuana, 
handguns, approximately $400,000 in drug money, and one dozen luxury motor vehicles. 
Sixteen people were arrested and charged with offenses ranging from trafficking in an opium 
derivative (oxycodone) and cocaine to distribution of MDMA and conspiracy. Five of those 
individuals have already pleaded guilty to felony criminal charges. 

• Commonwealth v. Frederick Simone (Middlesex Superior Court); Commonwealth v. 
Vincent Gioacchini (Suffolk Superior Court) Over the course of fifteen weeks during Fiscal 
Year 2001 , prosecutors from this Division assisted the State Police Special Services Unit and 
the Federal Bureau of Investigation in conducting a court-authorized wiretap of two telephones 
belonging to an alleged longtime soldier of La Cosa Nostra (LCN) as well as implanting and 
monitoring an electronic recording device in a key location utilized by LCN members. The 
intelligence garnered from this electronic surveillance, coupled with traditional investigative 
techniques, led to the issuance of 1 3 search warrants for locations that crossed county lines. On 
December 7, 2000, state police and federal agents executed these warrants and seized three 
handguns, hollow point ammunition, holsters, gaming records, and cash. Frederick Simone and 
Vincent Gioacchini were arrested and charged with being Armed Career Criminals. Simone 
presently faces a mandatory ten years in state prison, while Gioacchini 's possible incarceration is 
a mandatory fifteen years under the Armed Career Criminal Act. 

• Commonwealth v. Luis Cotto (Middlesex Superior Court); Commonwealth v. Jason 
King (Middlesex Superior Court); Commonwealth v. Antonio Centeno (Middlesex 
Superior Court); Commonwealth v. George Milliard (Middlesex Superior Court); 
Commonwealth v. David Texeira (Middlesex Superior Court); Commonwealth v. Marcial 
Cubi (Essex Superior Court); Commonwealth v. Maria Cubi (Essex Superior Court); 
Commonwealth v. Diego Rojas (Essex Superior Court); Commonwealth v. Kurt Weldon 
(Lowell District Court); Commonwealth v. Alex Ortiz (Lowell District Court); 
Commonwealth v. Felix Baez (Lowell District Court) During a six month investigation, 
prosecutors and troopers from this Division assisted the Drug Enforcement Administration and 



92 



CRIMINAL BUREAU SPECIAL INVESTIGATIONS NARCOTICS DIVI- 

SION 
Lowell Police Department in conducting a wiretap investigation of an organization that was 
responsible for importing sizeable quantities of cocaine and heroin into the Lawrence and Lowell 
areas from New York City. Six cellular telephones and two residential telephones were 
monitored pursuant to court orders during this investigation. On October 2, 2000, 1 8 search 
warrants were executed at locations in Middlesex and Essex Counties. Approximately one 
kilogram of cocaine, heroin, ecstasy pills, steroids, and tens of thousands of dollars were seized 
by police and federal agents. The primary target of the investigation and six others were 
arrested. Four additional individuals were indicted following a grand jury investigation. To date, 
eight of the eleven defendants have pleaded guilty to a variety of offenses ranging from 
conspiracy to distribution of controlled substances. The remaining three defendants are the 
subjects of arrest warrants issued by the court. This investigation exemplified the successful 
cooperative efforts of three separate law enforcement entities working together with one 
prosecuting entity to attain one goal. 

• Commonwealth v. Timothy Ross (Essex Superior Court); Commonwealth v. Tu An 
Ngyuen (Suffolk Superior Court) These separate cases are set forth together because both 
involve undercover troopers who placed their lives at risk by purchasing operable firearms from 
individuals on the street. In the first instance, an undercover trooper bought a "Tec 9" mm semi- 
automatic pistol equipped with a 32 round magazine and loaded with 24 live rounds of 
ammunition. After this hand-to-hand sale, Ross was arrested. After further investigation by 
Division staff, he later pleaded guilty to charges of selling a large capacity weapon and feeding 
device as well as one count of being an armed career criminal. Ross was ultimately sentenced 
to six to eight years in state prison. In the second case, Ngyuen transferred three handguns - 
one Raven .25 caliber semi automatic and two 9 mm pistols - to an undercover trooper. 
Conversations between Ngyuen and the undercover officer were recorded by means of a body 
wire pursuant to so-called Bloo d warrants. During these conversations, Ngyuen among other 
things bragged about his ability to gain access to several different types of large capacity 
weapons. He was later charged with firearms trafficking and faces trial in 2002. 

• Commonwealth v. Frank Gottschalk (Woburn District Court); Commonwealth v. 
Diane Gottschalk (Woburn District Court) These cases illustrate the "typical" work done on 
a daily basis by investigators and prosecutors assigned to the SI&N Division. In the Fall of 
2000, state police received information that the Gottschalks were selling heroin a short distance 
from an elementary school in Winchester. Troopers quickly initiated an investigation that 
ultimately led to the issuance of a search warrant for the Gottschalks' residence and the seizure 
of heroin and distribution paraphernalia from that location. The Gottschalks were arrested, and 



93 



CRIMINAL BUREAU SPECIAL INVESTIGATIONS NARCOTICS DIVI- 

SION 
based upon the strength of the case against them both defendants pleaded guilty shortly 
thereafter to drug charges. Diane Gottschalk in particular admitted to selling heroin within a 
school zone and received a mandatory two years in jail for her actions. After the Gottschalks' 
arrests, school officials publicly praised the work of investigators and prosecutors in the 
Attorney General's Office. 

• Commonwealth v. Dale McBride (Somerville District Court); Commonwealth v. Mary 
Franklin Rose (Somerville and Lowell District Courts); Commonwealth v. Jody Smith 

(Somerville District Court) The Somerville Police Department sought the assistance of 
prosecutors in the SI&N Division in prosecuting the defendants, who were tied to gang 
members in Boston's Mattapan section, for cashing counterfeit checks in amounts of 
approximately $490 (checks under $500 do not require the approval of a bank manager to be 
cashed). This criminal activity is presently an escalating problem that is costing banks and their 
customers millions of dollars per year. Following issuance of criminal complaints, the defendants 
were convicted of larceny and uttering forged instruments and sentenced to the house of 
correction. As a condition of probation upon their release, the defendants were ordered to pay 
thousands of dollars in restitution and to perform community service. 

• Commonwealth v. Maryann Tedesco (Woburn District Court) On November 8, 1999, 
Tedesco was operating her vehicle on Route 93 in Wilmington at approximately 9:00 pm, 
speeding, and weaving over the marked lanes, despite normal road conditions, when she 
eventually lost control of her vehicle, which went barreling into the median strip guard rail and 
into the fast lane of traffic, causing a five-car pile up. Pinkesh Bhatt's vehicle slammed into 
Tedesco's, and another vehicle smashed into Bhatt's vehicle as it was spinning along with 
Tedesco's. Bhatt died a day and a half later. Investigation revealed that Tedesco negligently 
operated her car by weaving inexplicably and by speeding, leading to her loss of control of her 
vehicle. In September 2000, Maryann Tedesco admitted to sufficient facts to a charge of motor 
vehicular homicide. Tedesco was placed on probation for four years, lost her license to operate 
a motor vehicle, and was ordered to perform 1 00 hours of community service and to issue a 
written apology to the victim's surviving family members. 



STATISTICAL SUMMARY 

From July 1, 2000 through June 30, 2001, State Police assigned to the SI&N Division made 
approximately 65 felony arrests. Prosecutors in the Division in turn successfully disposed of 90 pending 



94 



CRIMINAL BUREAU SPECIAL INVESTIGATIONS NARCOTICS DIVI- 

SION 
cases in the Massachusetts Superior and District Courts (some of which were initiated in prior Fiscal 
Years) while initiating approximately 1 10 new cases in those same courts. Of the number of drug cases 
investigated by the Division in Fiscal Year 200 1 , about one-third of these involved two controlled substances 
rapidly growing in popularity among young adults: oxycodone, a highly addictive painkiller (the active 
ingredient in pharmaceutical OxyContin), and Methylenedioxy-N-Methylamphetamine (MDMA), otherwise 
known as the designer drug "ecstasy." The remaining percentage of narcotics cases included the more 
common street drugs such as heroin, cocaine, and marijuana. The vast majority of these cases involved 
trafficking quantities of these drugs. 

From July 1 , 2000 through June 30, 200 1 , State Police assigned to the SI&N Division seized 1 6 guns 
ranging from an Intratec 9 mm semi-automatic firearm to several handguns with obliterated serial numbers. 
Based upon these seizures as well as undercover purchases of weapons, prosecutors in the SI&N Division 
charged 9 individuals with a variety of firearms offenses, including armed career criminal violations, possession 
of large capacity weapons, and receiving firearms with obliterated serial numbers. 

During Fiscal Year 2001, the Asset Forfeiture Unit initiated approximately 28 new civil forfeiture 
actions and concluded 1 8 actions involving money, cars, a boat, motorcycles and jewelry. In addition, the 
Asset Forfeiture Unit successfully concluded several pending civil forfeiture actions from prior Fiscal Years 
involving a number of automobiles used to facilitate the distribution of narcotics including one 1 996 Green 
Camry, one Mercury Cougar, one 1 998 Dodge Ram and one 1 993 Jaguar XJS. Also, the Asset Forfeiture 
Unit concluded a civil forfeiture action regarding one 1998 Sea Ray Boat which was sold at auction. 
Lastly, the Asset Forfeiture Unit was meritorious in a summary judgment motion filed against a 1997 
Toyota 4-Runner which had been used to transport a large quantity of cocaine. 

At any given time, the Division generally has in excess of 1 05 cases pending in various courts throughout 
the Commonwealth, over 1 5 ongoing investigations, and a handful of post-trial motions that require written 
responses and court appearances. 



NON-CASE HIGHLIGHTS 

Assistant Attorneys General assigned to SI&N Division continue to provide service and assistance 
both in and out of the Office that exceed the scope of traditional prosecutorial responsibilities. During 
Fiscal Year 200 1 , members of the Division were involved in community activities and both attended and 
taught training classes inside and outside the Office of the Attorney General, including: 



95 



CRIMINAL BUREAU ECONOMIC CRIME 

• National Association of Attorneys General, Telemarketing Fraud Trial Practice Academy. 

• Boston Bar Association, round table discussion on "Youth Crime/ Gang Crime in Boston." 

• Attorney General's Racial Profiling Working Group. 

• Attorney General's Subcommittee on Juvenile Justice. 

• Drug Enforcement Administration Training, The Law of One-Party Consent Interceptions in 
Massachusetts. 

• Attorney General 's Ballot Initiative Petition Certification Group. 

• Massachusetts Attorney General's Office In-House Training, Search and Seizure 101. 

• Suffolk University Panel on "Firearms: First Monday in October." 

• Attorney General 's Subcommittees on Gang Violence and Child Abuse. 

• Citizen's School Mock Trial Program. 

ECONOMIC CRIME DIVISION 

The Economic Crime 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 cases handled by the Division may vary in size - from 
the $50,000 theft from a single elderly victim to the multi-million dollar theft from a large corporation. The 
goal of the Division is not only to indict and convict guilty felons but also to assist the public and private 
sector in creating systemic change in order to prevent fraud. 

The Economic Crime Division consists of a specialized team of criminal prosecutors and one legal 
secretary. The Division has expertise in the following areas of criminal law: ( 1 ) fiduciary embezzlement, 
(2) complex financial organizational frauds, (3) securities violations, and (4) tax offenses. Each of these 
broad areas of financial crimes victimize both vulnerable individuals and large corporations. 

The Economic Crime Division receives referrals from both state and federal agencies, as well as 
judges, attorneys, private parties, and police departments throughout the Commonwealth. 



96 



CRIMINAL BUREAU ECONOMIC CRIME 

The Division continues to work closely with such offices and agencies as the Board of Bar Overseers, 
the Client Security Board, 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 District Attorneys' Offices 
across the state. 

The members of the Economic Crime Division during part or all of the Fiscal Year consisted of the 
following: Carol Starkey, Chief; Lori Balboni; Mark Mulligan; Molly Parks; Steven Prunier; Mary Ruppert; 
and Olivia Blanchette, the Division secretary. 



CASE HIGHLIGHTS 

• Commonwealth v. Jack Trischitta, Robert E. Foley, Scot Butcher, Thomas 
Ciliberto, Martin Robins, Richard C. Arrighi and Ronald A. Borini (Suffolk Superior 
Court) Last Fiscal Year, a Special Suffolk County Grand Jury returned 30 indictments against 
seven people alleging eight different criminal schemes involving thefts from the Treasurer's Office 
between May 1992 and February 1998. The total amount of money stolen as a result of these 
alleged schemes was approximately $9.4 million dollars - the largest theft of state funds in the 
history of the Commonwealth. During this Fiscal Year, two of the inside cooperating witnesses, 
the former Deputy Treasurer, Robert Foley, and the former Supervisor of the Unpaid Check 
Fund, John Trischitta, pleaded guilty in Suffolk Superior Court, agreeing to stay their sentencing 
until after they testified at the trial of the remaining defendants, which was scheduled for early in 
Fiscal Year 2002. 

• Commonwealth v. Shin Wong and China Wok (Suffolk Superior Court) The defendant 
was the owner of a restaurant, China Wok, and substantially understated its sales to avoid 
paying taxes, and created a false second set of register tapes to thwart the Department of 
Revenue's review. The charges alleged that there was a $450,000 understatement of sales 
resulting in a tax due of approximately $22,500. Indictments included multiple counts of filing 
false meals tax returns, aiding and assisting in the preparation of false meals tax returns and 
failure to file meals tax returns. The defendant and the company pleaded guilty. Shiu Wong 
was sentenced to a $ 1 0,000 fine with conditions of probation to include cooperating with 
Department of revenue in a civil assessment, and the timely filing of all tax returns for which the 
defendant was responsible during the probation period. China Wok was sentenced to $ 1 0,000 
fine. 



97 



CRIMINAL BUREAU ECONOMIC CRIME 

• Commonwealth v. James Toth (Suffolk Superior Court) Toth was charged with 
fraudulently claiming he was a New Hampshire resident beginning in 1 990, while living in 
Massachusetts. The tax loss to Massachusetts for the calendar years 1993 through 1996 was 
$6,705. Charges included multiple counts of failure to file income tax returns. After pleading 
guilty, the defendant was sentenced to a $4,000 fine and a 1 year jail sentence, suspended for 2 
years, with a fine totaling $ 1 2,000. Conditions of probation included (1)150 hours of 
community service; (2) Filing all future tax returns as they become due; and (3) cooperating with 
the Department of Revenue in the payment of past taxes. 

• Commonwealth v. Vincent Stolo (Middlesex Superior Court) Vincent Stolo, the 
President of the market research firm Fieldwork Inc., stole $1 ,408,660.93 through seven 
different schemes perpetrated through his company. The charges included larceny over $250, 
false entries in corporate books, fraudulent use of corporate credit, and filing a false report to 
police officers. After pleading guilty, the defendant was sentenced to 2 l A years in the House of 
Correction, in addition to a sentence of 5 years probation, to be commenced from and after his 
incarceration, with the following conditions of probation: ( 1 ) attend gamblers anonymous on 
monthly basis; (2) pay full restitution of $1 ,037,627.63, the monthly amount to be determined 
by probation after service of incarceration. 

• Commonwealth v. Robert E. Lockwood, 33 Dunster Street, Inc., Employment 
Leasing, Inc./Liquidators Corporation and National Communications, Inc. (Suffolk 
Superior Court) Robert Lockwood was a Beverly Farms businessman who failed to pay over 
$6,000,000 dollars in taxable meals and wages that were paid to employees, amounting to over 
$300,000 in tax liability owed to the Commonwealth. The foregoing crimes were perpetrated 
through his corporations 33 Dunster Street, Inc., Employment Leasing, Inc./Liquidators 
Corporation and National Communications, Inc. The defendant was indicted on charges of 
willful attempt to evade and defeat withholding taxes, willful failure to account for and pay over 
withholding taxes, willful failure to account for and pay over meals taxes, willful filing of false 
excise tax returns, aiding and assisting in the willful filing of false withholding tax returns, willful 
failure to file state income tax returns and failure to file excise tax returns. The defendant was 
also charged by the United States Attorney Office on related charges. As part of a global 
resolution, on the state charges, the defendant was sentenced to 1 year House of Correction, 
suspended for 2 years, and ordered to pay a total of $95,000 in fines, $47,500 paid to the 
Commonwealth forthwith at the sentencing. The willful attempt to evade and defeat withholding 
taxes charge and the charges against 33 Dunster Street were nolle pressed upon the defendant's 
state court sentencing. 



98 



CRIMINAL BUREAU ECONOMIC CRIME 

• Commonwealth v. Charles Christy (Worcester Superior Court) The defendant was a 
disbarred attorney who embezzled over $ 1 00,000 which he was supposed to hold in escrow 
for a client. The target's counsel acknowledged to Bar Counsel that unspecified additional 
clients were owed money, and the defendant's former partner told Bar Counsel that the 
defendant admitted having stolen clients' funds for years. The defendant was indicted on 
multiple counts of larceny over $250. The defendant was sentenced to two years in the House 
of Correction, suspended for 5 years, with conditions of probation that included 90 days home 
confinement, and $15,000 restitution. 

• Commonwealth v. Douglas Schwartz (Middlesex Superior Court) Douglas Schwartz, a 
registered representative of a Royal alliance Broker/Dealer firm, was charged with stealing joint 
owner interests in corporate stock from an elderly victim by forging securities documents, 
exceeding the scope of his trading license, and fraudulently influencing an elderly woman to sell 
approximately $ 1 50,000 in securities. The proceeds of the stock sale were used to fund a 
fraudulent 20-year mortgage loan to the target's wife. The charges included larceny over $250, 
forgery, obtaining signatures by false pretense, securities fraud, engagement in activity outside of 
his license, and uttering forged documents. The defendant pleaded guilty and was sentenced to 
two years probation with $53,586.32 restitution, plus 100 hours community service. 

• Commonwealth v. Frank S. Ardagna (Suffolk Superior Court) The defendant, the Chief 
Financial Officer of New England Shelter for Homeless Veterans, embezzled over $60,000 
from the shelter's accounts for his personal use and forged documents to conceal his 
embezzlement. The charges included larceny over $250 and forgery. The defendant was 
sentenced to 4 years in the House of Correction, from and after 5 years probation. Conditions 
of probation included $50,000 restitution and employment restrictions. 

• Commonwealth v. Sean C. Murphy, Byron Worth & Sylvia Murphy (Middlesex, 
Essex and Suffolk Superior Courts) Sean Murphy and Byron Worth, inmates at the 
correctional facility of MCI-Shirley, together with Murphy's mother, Sylvia Murphy, were 
indicted on charges of attempted larceny and conspiracy for the submission of false claims of 
sexual abuse to the Archdiocese of Boston. The defendants were charged with multiple counts 
of attempted larceny over $250 and conspiracy to commit larceny. However, due to defendant, 
Sylvia Murphy's's death during the pendency of the charges, the Commonwealth nolle prosed 
the indictments of larceny over $250 and conspiracy to commit larceny against the defendant 
Sylvia Murphy. The co-defendants' charges remain outstanding. 



99 



CRIMINAL BUREAU ECONOMIC CRIME 

• Commonwealth v. Isaac Belbel (Suffolk Superior Court) The defendant filed false 
Massachusetts Income Tax Returns for the calendar years 1 997, 1 998 and 1 999, in order to 
obtain false refunds from Department of Revenue. Belbel obtained false refunds in the amounts 
of $7,98 1 and $8,263 for the calendar years 1 997 and 1 998. For the calendar year 1 999, 
Belbel filed a tax return requesting approximately $ 1 6,000 from the Department of Revenue. 
The defendant pled guilty to all counts and was sentenced to 1 year in the House of 
Corrections, suspended for 5 years, 300 hours community service, and ordered to pay a 

$ 10,000 fine and surfine. 

• Commonwealth v. Pamela Lozon (Suffolk Superior Court) The defendant was charged 
with embezzling approximately $ 1 00,000 of funds from the Boston Neurological Foundation as 
the former Financial Manager. During her employment, the defendant wrote checks to herself, 
allegedly for reimbursement of expenses, and used the Foundation's funds to pay for personal 
purchases and expenses, including the payment of her family's American Express card, and a 
boat loan for her son. The defendant was charged with larceny over $250 and making false 
entries in corporate books. The defendant was found guilty and sentenced to full restitution in 
the amount of $84,874.90 paid on the date of sentencing, followed by 3 Years probation with 
monthly in-person reporting and bi-weekly telephone reporting and 200 hours of community 



• Commonwealth v. Leo Burns and Thomas J. Ribaga (Barnstable, Middlesex, 
Plymouth Superior Courts) Co-defendants Bums and Ribaga ran a financial services business 
called Pilgrim Financial Group, Inc. They solicited funds from mostly elderly clients purportedly 
to invest them, and instead used the money to defray business and personal expenses. The 
defendants were indicted on charges including larceny over $250, unlawful offer/sale of 
securities, and fraudulent offer or sale of securities. 

• Commonwealth v. Zachary Hildreth (Suffolk Superior Court) The defendant targeted 
the South End community and stole money from multiple victims through the issuance of false 
promissory notes in return for loans to his alleged computer company for over $70,000. The 
defendant was indicted on charges including larceny over $250 and securities fraud . 

• Commonwealth v. Ziad F. Shahin (Essex Superior Court) The defendant fraudulently 
transferred an annuity investment from the Great American Life Insurance Company on behalf 
of the victim to a fish company for his own personal benefit. The defendant was indicted on 
charges including larceny over $250 and securities fraud. 



100 



CRIMINAL BUREAU ECONOMIC CRIME 

• Commonwealth v. Stephen C. Holt (Suffolk Superior Court) The defendant was the 
controller for Sara Campbell, Ltd., a clothing designer firm, and the ex-brother-in-law of the 
principal, Sara Campbell. He embezzled in excess of $2 million from 1 995 through 1 998, in 
part through spending the money on day trading. The defendant was indicted on charges 
including larceny over $250, false entry in corporate books and omitting true entries in 
corporate books. 

• Commonwealth v. William Previti (Suffolk Superior Court) The defendant was the 
owner of retail fitness equipment business that collected 5% sales tax from retail customers on 
approximately $2 million in sales over a four-year period. No returns were filed, and no taxes 
were paid. The defendant was indicted on charges, including multiple counts of willful failure to 
account for and pay sales tax. The defendant was charged with failure to account for and pay 
sales tax. Upon a written plea agreement, the defendant was sentenced to 2 years in the House 
of Correction, suspended for 5 years, with 5 years probation. The conditions of probation 
included: (1)9 Months home confinement monitored by electronic bracelet, costs to be paid by 
defendant; (2) a $40,000 fine, $20,000 of which to be paid at sentencing, and $20,000 of 
which to be paid over the probationary period; and (3) the defendant is to file all past due tax 
returns. 

• Commonwealth v. Yovette Mumford (Suffolk Superior Court) The defendant owned 
American Electrical Corporation ("AEC"), which was an electrical inspection contractor for the 
Central Artery & Tunnel project. AEC failed to file withholding tax returns, and in addition, 
submitted false documentation for an audit of payments made to the company. The defendant 
was indicted on charges, including procurement fraud, failure to account for and pay over 
withholding taxes, and failure to file withholding tax returns. 

• Commonwealth v. James A. Kendrick (Chelsea District Court) The defendant was a 
home improvement contractor who committed welfare fraud and stole money from an elderly 
victim. The defendant was indicted on charges, including larceny over $250 and welfare fraud. 

• Commonwealth v. Shirley Hoak (Brighton, Cambridge and Middlesex Superior Courts) 
The defendant was an attorney who converted funds entrusted to her by more than ten clients. 
The Defendant was indicted on charges of larceny over $250 and larceny over $250 from a 
person sixty years or older. The charges stem from over $280,000 entrusted by an elderly man 
to be placed in a trust and invested, and $95,000 entrusted by a Milton man to pay back taxes, 
penalties and interest. 



101 



CRIMINAL BUREAU 



ECONOMIC CRIME 



STATISTICAL SUMMARY 



The following chart summarizes the categories of cases handled during Fiscal Year 2001 . 



CRIME 


COURT 


INDICTMENTS 


False Entries In Corporate Book 


Suffolk Superior 


1 


False Entries In Corporate Records 


Suffolk Superior 


1 


Withholding Tax Violations 


Suffolk Superior 


■ 


Failure to File Withholding Tax Returns 


Suffolk Superior 


1 


Fraudulent Offer or Sale of a Security 


Middlesex Superior 


2 


Larceny Over $250 


Barnstable Superior 


2 




Brighton District 


1 




Cambridge Superior 


1 




Chelsea District 


1 




Essex Superior 


1 




Middlesex Superior 


3 




Plymouth Superior 


3 




Suffolk Superior 


3 


False Income Tax Returns 


Suffolk Superior 


2 


Omitting True Entry in Corporate Book 


Suffolk Superior 


1 


Securities Fraud 


Suffolk Superior 


2 



102 



CRIMINAL BUREAU 




ECONOMIC CRIME 


CRIME 


COURT 


INDICTMENTS 


Unlawful Offer/Sale of Security 


Barnstable Superior 


2 


Welfare Fraud 


Chelsea District 


1 


Sales Tax Violations 


Suffolk Superior 


1 



The following chart summarizes case dispositions during Fiscal Year 200 1 . 
CASE DISPOSITIONS COURT TOTAL CASES 



Attempt Larceny Over $250 


Suffolk Superior 


1 


Conflict of Interest 


Suffolk Superior 


1 


Conspiracy to Commit Bribery 


Suffolk Superior 


1 


Conspiracy to Commit Larceny 


Suffolk Superior 


1 


Conspiracy to Commit Larceny 


Suffolk Superior 


1 


from the Treasury 






Embezzlement by a Treasury 


Suffolk Superior 


1 


Engagement in Activities 


Middlesex Superior 


1 


Outside License 






Failure to Account for and 


Suffolk Superior 


1 


Pay Over Sales Tax 






Forgery 


Middlesex Superior 


' 


Identity Fraud 


Middlesex Superior 


' 


Larceny Over $250 


Essex Superior 


' 




Middlesex Superior 


3 




Suffolk Superior 


3 



103 



CRIMINAL BUREAU 

CASE DISPOSITIONS 



ECONOMIC CRIME 



COURT 



TOTAL CASES 



Making and Subscribing False 
Income Tax Returns 

Making False Entries in 
Corporate Books 

Obtaining Credit by False Pretense 



Obtaining Property Over $250 
by False Pretense 

Securities Fraud 

Uttering Fraudulent Checks 

Uttering Forged Documents 

Willful Filing of False Income Tax Return 

Willful Failure to Timely File 
Income Tax Returns 



Suffolk Superior 

Suffolk Superior 

Essex Superior 

Middlesex Superior 

Essex Superior 

Middlesex Superior 
Essex Superior 

Middlesex Superior 
Suffolk Superior 
Suffolk Superior 



NON-CASE HIGHLIGHTS 

During Fiscal Year 200 1 , members of the Division were involved in community activities. Members 
served on various legal committees and both attended and taught training classes inside and outside the 
Office of the Attorney General, including: 

• The Massachusetts Bar Association's Criminal Justice Section Council 

• The Boston Bar Association, Criminal Law Section Steering Committee 

• Speaker for the Elder Strike Force on the topic, "Overview of Topics of Identity Fraud" 



104 



CRIMINAL BUREAU ENVIRONMENTAL CRIMES STRIKE FORCE 

• Speaker at the Plymouth District Attorney's Office on the topic, "Giving an Effective Closing 
Argument" 

• Panelist Speaker at the New England Chapter of the High Technology Investigation Association 
on the topic, "The Investigation of Complex Economic Crimes" 

• Panelist Speaker at the Heritage Green on the topic, "Elder Financial Abuse" 

• Speaker at Brighton High School on the topic, "BBA Brighton High School to Kill a Mockingbird" 

• Panelist Speaker at the Arlington Elder Conference on the topic, "Identity Theft" 

• Panelist Speaker at the Association of Certified Fraud Examiners on the topic, "Investigation of 
Complex Economic Crimes" 

• Speaker for the Boy Scout Troop 1 775, on the topic of "Constitutional Law" 

• Panelist Speaker for The MCLE Cybercrime and Corporate Fraud on the topic, "Rights and 
Remedies" 

ENVIRONMENTAL CRIMES STRIKE FORCE 

The Massachusetts Environmental Crimes Strike Force (ECSF) is a unique interagency enforcement 
tool used in the investigation and prosecution of violations of the Commonwealth's environmental laws. 
Through the cooperation of the Attorney General, the Secretary of Environmental Affairs, the Department 
of Environmental Protection (DEP) and the Department of Fisheries, Wildlife and Environmental Law 
Enforcement, the ECSF brings attorney, technical and police resources under a single umbrella. The 
ECSF provides the legal, scientific and investigative expertise necessary to identify environmental violations, 
evaluate their impact on public safety and the environment, and develop the evidence necessary to prosecute 
environmental crimes. The types of cases prosecuted by the ECSF include illegal treatment and disposal 
of hazardous waste; water pollution; failure to notify of hazardous material releases; air pollution cases 
resulting from burning of wastes and illegal removal of asbestos; and illegal dumping of, among other things, 
abandoned drums and tire piles. 

The staff of the ECSF Division is comprised of three prosecutors, one secretary and four environmental 
police officers from the Department of Fisheries, Wildlife and Environmental Law Enforcement. DEP 
scientists and engineers working out of the DEP's Boston office, as well as its four regional offices located 



105 



CRIMINAL BUREAU ENVIRONMENTAL CRIMES STRIKE FORCE 



in Wilmington, Worcester, Springfield and Lakeville, make up the ECSF technical staff. These scientists 
span the gamut of environmental specialties and programs (e.g., air, water, wetlands). 

Fiscal Year 200 1 was a year of transition for the Environmental Crimes Strike Force Division. Assistant 
Attorney General Michael Dingle left the Strike Force in April 2000 and Assistant Attorney General 
Martin Levin left in July. Trooper John Lapan, the last state police officer assigned to the Strike Force, was 
reassigned out of the Attorney General's Office in October 2000 and Assistant Attorney General Pamela 
Talbot left in June of 200 1 . Secretary Brenda Toland left in November 2000. Assistant Attorney General 
Paul J. Molloy was appointed Chief of the Strike Force in September 2000 and Assistant Attorney 
General Nick Kosiavelon was assigned to the division in October 2000. Secretary Jenny Prokopovich 
joined the Strike Force in January 200 1 . 

During Fiscal Year 2001, the Environmental Crimes Strike Force took a leading role in a cross- 
bureau, inter-agency Asbestos Initiative with the DEP, the Environmental Protection Division, and the 
Division of Occupational Safety to stem the tide of illegal removal and disposal of asbestos. 

At the close of Fiscal Year 200 1 , the Environmental Crimes Strike Force was staffed by two Assistant 
Attorneys General, Paul J. Molloy and Nick Kosiavelon, by four members of the Environmental Police, 
Lt. Gail Larson, Sgt. Michael Sweeney, Officer Patrick Haley, Officer Michael Moore and secretary 
Jenny Prokopovich. 



CASE HIGHLIGHTS 

Highlights of cases handled by the Environmental Crimes Strike Force in Fiscal Year 200 1 include: 

• Commonwealth v. Frank Sigsbury/Modern Aluminum (Berkshire Superior Court) 
Modem Aluminum illegally treated hazardous waste resulting in the deaths of two employees. 
Frank Sigsbury, the owner, pled guilty to three felony counts of violating the Massachusetts 
Hazardous Waste Management Act and was sentenced to one year in the House of 
Corrections, suspended, placed on probation for two years, the first three months of which to 
be served on home confinement, monitored with an ankle bracelet. The defendant was fined 
$140,000. A condition of probation required that Sigsbury cease having any further 
involvement in the management of Modem Aluminum. 

Commonwealth v. Elite Chemicals (Suffolk Superior Court) Elite Chemicals discharged 
hydrochloric acid and caustic sodium hydroxide waste into the Springfield sewer system. 



106 



CRIMINAL BUREAU ENVIRONMENTAL CRIMES STRIKE FORCE 

Agreed upon civil pleadings were filed in Suffolk Superior Court. Elite paid a civil penalty of 
$425,000 and an additional $ 1 1 0,000 to fund a watershed protection plan for the Connecticut 
River Basin. 

• Commonwealth v. William Spear (Newburyport District Court) William Spear was 
charged with illegally disposing of two tractor trailer trucks loaded with drums of hazardous 
waste by abandoning them at a farm in Salisbury. The defendant was charged in District Court 
with four counts of violating the Massachusetts Hazardous Waste Management Act. 

• Commonwealth v. Elias Dow, M.D. (Dedham District Court) Elias Dow illegally 
disposed of infectious medical waste resulting in exposure to janitors. The defendant admitted 
to sufficient facts necessary to warrant a finding of guilty in Dedham District Court on two 
charges arising from his failure to label and illegal disposal of infectious medical waste which had 
been generated at his medical lab. The defendant was placed on supervised probation for a 
period of six years, during which time the operation and maintenance of his lab will be closely 
tracked, and was ordered to pay $6,000 to the Northeast Environmental Enforcement Project, 
an organization which provides education and training to environmental inspectors, investigators, 
and prosecutors throughout the northeastern United States and southeastern Canada. 

• Commonwealth v. Markings, Inc. (Plymouth District Court) Markings, Inc., is a 
corporation that paints lines on parking lots and roadways throughout New England. On 
October 28, 1999, Department of Environmental protection (DEP) inspectors responded to a 
complaint that the company was burning paint behind the companies Pembroke, Mass. facility. 
During the inspection, DEP observed open vats of burning paint behind the Pembroke facility. 
Markings, Inc. pled guilty to illegally disposing of hazardous waste (paint waste) by open 
burning. The Court imposed a $ 1 5,000 fine imposed. 

• Commonwealth v. Beiz Enterprises, Inc. (Suffolk Superior Court) Belz illegally 
removed and disposed of asbestos containing waste during renovations of a Holiday Inn in 
Randolph. Agreed upon civil pleadings were filed in Suffolk Superior Court. In addition, Belz 
paid a $100,000 civil fine. 

Five individuals in four different counties were indicted in Superior Court for the illegal removal 
and disposal of asbestos containing materials. An additional three individuals were convicted in 
District Court. 



107 



CRIMINAL BUREAU ENVIRONMENTAL CRIMES STRIKE FORCE 

• Commonwealth v. Andrew Jones Andrew Jones hired a tenant to illegally remove and 
dispose of asbestos insulation from a three-unit rental property owned by Jones in Greenfield, 
Massachusetts. Jones pleaded guilty to one count of violating the Massachusetts Clean Air Act 
and was sentenced to one year in the House of Corrections, suspended during two years of 
probation, subject to the payment of a $7,500 fine. 

• Commonwealth v. James Keeley and Commonwealth v. Robert Rocha The 

defendants illegally removed asbestos from a Needham residential property and a Dedham 
elementary school that resulted in contamination of both properties. The defendants pled guilty 
to four counts of violating the Massachusetts Clean Air Act. James Keeley was sentenced to 
two years of probation and ordered to pay $10,000 restitution. Robert Rocha was sentenced 
to two years probation and ordered to serve 200 hours of community service. 

Commonwealth v. Stephen Faulkner The defendant was charged with violations of the 
Massachusetts Clean Air Act, for failure to comply with asbestos regulations and violation of the 
Massachusetts Solid Waste Management Act, for the illegal disposal of asbestos waste. The 
defendant, a formerly licensed asbestos supervisor, admitted to sufficient facts to warrant a 
finding of guilty to violating the Clean Air Act and the Massachusetts Solid Waste Management 
Act. Judge John J. Curran, Jr. found Faulkner guilty of the illegal removal and disposal of the 
asbestos and placed the defendant on probation for one year and ordered him to pay a $ 1 ,000 
fine. 

• Commonwealth v. Kevin Holland The defendant was charged with violations of the 
Massachusetts Clean Air Act for failure to comply with asbestos removal regulations, violation 
of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act and 
larceny by false pretenses over $250. The defendant pled guilty to all counts and was 
sentenced to one year in the House of Correction, suspended, two years probation, $20,000 
restitution and ordered to comply with all asbestos regulations. The larceny by false pretense 
charge was dismissed. 



STATISTICAL SUMMARY 



During Fiscal Year 200 1 , the Environmental Crimes Strike Force opened 3 1 investigations and closed 
30 (some of which were opened in prior Fiscal Years). During the Fiscal Year, five individuals were 
indicted in Superior Court, three individuals and one corporation were charged in District Court and seven 



108 



CRIMINAL BUREAU FINANCIAL INVESTIGATION 

cases resulted in guilty pleas. Of the seven pleas, two were taken in Superior Courts and five were taken 
in District Courts. In addition, two corporations entered into civil consent judgments in Superior Court. 

During Fiscal Year 200 1 , dispositions of cases prosecuted by the Environmental Crimes Strike Force 
resulted in civil and criminal fines and restitution in excess of eight hundred thousand dollars. 



NON-CASE HIGHLIGHTS 

During Fiscal year 2001, members of the ECSF were involved in community activities and both 
attended and taught training classes inside and outside the Office of the Attorney General, including: 

• Conducting investigative training seminars for DEP Investigators. 

• Conducting environmental crime trainings for the Criminal Justice Training Council and a number 
of municipal police training academies. 

• Coordinating a cross-bureau, inter-agency Asbestos Initiative with the Environmental Protection 
Division, the Department of Environmental Protection and the Division of Occupational Safety to 
stem the tide of illegal removal and disposal of asbestos containing waste. 

• Attendance at monthly meetings of the Central Artery/Tunnel Environmental Oversight Committee, 
which oversees environmental compliance of the CA/T project, as the Attorney General's 
representative. 

• Attendance at monthly meetings of the Multi- Agency Task Force on Schools. 

• Formulation of the Healthy Schools Council, in conjunction with the Executive Office ofEnvironmental 
Affairs, the Division of Occupational Safety and the Department ofEnvironmental Protection. 

Service as the Office of Attorney General's representative at a number of conferences and trainings 
sponsored by the Northeast Environmental Enforcement Project. 

FINANCIAL INVESTIGATION DIVISION 

The Financial Investigation Division provides the Criminal Bureau with eight experienced civilian 
investigative professionals who investigate and assist in the prosecution of white-collar criminal cases. 



109 



CRIMINAL BUREAU FINANCIAL INVESTIGATION 

These investigations include larceny, public corruption, campaign finance violations, securities fraud, tax 
fraud and all other white collar frauds which are referred to the Division. The investigators bring to the 
Division many years of experience from investigating cases in local, state and federal government as well as 
private sector venues. 

Investigators assigned to the Financial Investigation Division work as part of the Bureau's team approach 
to criminal investigative work. Division members become involved in matters at the start of the investigation 
and work closely throughout the investigation with Criminal Bureau prosecutors and Massachusetts State 
Police assigned to the Bureau's Criminal Investigation Division. Investigators may also work on a case- 
by-case basis with investigative or audit personnel from referring agencies such as the Securities Division 
of the Secretary of State's Office, Board of Bar Overseers, Criminal Investigations Bureau of the Department 
of Revenue, and the Office of the State Auditor. 

As part of the investigation and prosecution team, Division investigators assist in the design and 
implementation of an investigative plan for each investigation. Criminal Bureau investigations require Division 
investigators to perform extensive examination and analysis of business, personal and financial records to 
document the illegal activities of the white collar criminal. Additionally, Division investigators conduct 
interviews of victims, witnesses and targets, and provide testimony before grand juries and in trial settings. 
Further, utilizing modem computerized technology, investigators are able to scan a wide array of informational 
databases as well as the Internet to track and profile potential subjects of criminal investigations. 

The majority of the Division's investigative assignments come from the Bureau's Economic Crime 
Division. The Division works closely with the Economic Crime Division Chief during the screening process 
and then with the assigned AAG when a matter has been accepted for formal investigation. The other 
major sources of investigative assignments for the Division included the Public Integrity Division and the 
Bureau's High Tech and Computer Crime Division. Since the Division's formation in 1995, it has also 
performed investigative assignments for the Bureau's Environmental Crimes Strike Force and the Appellate 
Division. 

During Fiscal Year 200 1 , the Division also committed investigative resources to the Special Investigations 
& Narcotics Division and to the Bureau's investigation of the Central Artery Third Harbor Tunnel Project. 
With respect to the former, the Division provided individual and corporate financial profile information for 
the state police in support of an undercover operation. With respect to the latter, Division members 
provided analytical and organizational support to the Bureau's Central Artery Third Harbor Tunnel 
investigation. 



IK) 



CRIMINAL BUREAU FINANCIAL INVESTIGATION 

This Fiscal Year, the Division was comprised of three Certified Fraud Examiners and five investigators 
with backgrounds from the banking industry, insurance industry, a private investigative firm and the Middlesex 
County District Attorney's Office. During the Fiscal Year, the Division included the following staff members: 
Paul Stewart, Director; David Baker; Bill Frugoli; Jen Hollingsworth; Brendan Kelleher; Jim McFadden; 
Jon Murphy; and Sallyann Nelligan. 



CASE HIGHLIGHTS 

• Commonwealth v. Arrighi et al. (Economic Crime Division) Last Fiscal Year, 
approximately one-third of the Division 's investigative resources were devoted to assisting in the 
Treasury investigation, which involved the theft of approximately $9,500,000 from the Treasury 
of the Commonwealth. The Treasury case was scheduled for trial early in Fiscal Year 2002 and 
accordingly, substantial investigative resources were devoted to this case during the 200 1 Fiscal 
Year. During the prior Fiscal Year, many members of the Division assisted and/or conducted a 
significant number of the pre-indictment interviews. Given the complex nature of the case, 
many members of the Division assisted and/or conducted a significant number of post- 
indictment interviews during the current Fiscal Year. Last Fiscal Year, the Division created a 
database of financial transactions seminal to the Treasury prosecution. During the present Fiscal 
Year, the Division devoted substantial resources to create summary charts based on that 
financial transactions database. 

• Commonwealth v. Ziad Shahin (Economic Crime Division) The Division has devoted 
substantial resources in furtherance of the prosecution of Ziad Shahin. Shahin fraudulently 
transferred an annuity investment from the Great American Life Insurance Company on behalf 
of the victim to a fish company for his own personal benefit and was indicted on charges 
including larceny over $250 and securities fraud. This case was scheduled for trial early in 
Fiscal Year 2002 and the Division devoted substantial resources in furtherance of the 
preparation for that trial. Among other services rendered by the Division was the preparation of 
the Commonwealth's summary witness at trial, which was a member of the Division. 

Following is a list of some of the other matters investigated by Division members during the Fiscal Year 
which resulted in indictments. As with the previously referenced matters, the Division requesting Financial 
Investigation Division involvement is listed parenthetically and more specific information about each of 
these matters can be found by referring to the referenced Division's section in the Bureau's report. 



Ill 



CRIMINAL BUREAU FINANCIAL INVESTIGATION 

• Commonwealth v. Stephen Holt (Economic Crime Division). 

• Commonwealth v. Percy W. Martin (Public Integrity Division). 

• Commonwealth v. Pamela Lozon (Economic Crime Division). 

• Commonwealth v. Zachary Hildreth (Economic Crime Division) . 

• Commonwealth v. Yovette Mumford (Economic Crime Division). 

• Commonwealth v. Shirley Hoak (Economic Crime Division). 

NON-CASE HIGHLIGHTS 

In addition to the investigative tasks, the Division also performs many administrative duties for the 
Bureau with respect to cars, seized evidence, and other such matters. The Division is responsible for the 
assignment, maintenance and reporting on the usage of all Bureau cars. The Division also maintains a log 
of all money seized by the State Police in association with any arrest. The seized money is kept in safety 
deposit boxes and the contents are inventoried on a quarterly basis by Division staff. Additionally, Division 
staff members prepare an accounting of all forfeited funds of the Special Investigations & Narcotics Division 
which are disbursed in accordance with the Commonwealth's forfeiture laws. The accounting system is 
designed as a management tool for the Bureau. 

The Division is also working with state police command to assist with background and warrant 
checks. For the upcoming Fiscal Year the Division is planning to move one staff member into an 
administrative investigator position whose duties will encompass all the tasks associated with seized evidence, 
forfeited funds, background checks, warrant checks and NCIC inquiries. 

Division members also take a turn in the rotation as "duty officers." The daily duty officers' duties 
involve dealing with all citizen inquiries for that particular day. 

OUTREACH 

The staffis also an integral part of the Bureau's outreach to referral agencies. We maintain contact with 
the Chief Investigator at the Criminal Investigations Bureau of the Department of Revenue and the Senior 



112 



CRIMINAL BUREAU FINANCIAL INVESTIGATION 

Financial Investigator at the Board of Bar Overseers, to update them monthly on the status of all referrals 
from their respective agencies to the Bureau. Our outreach efforts are designed to complement those of 
the Chief of the Economic Crime Division. 

TRAINING 



Division members have prepared and taught training sessions to their colleagues (the Attorney General 's 
Institute), personnel from outside referral agencies and also to groups such as, The Arson Investigators 
Association, Massachusetts Society of Certified Public Accountants, The Southeastern Massachusetts 
Fraud Investigators Association, Suffolk University, The Check Fraud Clearinghouse, The Boston Chapter 
of the International Association of Certified Fraud Examiners and local school districts. 

Presentations included: 

How to Perform Title Searches of Registered and Recorded Land, and Review Probate Court 
Records. 

• Interview and Report Writing Techniques. 

• Financial Investigative Techniques. 

• Investigative Resources for the Financial Investigator. 

The Division was also fortunate enough this Fiscal Year to send one staffer to a two-week training on 
Financial Crimes offered at the Federal Law Enforcement Training Center in Glynco, Georgia. 

INTERN PROGRAM 



The Division's intern program seeks to provide a valuable one semester training experience for interested 
students who have a background in accounting, finance, business law or criminal justice. Through the 
efforts of our intern coordinator, the Division has been provided with a steady stream of talented interns 
from Boston area schools. 



113 



GOVERNMENT BUREAU 

Administrative Law Division 
Trial Division 



GOVERNMENT BUREAU 



GOVERNMENT BUREAU 

The Government Bureau provides representation for the Commonwealth and its agencies and 
officials in all types of civil litigation, and for employees of the Commonwealth with respect to 
certain civil claims made against them resulting from the performance of their duties. The Bureau 
also provides 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 unnecessary litigation. As in previous years, the Bureau in fiscal year 2001 
continued 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. 

The Government Bureau consists of an Administrative Law Division and a Trial Division. 
During fiscal 2001 , several attorneys were assigned permanently to work in both the Administrative 
Law and Trial Divisions, and a sampling of cases from each division was assigned 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. Both divisions initiated affirmative litigation on behalf of state 
agencies and the Commonwealth and submitted 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 the legal review of all newly enacted town by-laws; the preparation of legal opinions for 
constitutional officers, heads of agencies, and certain other officials concerning issues arising from 
the performance of their official duties; and the review of proposed statewide initiative and 
referendum questions under amendment article 48 of the Massachusetts Constitution to determine 
whether such questions are of the type that may lawfully appear on the ballot. 

The Trial Division defends suits seeking damages or other relief for alleged wrongful acts of 
government officials or employees, particularly torts, real estate matters, contract-related disputes, 
employment disputes, civil rights violations, 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. 

During fiscal 2001 , the Government Bureau executive staff included the following staff members: 
Stephanie Lovell, Chief; Sherrie Costa; Peter Sacks; and Ernest Sarason. 



117 



GOVERNMENT BUREAU 



Affirmative Litigation 

Both the Administrative Law Division and the Trial Division initiate affirmative litigation on 
behalf of the Commonwealth, when such litigation is in the public interest; furthers the Attorney 
General's priorities; and has a significantly high monetary value or raises legal or policy issues of 
concern to the public and the Commonwealth. The Government Bureau maintained an active docket 
of affirmative litigation in fiscal 2001 to protect the public interest and the interests of its state 
agency clients. Highlights of this affirmative litigation were as follows: 

• Commonwealth v. Phillips (Suffolk Superior Court). The Attorney General had 
filed suit in fiscal 2000 on behalf of the Teachers Retirement Board, seeking to recover 
over $800,000 of unearned pension benefits from a retired teacher who had been 
mistakenly paid those benefits between 1990 and 1999. The court appointed a receiver to 
prevent the concealment or transfer of the assets of the teacher and her husband, and the 
court entered a consent judgment and execution against the defendants for nearly $1 
million 

• Waskiewicz v. Processed Food Products Embargoed at 209 Mystic Avenue, 
Medford (Somerville District Court). The Attorney General, on behalf of the Department 
of Public Health, had filed a "petition for libel of condemnation" in fiscal 2000, seeking 
permission to destroy adulterated frozen ravioli and other food products prepared by a 
company that had allegedly been operating under unsanitary conditions, including using 
equipment contaminated by rodent infestation. After the company voluntarily agreed to 
destroy all food products previously embargoed by the Department of Public Health, the 
court entered a consent judgment under which the company agreed to cooperate fully 
with the Department. 

• Ford v. Herson (Middlesex Superior Court). On behalf of the State Retirement 
Board, the Attorney General moved to intervene in a medical malpractice case brought 
by a former capitol police officer who alleged that he had been forced to retire after being 
mis-diagnosed with angina. The Board seeks to recover approximately $400,000 in 
disability retirement benefits paid to the plaintiff over the past twenty years, if the 
plaintiff recovers lost wages as a result of any malpractice. 



US 



GOVERNMENT BUREAU 



• Commissioner of Veterans' Services v. Town of Lexington (Suffolk Superior 
Court). The Attorney General filed suit to compel the Town to appoint a full-time 
veterans' agent or join a veterans' services district as required by state law. 

• Secretary of the Commonwealth v. AFSCME Council 93 (Suffolk Superior Court). 
The Attorney General filed suit to vacate an arbitrator's decision to place a former 
employee of the Essex County Commissioners' Office in a position with the Essex 
Registry of Deeds. 

• Secretary of the Commonwealth v. Election Commissioners of the City of Boston 

(Suffolk Superior Court). On behalf of the Secretary, the Attorney General sought to 
require Boston election officials to re-examine the voting machines used in the City of 
Boston at the November 7, 2000, state election, in order to properly record and transmit 
to the Secretary the correct numbers of "yes" and "no" votes on the eight statewide ballot 
questions, as well as on two non-binding public policy questions that appeared on the 
ballot in portions of the City. Incorrect results had initially been recorded in at least fifty 
precincts throughout the City. The City cooperated in the litigation and the court ordered 
reexamination of all voting machines. Although vote tallies were changed, the ultimate 
result did not change on any ballot question. 

• Ruthardt v. United States (U.S. District Court). The Attorney General, on behalf of 
the Commissioner of Insurance acting as receiver of a liquidated insurance company, 
American Mutual, sought declarations that (1) claims by the United States against the 
estate were subject to the bar date for claims established by the Massachusetts Supreme 
Judicial Court; and (2) the Commonwealth may distribute assets to the state insurance 
guaranty funds as assignees of policyholders before paying non-policyholder claims of 
the United States. 

• Public Petroleum, Inc. v. J.P. Noonan (Plymouth Superior Court). The Attorney 
General intervened on behalf of the Underground Storage Tank Board and the 
Underground Storage Tank Petroleum Product Cleanup Fund, seeking to recoup more 
than $100,000 in reimbursement the Fund had paid the plaintiff for the cost of cleaning 
up a gasoline spill at its station in Seekonk. The Fund also sought a declaration that it 
was entitled to a set-off against future claims by the plaintiff against the Fund. 

• Lalli v. Bishay (Suffolk Superior Court). The Attorney General, on behalf of the 
state Commissioner of Public Safety, joined by the Town of Brookline, obtained 



119 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



preliminary and then permanent injunctions against the operation of dangerous elevators 
in a Brookline warehouse. Prior to the injunctions, the elevators had been operated in 
violation of shut-down notices issued by a Department of Public Safety elevator 
inspector. 

• Commonwealth v. Bernhard (Suffolk Superior Court). On behalf of the Secretary 
of the Commonwealth, the Attorney General obtained an injunction against the operators 
of a "Vote-Auction.com" Internet website prior to the November 2000 presidential 
election. This website had offered to sell to the highest bidder the votes of more than 700 
Massachusetts citizens. By the middle of October, the leading bidder had offered a total 
of $4,000 for these votes. 

• Commonwealth v. National Association of Government Employees (Suffolk 
Superior Court). On behalf of the Office of Campaign and Political Finance, the 
Attorney General filed suit against a political action committee that had failed to pay 
$30,000 it had previously agreed to pay to settle claims of alleged violations of campaign 
finance laws. 

Government Bureau attorneys also litigated numerous cases through the Attorney General's 
Abandoned Housing Project. The project is designed to assist community groups in choosing and 
appointing their own people to take over abandoned houses that, due to the absentee owners' 
indifference, have created a health, safety and crime hazard for the community. The Attorney 
General assists the community groups by petitioning the appropriate court for an order permitting 
the community group to appoint their receiver and take charge of the blighted property, for the 
benefit of the neighborhood. Once the receiver is appointed, the receiver and the community group 
work together on the actual repair and rehabilitation of the property. 

ADMINISTRATIVE LAW DIVISION 

The Administrative Law Division has three principal functions: (1) to defend lawsuits against 
state officials and agencies concerning the legality of governmental operations, particularly those 
seeking injunctive or declaratory relief; (2) to review all newly enacted town by-laws; and (3) to 
prepare legal opinions for constitutional officers, heads of agencies, and certain other officials 
concerning issues arising from the performance of their official duties. During fiscal 2001 , significant 
events occurred in each of these areas. 



120 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



During fiscal 2001, the Administrative Law Division included the following staff members: 
Judith Yogman, Chief; Deborah Anderson; Lydia Badolato; Dena Barisano; Thomas Barnico; John 
Bowman; Betsy Broadman; Romeo Camba; Judith Cassino; Julie Collins; Pierce Cray; Edward 
DeAngelo; Maureen Desmond; Wanda Devereaux; Portia Hall; Daniel Hammond; John Hitt; 
Quinette Littleton; Bernadette Lovell; Maria Makredes; Marianne Meacham; Pauline O'Brien; Susan 
Paulson; Anthony Penski; Eva Poole; Christopher Quaye; Robert Quinan; William Reynolds; Juliana 
Rice; Robert Ritchie; Cynthia Rothaupt; Adam Simms; Ginny Sinkel; Amy Spector; Steven Thomas; 
Hung Tran; Peter Wechsler; Richard Weitzel; and Jane Willoughby. 



Defensive Litigation 

The Division litigated cases in a wide range of subject areas in fiscal 2001. Summaries of 
appellate and federal district court cases from some of the more significant areas are set forth 
below. 

In the disability discrimination area, notable cases litigated during fiscal 2001 included the 
following: 

• Currie v. Group Insurance Commission (U.S. District Court). The court held that 
the state employees' long-term insurance disability plan, which allows benefits beyond 
one year for mentally disabled individuals only if they are hospitalized, does not violate 
the Equal Protection Clause, the Due Process Clause, or the Americans with Disabilities 
Act. 

Disability Law Center v. Riel (U.S. District Court). The court allowed a mental 
health advocacy organization to access records kept at a state mental health facility in 
order to investigate allegations of abuse by the facility's employees. 

Rolland v. Cellucci (U.S. District Court). The court approved a settlement 
agreement in a Medicaid/ADA class action suit brought on behalf of mentally retarded 
nursing home patients against various state officials. 

Notable cases litigated during fiscal 2001 involving children and families included the following: 



121 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



Paternity of Cheryl (Supreme Judicial Court). The court held that a father could not 
move to set aside a judgment of paternity when, more than five years after he voluntarily 
acknowledged paternity, genetic tests established that he was not the child's father. 

Adoption of Marc (Appeals Court). The court affirmed a trial court decree 
dispensing with the need for parental consent to the adoption of a child, holding that a 
mother was not entitled to an evidentiary hearing on her motion for relief from the decree. 

Adoption of Keefe (Appeals Court). The court affirmed a trial court decree 
dispensing with the need for parental consent to the adoption of a child who was a victim 
of Munchausen Syndrome, in which the child's parent deliberately sought attention by 
inducing or causing illnesses in the child. 

• Adoption of Arnold (Appeals Court). The court affirmed a trial court decree 
dispensing with the need for parental consent to the adoption of a child, rejecting the 
father's arguments that the Department of Social Services did not meet the heightened 
burden of proof required by the Indian Child Welfare Act and that the trial court 
erroneously allowed into evidence children's hearsay statements of sexual abuse. 

• Adoption of Serge (Appeals Court). The court affirmed a trial court decree 
dispensing with the need for parental consent to the adoption of a child, holding that a 
mother's prior history of drug and alcohol addiction supported a finding of parental 
unfitness, that the child's close attachment to his foster family further showed that 
adoption would be in his best interest, and that the Department of Social Services made 
sufficient efforts to assist the child's mother in attempts at reunification. 

Division attorneys also handled a substantial number of tax cases in the state appellate courts, 
including the following: 

• Commissioner of Revenue v. Jafra Cosmetics, Inc. (Supreme Judicial Court). The 
court held that a taxpayer's salespeople were "representatives" within the meaning of a 
statute imposing sales and use tax liability on out-of-state vendors with representatives in 
the Commonwealth. 

Fox v. Commissioner of Revenue (Supreme Judicial Court). The court reversed, in 
part, the Appellate Tax Board's determination that a taxpayer was personally responsible 
for payment of sales taxes owed by two companies. 



12: 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



• Truck Renting and Leasing Ass'n v. Commissioner of Revenue (Supreme Judicial 
Court). The court upheld the constitutionality of a corporate excise tax on a foreign 
corporation that leased vehicles to persons who operate them in Massachusetts. 

Town of Boylston v. Commissioner of Revenue (Supreme Judicial Court). The 
court held that land under reservoir water could not be valued for purposes of computing 
payments in lieu of taxes due to the town of Boylston, and that the valuation 
methodologies for non-reservoir land within the watershed were not arbitrary and 
capricious. 

Horvitz v. Commissioner of Revenue (Appeals Court). The court vacated and 
remanded the Appellate Tax Board's denial of a taxpayer's claim for abatement of 
personal income tax, on the ground that the Board improperly assigned to the taxpayer 
the burden of proof on the issue of change of domicile. 

• Deveau v. Commissioner of Revenue (Appeals Court). The court reversed, as 
unsupported by substantial evidence and incorrect as a matter of law, the Appellate Tax 
Board's decision that certain taxpayers were engaged in a trade or business in the 
Commonwealth. 

Division attorneys handled several retirement cases resulting in reported decisions during fiscal 
2001, including the following: 

• MacLean v. State Board of Retirement (Supreme Judicial Court). The court held 
that a former government employee automatically forfeited his pension based on 
convictions for violations of the state's conflict-of-interest law. 

• Hosking v. Contributory Retirement Appeals Board (Appeals Court). The court 
held that the plaintiff was not entitled to participate in the Massachusetts Turnpike 
Authority's early retirement program while also collecting worker's compensation 
benefits, because he was not on the active payroll of the authority at the time. 

• Flanagan v. Contributory Retirement Appeals Board (Appeals Court). The court 
held that the State Board of Retirement had statutory authority to set off money that the 
pensioner earned from county employment against future retirement benefits. 



123 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



Kaplan v. Contributory Retirement Appeals Board (Appeals Court). The court held 
that the plaintiff was not entitled to a retirement allowance because he was terminated. 

• State Police for Automatic Retirement Association v. DiFava (U.S. District Court). 
The court dismissed plaintiffs attempt to reimpose the mandatory retirement age for 
State Police, which had been struck down in an earlier case. 

Division attorneys were also involved in other types of payment-of-benefits cases, including 
the following: 

• Dal 11/ v. Department of Correction (Supreme Judicial Court). Although the court 
opined that assault pay benefits were computed incorrectly, it ruled that claim preclusion 
barred a challenge to the calculation of these benefits. 

• Lebow v. Commissioner of the Division of Medical Assistance (Supreme Judicial 
Court). The court held that the plaintiff was ineligible for Medicaid reimbursement 
because she had sufficient available resources as a beneficiary of a trust. 

• Guerriero v. Commissioner of the Division of Medical Assistance (Supreme 
Judicial Court). The court held that a beneficiary of an irrevocable trust who executed a 
complete waiver of all beneficial interest in the trust deprived the trustee of discretionary 
power to disperse trust assets to the beneficiary and, therefore, such trust assets could not 
be considered as "available" to the beneficiary for purposes of determining her financial 
eligibility for Medicaid benefits. 

• Doyle v. Department of Industrial Accidents (Appeals Court). The court dismissed 
the plaintiffs claim that he was deprived of vocational-rehabilitation benefits without due 
process, finding that the plaintiff had no property interest in receiving such benefits and 
that, even if he did, the procedures afforded were constitutionally sufficient. 

In fiscal year 2001, as in prior years, most of the cases handled by Division attorneys involved 
review of state agency decisions under G.L. c. 30A, the State Administrative Procedure Act, or 
G.L. c. 249 § 4, the certiorari statute. Appellate decisions in such cases included the following: 

• Town of Hingham v. Department of Telecommunications and Energy (Supreme 
Judicial Court). The court affirmed DTE's decision approving a water company's request 
to increase rates in order to pay for a new plant. 



124 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



• Lincoln v. Personnel Administrator (Supreme Judicial Court). The court held that 
plaintiffs' challenge to a firefighter examination was barred for failing to exhaust 
administrative remedies. 

• AT&T v. Automatic Sprinkler Appeals Board (Appeals Court). The court 
affirmed the Automatic Sprinkler Appeals Board's decision requiring AT&T to install 
sprinklers in rooms of telephone company buildings not containing telephone equipment. 

• BAA Massachusetts, Inc. v. Alcoholic Beverages Control Commission (Appeals 
Court). The court affirmed the Commission's decision to suspend a trucking company's 
permit to transport alcoholic beverages within Massachusetts and to revoke the seller's 
package store license, while reversing the Commission's sanction against the common 
carrier that had transported the alcoholic beverages to the Massachusetts carrier. 

• Lewis v. Committee for Public Counsel Services (Appeals Court). The court 
affirmed a decision of the Committee for Public Counsel Services that attorneys had 
overtoiled for their services in representing indigent clients. 

Division attorneys handled a number of cases during the past fiscal year that challenged the 
validity of state statutes and regulations. Significant decisions in such cases included the following: 

• Roe v. Attorney General (Supreme Judicial Court). The court upheld the 
constitutionality of a statute requiring sex offenders to mail personal information to the 
Sex Offender Registry Board before receiving a hearing on their present dangerousness. 

• Crown Electrical Supply Co. v. State Office for Minority and Women's Business 
Assistance (Appeals Court). The court upheld the denial of plaintiff s application for 
certification as a women-owned business, for failing to comply with SOMWBA's 
regulations, and held that SOMWBA had the authority to promulgate those regulations. 
Although the court upheld the validity of SOMWBA's regulation requiring women- 
owned businesses to be "independent," it invalidated another regulation requiring women 
owners to make sufficient "investment" in their companies. 

• Consolidated Cigar Corp. v. Reilly (U.S. Court of Appeals for the First Circuit). 
The court upheld the validity of the Attorney General's regulations limiting the areas in 
which tobacco manufacturers can advertise their products. 



125 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



• Phillip Morris, Inc. v. Reilly (U.S. District Court). The court declared the state's 
tobacco ingredient disclosure statute unconstitutional. 

• McGuire v. Reilly (U. S. District Court). The court enjoined the enforcement of the 
Massachusetts reproductive health facility buffer zone statute, finding that it violated the 
plaintiffs rights to free speech and equal protection. 

• Comfort v. Lynn School Committee (U.S. District Court). The court dismissed 
claims against the Commonwealth, a defendant intervenor for purposes of defending the 
Racial Imbalance Law, on Eleventh Amendment and other procedural grounds. 

Division attorneys handled several appellate cases involving election issues during fiscal 2001: 

• Robinson v. State Ballot Law Commission (Supreme Judicial Court). The court 
held that nomination papers that were copied with the back side upside down did not 
violate the statutory "exact copy" requirement. 

Mazzone v. Attorney General (Supreme Judicial Court). The court held that the 
Attorney General properly certified an initiative petition concerning asset forfeiture and 
drug treatment as not excluded from the initiative process. 

During fiscal 2001, the Administrative Law Division opened 1,01 1 cases and closed 536 cases. 
At the close of the fiscal year, 1 ,890 cases were pending in the Division. Cases handled by Division 
attorneys resulted in 21 reported decisions of the Supreme Judicial Court, 16 reported decisions of 
the Massachusetts Appeals Court, 1 reported decision 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. In addition, Division attorneys were involved in numerous cases in those courts 
and in state trial courts that resulted in unpublished decisions. 

MUNICIPAL LAW UNIT 



The Administrative Law Division's Municipal Law Unit discharges the Attorney General's 
responsibility of reviewing and approving municipal by-laws and by-law amendments from the 
more than 300 towns throughout the Commonwealth. By statute, the Attorney General is charged 
with the review of town general by-laws (GL. c. 40, § 32), town zoning by-laws (GL. c. 40A, § 5), 
town historical district by-laws (GL. c. 40C), and city and town Home Rule Charter amendments 
(GL. c. 43B). 



120 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



With respect to town by-laws, the Attorney General exercises a limited power to disapprove local 
legislative action if the proposed amendment is found to be inconsistent with the laws or the Constitution of 
the Commonwealth. The Attorney General has 90 days from the date on which he receives by-law 
amendments from the Town Clerk in which to conduct his review. He will disapprove any amendment, or 
appropriate portion thereof, where the amendment is in facial conflict with substantive state law or where 
mandatory procedural requirements of adoption are not met. 

With respect to Home Rule Charter amendments, G.L. c. 43B prescribes that municipal charters and 
charter amendments from any of the 35 1 cities and towns in the Commonwealth must be reviewed by the 
Attorney General, who must render his opinion on consistency with state law within 28 days after receipt 
of a proposed charter amendment. The Attorney General is not required to review municipal charters or 
charter amendments enacted by the Legislature in special acts. 

The most prevalent subjects of local regulation during fiscal 2001 were by-laws regulating 
telecommunications facilities, wetlands, open space, agricultural uses and structures, and 
sexually-oriented businesses. 

Going beyond what is required by statute, Attorney General Tom Reilly has chosen to extend 
the services and resources of his Municipal Law Unit by providing, where time permits, voluntary 
informal review of proposed town by-law amendments, and-even though not subject to mandatory 
legal review by the Attorney General-proposed city ordinances. During fiscal 2001, the Unit 
experienced a marked increase in the number of calls from local public officials and members of 
the general public, many of which related to anticipated changes in local laws and charters. 

During fiscal 2001, the Unit experienced an increase in the number of cases in litigation in 
which municipal law issues are involved. Even where the Attorney General has initially elected 
not to intervene or otherwise participate in such cases, the Unit monitors developments so that the 
Attorney General may become involved if warranted by developments in the case. At the close of 
fiscal 2001, Unit attorneys were monitoring approximately 50 such matters, an increase of about 10 
cases from the previous year. 

Over time Unit personnel have gradually increased the Unit's outreach efforts by writing and speaking 
to groups all around the Commonwealth. Particular emphasis has been placed on working with town 
clerks and local planning boards, as both are intimately involved in the substance and procedure of local 
legislation. During fiscal 2001 , Chapter 299 of the Acts of 2000 was first used to save a zoning article, 
submitted to the Unit for approval, in which the planning board hearing notice was deficient. The authority 
conferred by Chapter 299 was exercised in over 20 instances, and in all instances no objection was filed 



127 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



to the Attorney General's waiver of minor procedural deficiencies, thus allowing the Unit to approve 
amendments that would have otherwise had to be disapproved. 

The Guidebook for Town Clerks and Planning Boards was revised several times during this fiscal year, 
as were the forms required for the submission of by-laws. Unit personnel attended the Massachusetts 
Town Clerks' Conventions to hold classes and to present and explain the changes in the forms used for 
submitting the by-law packets. The Unit also participated in the First Annual Municipal Law Update 
Conference. The Director of the Municipal Law Unit participated in several International Municipal Law 
Association Conferences throughout the year, as well as the Massachusetts City Solicitors and Town 
Counsel Association's monthly seminars. The Director spoke at the Massachusetts Association of Planning 
Directors' Conference, the Massachusetts Association of Conservation Commissions Annual Meeting, a 
New Jersey State League of Municipalities meeting, and a convention of the Massachusetts Municipal 
Association. He wrote articles for the Massachusetts Municipal Association's Beacon and Advocate 
magazines and for Massachusetts Continuing Legal Education (MCLE) as well as being a member of the 
MCLE faculty. The Unit's Town By-law Coordinator wrote a number of articles for the Massachusetts 
Town Clerks' Association monthly newsletter, The Public Recorder, and was a panel speaker at Western 
New England College School of Law in "Careers in Government and Public Interest Law." 

During fiscal 2001 , the Municipal Law Unit reviewed 57 1 general by-laws, of which 5 1 8 (90.7%) 
were approved, 1 6 (2.8%) were approved with partial deletion, 10(1 .8%) were disapproved, and 27 
(4.7%) were returned with a finding that no action by the Attorney General was required by state 
law. The Unit reviewed 623 zoning by-laws, of which 561 (90.0%) were approved, 25 (4.0%) were 
approved with partial deletion, 36 (5.8%) were disapproved, and 1 (.2%) was returned with a finding 
that no action by the Attorney General was required by state law. The Unit reviewed 141 zoning 
map amendments, of which 137 (97.2%) were approved, and 4 (2.8%) were disapproved. The Unit 
reviewed 6 historic district by-laws, all of which were approved. Finally, the Unit reviewed 1 1 
charter amendments, which were all found to be consistent with state law. The Unit met all review 
deadlines, so that in no instance was a submission constructively approved for failure to act within 
the period prescribed by state law. 

During fiscal 2001, the Municipal Law Unit included the following staff members: Robert 
Ritchie, Director; Sandra Giordano; and Kelli Lawrence. 



GOVERNMENT BUREAU ADMINISTRATIVE LAW 



Opinions 

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

Formal opinions are not offered on questions raising legal issues that are the subject of litigation or that 
concern ongoing collective bargaining. Questions relating to the wisdom of legislation or administrative or 
executive policies are not addressed. Generally, formal opinions will not be issued regarding the interpretation 
of federal statutes or the constitutionality of enacted legislation. Formal opinion requests from state agencies 
that report to a cabinet or executive office must first be sent to the appropriate secretary for his or her 
consideration. If the secretary believes the question raised is one that requires resolution by the Attorney 
General, the secretary then makes or approves the opinion request. 

During fiscal 200 1 , the Attorney General issued three formal opinions, copies of which are included at 
the end of this report. (See Appendix, following p. 223.) An opinion issued to the Secretary of Public 
Safety addressed the scope of enforcement authority vested in the Office of the State Fire Marshal under 
the Commonwealth's comprehensive fire safety code as pertaining to state-owned and state authority- 
owned buildings. An opinion issued to the Commissioner of Public Health addressed whether local boards 
ofhealth have jurisdiction to enforce the provisions of the State Sanitary Code against state-owned facilities. 
An opinion issued to the Executive Director of the Public Employee Retirement Administration Commission 
(PERAC) addressed the proper scope of PERAC's field examinations of the Pension Reserves Investment 
Management ("PRIM") Board. 

During the same time period, the Attorney General issued 47 letters providing informal advice, providing 
a certification or designation to a federal agency in connection with the Commonwealth's participation in a 
federal program, or declining to give advice. 



129 



GOVERNMENT BUREAU TRIAL 

TRIAL DIVISION 

The Trial Division is responsible for defending the Commonwealth in civil cases brought against the 
Commonwealth and its departments, agencies and employees in a variety of actions primarily consisting of 
tort, eminent domain, employment, contract, civil rights and land registration actions. Members of the 
Division analyze each case at the outset to see if the case should be resolved through settlement or in favor 
of the Commonwealth by dispositive motion. If not, the case proceeds through the discovery phase, and 
the Division continues to try to resolve the case through settlement or by filing a summary judgment motion. 
Alternative dispute resolution approaches are always considered and are utilized at any appropriate stage 
of the case. If the case goes to trial, the Trial Division aggressively defends the Commonwealth and its 
employees, resulting in millions of dollars in savings to the Commonwealth each year. 

During fiscal 2001 , the Trial Division included the following staff members: David Kerrigan, Chief; 
Rosemary Connolly; Dorothy Anderson; Steven Baddour; Jason Barshak; Mary Elizabeth Basile; Matthew 
Berge; Crispin Birnbaum; John Bowen; Ranjana (Chand) Burke; Stephen Clark; Karen Craffey; William 
Daggett; Irene Del Bono; Stephen Dick; Thomas DiGangi; Kristen Dionisi; Kristen Donald; Anne Edwards; 
Janet Elwell; Lisa Fauth; Susan Gaeta; Norine Gannon; Michelle Kaczynski; Angela Lee; Jennifer Lespinasse; 
Lucinda Macdonald; Howard Meshnick; Daniel Mulhem; Holly Parks; Maite Parsi; Frances Riggio; Beverly 
Roby; Eric Seyfert; A. Thomas Smith; Mark SutlifT; James Sweeney; Marini Torres-Benson; Antonette 
Traniello; Teresa Walsh; Doris White; Jonathan White; and Charles Wyzanski. 



TORTS 



Most of the trials conducted by members of the Trial Division involve claims that the Commonwealth 
breached a duty of care owed to a member of the public, resulting in personal injury or property damage. 
The following are some of the tort cases tried by the Division during fiscal 200 1 : 

Brown v. Roxbury Community College (Suffolk Superior Court). Plaintiff sought 
damages based on a fall due to alleged negligent maintenance of stairs at the college. The 
defense was that plaintiff had failed to show the College had been negligent in any 
fashion. After trial, the jury returned a verdict for the defense. 

• Austin v. LeRoy (Middlesex Superior Court). A former employee of the Fernald State 
School brought this action against a co-worker, alleging defamation and intentional infliction of 
emotional distress. The co-worker had reported seeing the plaintiff push a client, causing the 
client to fracture his knee, and the co-worker reported the incident in accordance with his 



130 



GOVERNMENT BUREAU TRIAL 



obligation as a "mandated reporter" under G.L. c. 19C. The plaintiffclaimed that the co-worker 
lied about the incident to retaliate for the plaintiffs having spurned the co-worker's sexual 
advances. After trial, the jury returned a verdict in the defendant's favor, finding that the 
defendant was a "mandated reporter" who had "reasonable cause to believe that the client 
suffered an injury as a result of abuse." 

• Andrutis v. State Police (Plymouth Superior Court). An elderly couple was badly injured 
when a state police trooper hit the back of their car. The trooper claimed that he was hit from 
behind by a third car, which no one else saw. The couple sued the State Police and the trooper 
individually. The State Police's defense was that the trooper was not acting in the scope of his 
employment at the time of the accident, as he was in his own car and was driving home after his 
shift had ended. After trial, the jury found the State Police not liable, agreeing that the trooper 
was not acting in the scope of his employment at the time of the accident. 

• Pantojas v. Commonwealth (Essex Superior Court). The plaintiff sued after a slip-and- 
fall in the shower at the Geiler Memorial Pool in Lawrence. The defense was that the plaintiff 
had not shown that the Department of Environmental Management had committed any negligent 
act and that the plaintiff had not paid any fee to use the pool, so that the recreational use statute 
barred his claim. After trial, the court directed a verdict for the Commonwealth when the jury 
found that the plaintiff did not pay a fee to use the pool. 

• Hogan v. State Police (Suffolk Superior Court). Plaintiff was injured when she struck the 
rear end of a Massachusetts Turnpike vehicle being driven by a state trooper. Plaintiff alleged 
that a co-defendant had parked in a negligent manner after breaking down on the Turnpike, 
causing the accident when the trooper began assisting the broken-down vehicle. The jury found 
that the trooper was negligent, but that such negligence was not the substantial cause of the 
accident. The plaintiff moved for a new trial and the court granted the motion; a retrial is 
scheduled. 

• O'Connor v. Department of Social Services (Worcester Superior Court). Plaintiffs 
brought what amounted to a "wrongful adoption" case, alleging that DSS had failed to 
inform them of past problems experienced by an adopted girl. The defense was that plaintiffs 
had been informed of all relevant past experiences. After a bench trial, the court entered 
judgment for DSS on all counts. 

• Pacheco v. Commonwealth (Suffolk Superior Court). Plaintiff sought damages for a 
broken arm suffered after falling off a rope swing on a tree at the Horseneck Beach 



131 



GOVERNMENT BUREAU 



campground. The defense was that the swing had not been installed by the Commonwealth and 
that the tree was located in a protected area. After trial, the jury returned a verdict for the 
Commonwealth. 

Many tort cases are also resolved through other means, including settlement and dispositive motions. 
The following are examples of such cases during fiscal 2001 : 

• Brown v. Commonwealth (Essex Superior Court). Plaintiff was injured when a bench on 
which she was sitting outside a Boston Housing Court courtroom collapsed without warning. 
Plaintiff sought $75,000; the case was mediated and settled for $ 1 0,000. 

• Lesko v. Department of Social Services (Suffolk Superior Court). This negligence 
action was brought after DSS placed infant twins in foster care on Cape Cod and one of 
the twins died in a fire at the foster home. DSS acknowledged liability, and a settlement 
of $90,000 was negotiated. 

Hedberg v. Board of Registration of Professional Engineers (Orleans District 
Court). Plaintiff claimed that he had been harmed by the Board's failure to take action 
against an engineer. The court dismissed the action on the Board's motion asserting that 
the district court lacked subject matter jurisdiction over the Board, that plaintiff had failed 
to meet the presentment requirements of the state Tort Claims Act, and that the Act 
barred suits against the Board arising out of its discretionary functions. 

• Desjardins v. Commonwealth (Barnstable Superior Court). This wrongful death 
case was brought by the estate of a woman who died in a car accident, allegedly due to 
accumulated ice and snow, on Route 6 on Cape Cod. The Commonwealth moved for 
summary judgment on the basis that the decision concerning when to plow the roads is 
necessarily a discretionary one, and therefore the Commonwealth was immune from 
liability for such conduct under the Tort Claims Act. The court agreed and entered 
judgment for the Commonwealth. 

• Jordan v. Commonwealth (Plymouth Superior Court). After hitting a snow plow 
during a snowstorm and sustaining injuries, plaintiff brought this action against the 
Massachusetts Highway Department and the plowing contractor. Plaintiff argued that 
MHD was liable because it did not station a warning truck behind the plow. The claim 
was dismissed on MHD's motion asserting immunity under the Tort Claims Act on the 



132 



GOVERNMENT BUREAU TRIAL 



grounds that MHD's actions were not the original cause of the accident and, because they 
involved discretionary functions, could not be the basis for liability. 

• Rodriguez v. Commonwealth (Suffolk Superior Court). The Department of Social 
Services was providing services for a family when the biological mother, who had legal 
and physical custody, left her infant son in the care of a mentally retarded neighbor. 
While in the neighbor's care, the son drowned. Plaintiff alleged that DSS was negligent 
in failing to remove the child from the mother's custody, failing to protect the child, and 
failing to prevent the child from being left in the care of an incompetent babysitter. The 
Commonwealth sought and obtained summary judgment based on the immunity provided 
by the Tort Claims Act for cases in which the Commonwealth was not the original cause 
of the injuries in question. 

REAL ESTATE 



The Division's real estate cases consist primarily of eminent domain disputes, in which persons 
whose land has been taken by the Commonwealth for a public purpose seek additional compensation 
for the taking. Unlike tort cases, there is no statutory cap that limits the Commonwealth's exposure 
to damages in these types of cases, so the potential liability in any case may amount to millions of 
dollars. The following are highlights of the real estate cases resolved during fiscal 2001: 

• Engdahl v. Commonwealth (Plymouth Superior Court). This case involved a partial 
taking in fee of half an acre in Plymouth as part of the Route 44 project. The plaintiff 
sought over $1 million in damages, while the Commonwealth's pro tanto payment was 
$35,000. After trial, the jury awarded the plaintiff $29,000, saving the Commonwealth 
hundreds of thousands of dollars. 

• Laham v. Commonwealth (Norfolk Superior Court). This case involved a taking of 
land along Route One in Wrentham. Plaintiff sought $700,000, but after trial, based on 
the testimony of the Commonwealth's appraiser and engineer, the jury found the plaintiff entitled 
to only $243,000, an amount less than the pro tanto that had already been paid. 

• Frontage Development Corporation v. Commonwealth (Suffolk Superior Court). This 
case involved a taking of one acre of plaintiff s land in South Boston for the Central Artery 
project. The plaintiff sought $7,800,000 in damages, while the Commonwealth's appraiser 



133 



GOVERNMENT BUREAU TRIAL 



testified to damages of $790,000. After trial, the jury awarded $797,000, saving the 
Commonwealth millions of dollars. 

• Cumberland Farms, Inc. v. Massachusetts Highway Department (Plymouth Superior 
Court). This case arose out of Mass Highway's efforts to widen a road, allegedly requiring a 
convenience store and gas station structure to be demolished and rebuilt. Plaintiffs expert 
opined that damages totaled $4 1 5,500, but after a day and one-half of trial, the case settled for 
$ 1 60,000, or one-third of the amount plaintiff sought. 

• In re: Scituate Property ( Land Court). A petitioner in a land registration case discovered 
the potential escheat interest of the Commonwealth in a six acre parcel of land located in 
Scituate. The petitioner agreed to pay $65,000 to the Commonwealth to settle the potential 
claim. 

CONTRACTS 



The Division defends the Commonwealth and its agencies in a variety of contract actions, consisting 
primarily of construction disputes, breach of lease cases, and bid protests. These cases often involve 
interpretation of a complicated statutory framework for public contracts, as well as complex bidding 
regulations. As with real estate cases, there is no statutory cap on the potential liability of the Commonwealth, 
so the Commonwealth's exposure can be quite large in any given case. The following are highlights of the 
contract cases resolved during fiscal 2001 : 

• FAMM v. Massachusetts Highway Department (Middlesex Superior Court). FAMM 
subcontracted to provide steel for a Central Artery-related building in South Boston. FAMM 
sued the general contractor for almost $ 1 million, and the general contractor sought to "pass 
through" the claim to Mass Highway. The court granted summary judgment for Mass Highway 
on the ground that the parties had entered into an accord and satisfaction. 

• Commonwealth v. Smith (Appeals Court). The Commonwealth sought indemnification 
for environmental cleanup costs on land taken for the Central Artery /Tunnel project, but the trial 
court entered summary judgment for the defendant. On the Commonwealth's appeal, the 
Appeals Court overturned the Superior Court's decision, finding that the Commonwealth was 
entitled to show whether the defendants are responsible for the contamination on the property. 



134 



GOVERNMENT BUREAU TRIAL 



Health Card Exchange, Inc. v. Middlesex Hospital (Appeals Court). Plaintiff 
appealed a Superior Court decision dismissing plaintiffs claim for $66,264 for computer 
services provided to the Middlesex County Hospital in 1995. The Appeals Court 
affirmed, agreeing with the defense's argument that the statutory requirement of a written 
contract applied and had not been satisfied. 

• Atlas Elevator Services, Inc. v. Department of Mental Health (Suffolk Superior 
Court). The plaintiff, a losing bidder for an elevator repair and maintenance contract for 
Worcester State Hospital, sought a preliminary injunction and other relief prohibiting the 
awarding of the contract. Although plaintiff was the lowest bidder, the Department of 
Mental Health had rejected plaintiffs bid for failure to meet specifications requiring a 
certain number of certified elevator repairmen. The court denied the plaintiffs efforts to 
enjoin award of the contract. 

• Allied Weatherproofing Co. v. Metropolitan District Commission (Suffolk 
Superior Court). Plaintiff sought a preliminary injunction and declaratory relief as a 
result of the MDC's decision to seek bids on a swimming pool filter system as a "public 
work" project under G.L. c. 30, § 39M, instead of as a "public building" project under 
G.L. 149, § 44. Plaintiff challenged the legality of the bidding process and sought an 
order enjoining the MDC from awarding any contracts until this case was resolved. The 
court denied the requested relief. 

EMPLOYMENT, CIVIL RIGHTS, AND OTHER CASES 

The Division handled numerous employment, civil rights, and miscellaneous cases during the 
course of the year. Significant employment cases included the following: 

Lamanque v. Department of Employment & Training (U.S. District Court). 
Plaintiff claimed that DET had terminated her employment in retaliation for her speaking 
out on the issue of handicap accessibility when the DET moved its office from 
Edgartown to Oak Bluffs in 1 992. After trial, the jury found for the plaintiff against two of the 
five individual defendants, awarding $ 1 7,500 in damages. Subsequently, however, the court 
granted DET's motion for judgment as a matter of law on the basis of qualified immunity, and 
judgment entered for all defendants on all counts. 



135 



GOVERNMENT BUREAU 



• Messac v. Department of Mental Retardation (U.S. District Court). Plaintiffclaimed 
that she was the victim of race discrimination at the Fernald School. Initially she alleged that she 
was disciplined more harshly than white employees. During trial, however, the court allowed 
her to her expand her case to include a racially hostile work environment claim. The jury found 
for DMR on her disparate treatment claim but awarded plaintiff $35,000 on her hostile work 
environment claim; DMR has appealed. 

• Branco v. Department of Revenue (U.S. District Court). The court granted DOR's 
motion for summary judgment based on plaintiffs failure to exhaust administrative 
remedies, a prerequisite to a Title VII employment discrimination claim. 

The Division handled a number of civil rights cases during fiscal 200 1 , including the following: 

• Spinal Corrective, Inc. v. Steingisser (Middlesex Superior Court). Plaintiffclaimed 
that the former chairman of the state Board of Registration of Chiropractors, in collusion 
with two insurance companies, tricked the other board members into adopting a policy 
that made plaintiffs computer diagnostic program unsaleable and caused plaintiff to lose 
millions of dollars. After trial, a verdict was directed for all defendants, and plaintiff was 
ordered to pay more than $90,000 to the defendants. 

Wilson v. McClure (U.S. District Court). A Pennsylvania boxing promoter sued the 
members of the state Boxing Commission for allegedly canceling his fight shows on the 
basis of his race. The defense was that the Commission applied its regulations in a non- 
discriminatory manner. After trial, a jury rendered a verdict totaling $160,000 in 
damages against two of the defendants, along with attorney's fees. While an appeal was 
pending, the case settled. 

• Turner v. Lemuel Shattuck Hospital (U. S. District Court). Plaintiff, a patient at 
the Boston Detox unit, was told to leave the program and responded by damaging a 
lounge area. He claimed that the campus police officers, who then arrested him, treated 
him roughly. The plaintiff brought federal civil rights and negligence claims. On the 
defendants' motion, the court dismissed the case. 

• Sidell-Maheras v. Commonwealth (Suffolk Superior Court). The court granted 
judgment for three Department of Social Services employees on the plaintiff foster 
parents' state civil rights act and intentional tort claims. The judge found that plaintiffs 
did not have any legally protected interest in continuing to be foster parents and that the 



36 



GOVERNMENT BUREAU TRIAL 



defendants did not violate plaintiffs' rights by making various decisions about the foster home, 
including closing it to new placements. 

• Lameire v. Machado (U.S. District Court). Plaintiff alleged that the Bristol County 
Commissioners, the Sheriff, and other officers of the Bristol County Superior Court were 
deliberately indifferent to plaintiffs history of suicide attempts, failed to prevent the 
plaintiff from attempting suicide, and failed to provide adequate medical assistance 
thereafter. The court granted defendants' motion for summary judgment on grounds of 
qualified immunity. 

The Trial Division opened 246 new tort cases in fiscal year 2001 and closed 139; at the close of 
the fiscal year, 835 such cases were pending. The Division opened 192 real estate cases and closed 
22 during fiscal year 2001; at the close of the fiscal year, 451 such cases were pending. The 
Division opened 25 contract cases and closed 18 during fiscal year 2001; at the close of the fiscal 
year, 140 such cases were pending. The Division opened 172 new employment, civil rights, and 
other miscellaneous cases in fiscal year 2001 and closed 73; at the close of the fiscal year, 265 such 
cases were pending. 



137 



PUBLIC PROTECTION 
BUREAU 

Civil Rights and Civil Liberties Division 

Consumer Protection and Antitrust Division 

Environmental Protection Division 

Investigations Division 

Division of Public Charities 

Regulated Industries Division 



PUBLIC PROTECTION BUREAU 



Public Protection Bureau 



The Public Protection Bureau manages and oversees civil and criminal affirmative litigation on behalf of 
the Commonwealth and its citizens; the development of policy, legislative and regulatory proposals; and 
personnel for six divisions: Civil Rights and Civil Liberties, Consumer Protection and Antitrust, Environmental 
Protection, Investigation, Public Charities and Regulated Industries. In addition, the Bureau has an office 
of the Chief Prosecutor, which brings criminal actions in appropriate cases. The divisions and the chief 
prosecutor's office also conduct investigations and publish reports in areas of interest arising out of their 
activities. 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. 

Bureau personnel also coordinate and staff Attorney General Tom Reilly'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 Commonwealth's schools 
to prevent disputes from escalating into violence. In addition, Bureau staff oversee a Conflict Intervention 
Team (CIT) of specially trained community mediators, who mobilize on a moment's notice to provide 
emergency mediation service to schools in crisis or on the verge of crisis. 

The Bureau oversees Attorney General Tom Reilly's Community Benefits Guidelines for both hospitals 
and HMOs. This initiative is staffed by members of the Regulated Industries Division, the Consumer 
Protection and Antitrust Division and the Public Charities Division. Members of the Consumer Protection 
and Antitrust Division and the Public Charities Division oversee reporting under the Hospital Guidelines. A 
member of the Regulated Industries Division oversees both reporting under the HMO Guidelines and the 
Attorney General's Community Benefits Advisory Task Force, convened for the purpose of advancing the 
goals of the Community Benefits Guidelines. 

The Bureau also has an internal task force of Elder Law Advocates comprised of Assistant Attorneys 
General and office Investigators in areas of elder law, including long term care issues, protective services, 
financial exploitation of elders, and home health care services. These advocates work in conjunction with 
the Elder Hotline to address specific elder protection concerns. 



141 



PUBLIC PROTECTION BUREAU CIVIL RIGHTS CIVIL LIBERTIES 



The Public Protection Bureau included the following staff members: Alice Moore, Chief; David Beck; 
William Porter; Linda Tomaselli; Howard Wise; Isabel Silva; Thomas Ulfelder; and Rose Ursino. 



CIVIL RIGHTS & CIVIL LIBERTIES DIVISION 

ENFORCEMENT OF THE MASSACHUSETTS CIVIL RIGHTS ACT 

The Civil Rights and Civil Liberties Division enforces 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. 
A violation of a civil rights injunctive order constitutes a criminal offense, punishable by a maximum often 
years in a state prison if the victim suffers bodily injury, or up to two and one-half years in a correctional 
facility if no bodily injury results. 

GENDER BIAS 



The Division works to protect women from hate-motivated violence in dating or social relationships. 
The Division prevailed in its first landmark MCRA case involving allegations of civil rights violations on the 
basis of gender in 1994. 

RACIAL, NATIONAL ORIGIN, & RELIGIOUS BIAS 



The Division addresses and responds to violence motivated by bias against a victim's race, national 
origin or religion. 

• Commonwealth v. Jason Nasser On February 2 1 , 200 1 , the Hampden Superior Court 
approved a consent agreement for injunctive relief until Nasser's twenty-fifth birthday, July 14, 
20 1 0, to resolve allegations that this student, affiliated with members of an alleged white 
supremacist group at Monson High School, placed a threatening, racist note in the school locker 
of a 12-year-old female black student. (Gordon, Healy) 



142 



PUBLIC PROTECTION BUREAU CIVIL RIGHTS CIVIL LIBERTIES 



ANTI-GAY BIAS 

The Division is committed to combating hate crimes directed at individuals based on their actual or 
perceived sexual orientation. 

• Commonwealth v. Jasmine Albelo, Gisele Albelo, Luis Campos, Jr., & Estaban 
Dominguez (Putnam High School in Springfield) The Division obtained a preliminary 
injunction from Hampden Superior Court on August 22, 2000, against four teenagers for bias 
motivated assault against a lesbian high school student. After a status conference held on 
September 1 9, 2000, the defendants agreed to execute seven year consent judgments, at 
conclusion of pending criminal cases. The court ordered injunctions remained in effect during 
the pendency of criminal matters. (Gordon, Cole, Healy) 

CIVIL RIGHTS IN THE SCHOOLS 



The Division focuses on ensuring the civil rights of students attending schools in the Commonwealth. 
The Division provided educational trainings to students, teachers and administrators on hate crimes and 
discrimination as well as sexual, racial, national origin, and religious harassment in the schools, including 
training programs to school administrators and teachers on their liability for failure to properly respond to 
hate crime and harassment incidents in the schools. Programs also included how to create comprehensive 
civil rights protection programs for students in middle and high schools and responding effectively to hate 
crimes on college and university campuses. 

• Attorney General Sponsored Civil Rights in Schools Training Program The Division 
organized and presented training conferences on November 9, 2000 in Northampton, Massachusetts 
(for school district teams in the four Western Massachusetts counties) and on February 8, 200 1 in 
Newton (for 26 school districts in Suffolk, Middlesex and Essex County school districts) titled, A 
Prerequisite for Safe Schools: Protecting Students from Harassment and Hate Crimes. The 
division designed the program so that school officials throughout Massachusetts could learn to use 
the publication Protecting Students from Harassment and Hate Crime - A Guide For Schools, 
jointly developed by N AAG's Civil Rights Working Group and OCR, effectively. (Cole, Berenson, 
Booth, Grant) 

• Office of Civil Rights, Department of Education, Trainings On September 22, 2000, the 
division chief served as co-presenter at an OCR sponsored conference for all the southern states 
titled Access to a Quality Education: The Civil Right of the 21st Century. He also trained the 



143 



PUBLIC PROTECTION BUREAU CIVIL RIGHTS CIVIL LIBERTIES 



Department of Education's Office of Civil Rights staff members in New England (January 30, 
200 1 ) and Atlanta (February 2 1 , 200 1 ) on how schools can effectively identify and address 
harassment in schools. (Cole) 

• NAAG Sponsored Civil Rights in Schools Train-the-Trainer Conference Based on a 
division proposal, NAAG sought grant money from the United States Department of Justice to 
train state attorneys general offices on practical tools for providing civil rights training and technical 
assistance to school officials in their states. (Cole) 

THE MASSACHUSETTS HATE CRIMES TASK FORCE 



Since its inception, the Massachusetts Hate Crimes Task Force has helped law enforcement officials 
to more effectively coordinate enforcement activities and share information and expertise on combating 
and prosecuting hate crimes in the Commonwealth. The Task Force is now comprised of over one 
hundred law enforcement officers and prosecutors, community leaders, civil rights advocates, human rights 
commission leaders, victim assistance professionals, hate crime researchers, civil rights trainers, educators, 
school diversity/tolerance curriculum specialists and others who have been working on hate crime related 
issues locally, statewide or nationally. On September 1 2, 2000, the Task Force met to discuss final drafts 
of its statewide action plan and organized working groups to implement specific Task Force proposals 
from the action plan. 



OUTREACH, EDUCATION & TRAINING EFFORTS 

The Division has collaborated with other governmental and non-governmental agencies and organizations 
to respond effectively to hate crimes in the Commonwealth. Division staffhave actively engaged in efforts 
to address hate crimes through outreach to, and the training and education of law enforcement, civil rights 
organizations and members of various communities in Massachusetts on hate crime identification, response, 
investigation, and prevention. 

During this year, division staff participated in a multi-departmental hate crime training for various police 
departments, a hate crime training sponsored by the Norfolk District Attorney's Office, hate crime training 
for state police officers, a presentation on civil rights issues to students and administrators at Wheaton 
College, and an in-service training on hate crimes for the Springfield Police Academy. Members of the 
division also participated in the Greater Boston Civil Rights Coalition; the Charlestown Task Force; Boston 



144 



PUBLIC PROTECTION BUREAU CIVIL RIGHTS CIVIL LIBERTIES 



National Voices, a coalition of civil rights groups addressing hate crimes and bias incidents); and ADL's 
"No Place for Hate" Initiative. 

CIVIL RIGHTS & POLICE 



In a collaborative effort to promote civil rights, assist police departments and provide departments 
with technical assistance, the Division offers and provides civil rights training to law enforcement covering 
issues of hate crimes identification, response and prosecution, civil liability, sexual harassment and racial 
and cultural awareness. 

The Division investigates allegations of police misconduct. Police departments also regularly consult 
with the Division for assistance on internal civil rights investigations. The Division has closely worked with 
departments to ensure that appropriate remedial steps are taken when credible evidence is found which 
substantiates civil rights complaints. 

• Racial Profiling The Division has played an increasingly important role in addressing concerns 
of improper and illegal motor vehicle stops and street encounters including, but not limited to racial 
profiling. This is an issue where law enforcement nationally as well as in the Commonwealth is 
increasingly being requested to play an affirmative role. Members of the division helped organize, 
in conjunction with advice from law enforcement leaders, the Attorney General's Working Group 
on Racial Profiling to develop uniform approach to address racial profiling. This Working Group, 
composed of law enforcement leaders and community activists, held its first meeting in April, 
2001 . Members of the division also participated in the Executive Office of Public Safety Working 
Group on Racial Profiling and in the Massachusetts Minority Police Officers' Association racial 
profiling conference. (Leone, Cole, Moore, Merachnik, Medvedow, Patino) 

HOUSING DISCRIMINATION 



The Division enforces 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. 

Through training programs and prosecuting housing discrimination cases, the Division works to modify 
landlord and i ealtor 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. 



145 



PUBLIC PROTECTION BUREAU CIVIL RIGHTS CIVIL LIBERTIES 



• Commonwealth v. Everett Housing Authority On August 24, 2000, the Middlesex 
Superior Court approved the settlement of this housing discrimination case based on disability 
filed on August 27, 1998, in which the defendant denied the complainant the right to keep her 
companion animal. The settlement required the EHA to modify its reasonable accommodation 
policies and ensure that companion animals are allowed as a reasonable accommodation. 
(Rodriguez) 

• Commonwealth v. Investments Limited The settlement reached in this housing case 
based on allegations of discrimination on the basis of national origin and ancestry, included 
$4,400 for complainants and a three-year injunction by consent. (Gilfix) 

• Commonwealth & Katherine MacGregor v. Baruch Corey A final judgment was 
entered on September 1 8, 2000, in this housing discrimination case filed in Middlesex Superior 
Court on December 5, 1997, based on Section 8, family status and a violation of the lead paint 
statute. The complainant received damages of $ 1 0,000; the court ordered broad injunctive 
relief, including inspection and de-leading of units; and the defendants agreed to host a training 
seminar for real estate agents and landlords on fair housing laws. (Terrell, Ward) 

• Commonwealth v. Trinity Housing Associates, et al. A Final Judgment was entered 
on August 24, 2000, in this case filed on November 16, 1998, against the owner, management 
company, and a limited partner that owns the subsidized housing complex, Trinity Village, for 
allegedly failing to make reasonable accommodation for an applicant's mental/emotional 
disability. The case settled for $5,000, with injunctive relief. (Terrell, Ward) 

• Comm. v. Michael & Alice Gulbankian On February 7, 2001 , the court entered final 
judgment by consent providing for permanent prohibitory injunctive relief and affirmative 
injunctive relief for period of five years. In addition, the complainant and defendants entered into 
a separate agreement for a monetary settlement of an undisclosed amount. (Correa) 

EMPLOYMENT DISCRIMINATION 



Since 1996, the Employment Discrimination Project has focused its efforts on addressing allegations 
of systemic employment discrimination practices in the Commonwealth. 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, 



146 



PUBLIC PROTECTION BUREAU CIVIL RIGHTS CIVIL LIBERTIES 



affecting substantial numbers of Massachusetts employees. Members of the division also participated in 
employment related education, training and outreach efforts. 

• Massachusetts Bay Transportation Authority In February, 1 997, the Division entered 
into an historic, court enforceable agreement with the MBTA and twenty-six of twenty-seven of 
its labor unions to end years of alleged violations of state and federal fair employment laws and 
to protect employees from future discrimination, harassment and retaliatory conduct. The 
comprehensive agreement mandated significant changes in policies and practices at the MBTA, 
and required new systems to govern the identification, investigation, monitoring and response to 
allegations of discrimination, harassment and retaliation at the MBTA. The Division continued 
its extensive and ongoing monitoring of the MBTA's compliance with the Agreement, responded 
to complaints from MBTA employees, engaged in special reviews to determine if there was 
compliance with particular provisions of the Agreement, and investigated possible breaches. 
(Cole,Ziehl,Correa) 

• Commonwealth v. Bull HN Information Systems, Inc. (United States District Court) 
The Division's Employment Discrimination Project, along with the Equal Employment 
Opportunity Commission (EEOC), continued to actively litigate the age discrimination issues in 
Commonwealth v. Bull HN Information Systems, Inc., filed in Fiscal Year 1 997, in the United 
States District Court. This precedent-setting age discrimination in employment case alleged that 
Bull HN, a large electronics company, violated the federal Older Workers' Benefits Protection 
Act ("OWBPA") and the federal Age Discrimination in Employment Act ("ADEA"), when 
laying off its workers aged forty and older. (Ziehl, Cole) 

• Commonwealth v. Bull HN Information Systems, Inc. (Massachusetts Commission 
Against Discrimination) The Division continued to monitor compliance with the settlement 
agreement executed by the parties and approved by the Massachusetts Commission Against 
Discrimination in January 1 999, involving a challenge to Bull NH's employment practices under 
state law. Under the settlement agreement, Bull HN agreed to establish or revise policies and 
procedures to ensure the protection of their employees from age discrimination. The Agreement 
remains in effect for four years, and policies and procedures for five years. (Ziehl, Cole) 

EDUCATIONAL EQUITY 

• Comfort v. Lynn School Committee, et al. The division, with the Administrative Law 
Division, continued to actively litigate this case, in which the Commonwealth joined the Lynn 



147 



PUBLIC PROTECTION BUREAU CIVIL RIGHTS CIVIL LIBERTIES 



School Committee to defend the constitutionality of the state's Racial Imbalance Law and the 
City of Lynn's school choice plan. (Cole, Yogman, Hitt) 

• Bollen v. Lynn School Department On March 23, 2001, six new plaintiffs served a 
complaint and Motion for Preliminary Injunction on new state defendants, seeking a court order 
assigning four of six plaintiffs' children to school of their choice. The case raises the same issues 
and is companion case to Comfort v. Lynn School Committee. (Cole, Yogman, Terrell, 
Bowman, Chand) 

REPRODUCTIVE CHOICE 



The Division works to safeguard the right to reproductive choice, including outreach to police 
departments in jurisdictions containing a free-standing reproductive health care clinic to offer training on 
the buffer zone law, G.L. 266, § 1 20'/ 2 . 

• McGuire v. Reilly The division defended against this complaint filed in federal district 
court challenging the constitutionality of the state buffer zone law, G.L. 266, § 120!/ 2 . Although 
the District Court (Harrington, J.) ruled on November 20, 2000, to enjoin the statute pending a 
hearing on the merits, the division appealed the ruling and the First Circuit Court of Appeals 
issued a stay of the District Court's order on December 20, 2000. The division then filed its 
appellate brief (January 22, 2001 ) and reply brief (March 7, 200 1 ) with the Court of Appeals. 
(Correa, Simms, Frumkin) 

PUBLIC ACCOMMODATIONS 



The Division enforces the laws ensuring the right of the citizens of the Commonwealth to equal access 
to places of public accommodation, regardless of race, color, religion, national origin, ethnic background, 
gender, sexual orientation or disability. 

• Commonwealth v. Haverhill Country Club On July 10, 2000, the Division asked the 
Superior Court to hold Haverhill Country Club in contempt for violating the court's January, 
2000, injunction ordering the Club to cease discriminating against its female members and to 
rewrite its bylaws and policies so that women would not be discriminated against in rights, 
benefits, services or privileges at the Club. The court ordered a limited evidentiary hearing on 
the contempt charge with respect to the Club's provision of equal opportunities for women to 
golf during men only tournaments. On March 7, 200 1 , the court found the Club in contempt for 



148 



PUBLIC PROTECTION BUREAU CIVIL RIGHTS CIVIL LIBERTIES 



denying women equal access and for not allowing women members to bring a guest twice in any 
month that male members are allowed to do because of the male members participation in male 
only tournaments. The Court ordered the Club to correct this violation of its injunction. 
(Rodriguez, Szafarowicz) 

• The Children 's Place After an investigation with the MC AD of this national children's 
clothing store chain (with approximately 1 5 stores throughout the state) for public 
accommodations violations, employment discrimination and unfair trade practices arising from 
racially discriminatory customer and employment practices, the division entered a consent 
decree with the company on December 23, 2000. The decree contained remedies that will 
result in immediate culture change in all Massachusetts Children's Place retail outlets, and the 
company agreed to pay $ 1 00,000 for an independent audit of customer service and employee 
complaint procedures, hiring and promotion practices, training, and policies and procedures 
related to race discrimination and to donate $50,000 worth of clothing to Boys & Girls Clubs 
throughout the state. The division continued to monitor the implementation of the consent 
decree. (Ziehl, Terrell, Dale) 

DISABILITY RIGHTS 



The Disability Rights Project of the Civil Rights Division makes extensive efforts to protect the rights of 
individuals with disabilities throughout the Commonwealth, including litigation, assistance for individuals, 
training, publications (Commonly Asked Questions: Employment Rights of Individuals with Disabilities 
and Fair Housing Rights of Individuals with Disabilities), and speaking engagements. 

• Ensuring Equal Access to Private Businesses In its ongoing effort to make retail and department 
stores more accessible for customers with disabilities, the Disability Rights Project (Rodriguez, 
Tufts), in coordination with the Massachusetts Office on Disabilities, surveyed twenty-one CVS 
stores in Massachusetts, documenting violations of turning radius and aisle width requirements. 
The Disability Rights Project entered an Assurance of Discontinuance with CVS Stores to remedy 
the violations in April, 2001 . 

• Access to Schools for People with Disabilities The Disability Rights Project also drafted an 
advisory explaining the requirements of the Americans with Disabilities Act for access for individuals 
with disabilities in the design and construction of new schools. The Project director met with the 
Department of Education to discuss current school construction projects and protocols to ensure 
access compliance in any new schools that may be constructed. 



149 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 



• Website Forum he Disability Rights Project organized a successful forum in June, 2001, at 
Suffolk Law School to address Web site accessibility for persons with disabilities. (Tufts, Rodriguez) 

CIVIL RIGHTS INITIATIVES WITH THE NATIONAL ASSOCIATION OF 
ATTORNEYS GENERAL 

The Division Chief continues to serve as national Chair of the National Association of Attorneys 
General's ("NAAG") Civil Rights Working Group consisting of representatives of state Attorneys General 
offices from throughout the country working to enhance the cooperative relationship between the states 
and the U.S. Department of Justice in civil rights enforcement. 

Division staff continued to participate in the Working Group's task forces to formulate and implement 
joint enforcement initiatives in five substantial areas: bias-related crimes (Cole); housing discrimination 
(Terrell, Patino); mortgage lending discrimination (Cole, Kogut); discrimination in public accommodations 
based on disabilities (Rodriguez); and employment discrimination (Ziehl). 

Members of the Civil Rights & Civil Liberties Division included Richard Cole, Chief, Patricia Correa; 
Suzanne Glick Gilfix; Richard Gordon; Jennifer Keating; Caroline Lukasiewicz; Jacinta Ma; Maria 
MacKenzie; Brian Monahan; M. Julie Patino; Anthony Rodriguez; Louisa Terrell; Susan Tufts; Amanda 
Ward; and Catherine Ziehl. 



CONSUMER PROTECTION & ANTITRUST DIVISION 

The Consumer Protection and Antitrust Division is an educational resource for consumers and businesses 
in the Commonwealth, and a strong defender of consumer rights. The Division, through the Consumer 
Complaint and Information Section and the Attorney General's grant-funded networks of nineteen Local 
Consumer Programs and eight Face-to-Face Mediation programs, resolves thousands of consumer 
complaints each year. In cases where mediation is unsuccessful, or where a pattern of unfair or deceptive 
acts or practices is revealed, the Division takes legal action on behalf of consumers who have been adversely 
affected by this unlawful conduct. The Division also studies trends in the marketplace in consumer protection 
and competition, files cases involving statewide or nationwide practices that affect Massachusetts consumers, 
and proposes legislation and promulgates consumer protection regulations to address unfair or deceptive 
business conduct. 



150 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 



SIGNIFICANT CASE SUMMARIES 

• Commonwealth v. Toysmart (United States Bankruptcy Court for the Eastern District of 
Massachusetts) Toysmart, an internet retailer located in Massachusetts, filed for protection and 
then liquidation in United States Bankruptcy court. One of the company's major assets, offered 
for sale by the trustee, was the customer data gathered as consumers placed orders on the 
Toysmart Web site. Toysmart had represented to consumers in the privacy notice posted on its 
Web site that the company considered their information confidential, and promised that this data 
would not be given or sold to anyone outside the company. In spite of this announced policy, 
Toysmart determined to sell this data as a way of raising money for its creditors. Massachusetts 
headed a national effort on behalf of nearly every state to file objections to Toysmart's motions 
to sell its customer data, and negotiated a settlement that required BVIG, a division of Disney, 
to pay Toysmart to destroy the list of customer information. 

• Commonwealth v. First Alliance Mortgage Company (Suffolk Superior Court; United 
States Bankruptcy Court, California) The Commonwealth initially filed its case against this sub- 
prime lender in Suffolk Superior court in 1998. The Commonwealth alleged that First Alliance 
engaged in unfair or deceptive practices in the granting of mortgage loans, including charging 
consumers excessive fees and "points" in mortgage re-financings. The Attorney General 
obtained a preliminary injunction against the company, which caused it to cease doing business 
in Massachusetts. A number of other states brought cases with similar allegations, and in 2000, 
First Alliance filed for bankruptcy protection in United States Bankruptcy Court in California. 
The Attorney General continued to prosecute his case against First Alliance, seeking restitution 
for Massachusetts consumers and penalties against the company. 

• Commonwealth v. Dean's Furniture (Suffolk Superior Court) Dean's Furniture held a 
"removal" or store closing sale at one of its Massachusetts locations, employing Planned 
Furniture Promotions, an out-of-state "liquidator" to conduct the sale. The Commonwealth 
sued Deans and Planned Furniture Promotions, alleging that prices were inflated so that they 
could be artificially reduced for the sale, and that merchandise was brought in simply for the 
sale, in violation of state law. The Commonwealth obtained a Preliminary Injunction, shutting 
down the illegal sale, and prosecuted its lawsuit seeking restitution for consumers, civil penalties, 
attorneys' fees and costs of investigating and prosecuting the action. 

• Commonwealth v. Allied Lighting (Suffolk Superior Court) This matter was originally 
filed in Bristol Superior Court, and the defendant removed to Federal District Court, where 



151 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 



CPAD attorneys successfully argued for remand back to state court. The case was then moved 
to Suffolk Superior Court. The Commonwealth alleged violations of the Consumer Protection 
Act, G.L. c.93 A against this telemarketer for deceptive practices in the sale of its office 
products, fluorescent light bulbs sold at up to 20 times their normal retail price. The 
Commonwealth alleged that Allied solicited low level employees in target companies with 
deceptive sales pitches, and when companies detected the unfair or deceptive overpricing in 
reviewing invoices, would either refuse return of the bulbs, or would charge excessive 
"restocking" fees ranging from 25-50% of the shipment price. 

• Commonwealth v. Microsoft (D.C. Circuit Court) In this multi-state case initiated by 
Massachusetts and Texas against this software company for alleged violation of antitrust laws, 
including the Sherman Act, the D.C. Circuit unanimously found that Microsoft had violated the 
antitrust laws by abusing its monopoly power. The court also noted that the remedy needed in 
this matter should be one that restores competition and prevents a reoccurrence of Microsoft's 
abusive practices. 

• Contact Lens Litigation The Commonwealth, along with thirty other states and a private 
consumer class, brought an antitrust action against a number of contact lens manufacturers and 
the American Optometric Association. The lawsuits alleged that retail prices of disposable 
contact lenses were too high because the defendant manufacturers agreed with the American 
Optometric Association, in violation of the antitrust laws, that lenses would be available only 
from eye care professionals, retail optical stores and mass merchandisers, rather than from mail 
order companies and pharmacies. Under the terms of the settlement, consumers who bought 
replacement contact lenses from Johnson & Johnson, Bausch and Lomb or CIB A Vision since 
January 1, 1988 were eligible to receive rebates. 

• Commonwealth v. Mylan (U.S. District Court, Washington, D.C.) Attorney General 
Reilly joined 50 other attorneys general and the Federal Trade Commission in finalizing a 
national S 1 00 million settlement with pharmaceutical company Mylan Laboratories of 
Pittsburgh, which had been accused by the settling Attorneys General and FTC of leading a 
price-fixing and monopolization scheme that increased the cost of two drugs used to treat 
Alzheimer's disease and other ailments by more than two thousand percent. The company also 
agreed to include restrictions in future agreements with suppliers to restore a competitive 
balance in the pharmaceutical market, to reimburse state health care programs damaged by the 
price increases and to reimburse the states for legal and investigative costs. Still pending was a 
plan to provide restitution to consumers nationwide. 



S2 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 



• Commonwealth v. Sitelab (Suffolk Superior Court) Attorneys from the Consumer 
Protection and Antitrust Division and Environmental Protection Division, along with the 
Department of Environmental Protection filed suit against this New Hampshire company for 
allegedly unfair and deceptive advertising in its sale of test kits and laboratory services to 
perform soil and water analysis to determine the presence of petroleum compounds. The suit 
alleged that Sitelab displayed "references" on its Web site, from corporations, universities and 
environmental agencies which purported to support their product. The Commonwealth alleged 
that its investigation revealed that the majority of "references" neither used nor supported the 
product. The company agreed to pay a $5000 civil penalty for its use of the allegedly deceptive 
advertising. 

• Commonwealth v. Shirley Manor, Inc. D/b/a Greenwood Terrace Nursing Home 

(Suffolk Superior Court) The Attorney General filed a petition for a temporary receiver on 
behalf of the Department of Public Health to operate the nursing home in Brockton, alleging 
jeopardy to patient care. A receiver was appointed, and the residents were transferred. The 
defendants filed for bankruptcy protection, and were defaulted for failure to answer the 
Complaint. The Commonwealth obtained a judgment for penalties and costs in the sum of 
$1,089,623. 

• Commonwealth v. Horizon/Greenery Facilities (Suffolk Superior Court) The 
Commonwealth commenced suit in 1 998 against the defendants, alleging unfair and deceptive 
practices including the failure to provide adequate nursing care to brain-injured residents of 
certain nursing home facilities. The Commonwealth continued to strongly litigate this matter 
throughout this Fiscal Year. 

• Commonwealth v. Cape Canaveral Cruise Line Tour & Travel, Inc., and 
Promotional Travel, Inc. (Suffolk Superior Court) The Commonwealth settled with these 
two Florida based travel companies, who allegedly misled consumers while marketing then- 
Florida vacation and Bahamas cruise packages. The settlements entitled consumers who 
purchased a travel package from either company since January 1 997, and who had not yet 
taken their trip to a refund. The Attorney General's settlement was part of a multi-state action 
taken by fourteen states, alleging that the companies misrepresented that their trips were a "free 
trip," won by the consumer at trade or similar events, without disclosing that the trips involved 
taking part in a time-share tour and sales presentation, excluded airfare, and cost the consumer 
$300 to $400. 



153 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 

• Tobacco (United States Supreme Court) In light of the Supreme Court's finding that 
certain of the Attorney General's regulations restricting tobacco advertising near schools and 
playgrounds were pre-empted by federal law, Attorney General Tom Reilly vowed to continue 
the fight to protect children by asking Congress to change the Federal Cigarette Labeling and 
Advertising law. 

• Guns Division attorneys engaged in a wide-ranging enforcement investigation to ensure 
compliance with the Attorney General's handgun regulations. In the investigation, the Attorney 
General's office inspected records and conducted undercover buys of handguns in an effort to 
review gun dealership practices. The investigation revealed that most dealers doing business in 
Massachusetts are complying with the safety regulations. Three gun dealers, Dave's Sporting 
Goods in Pittsfield, Jurek Brothers in Greenfield, and Seasons Firearms in Woburn, without 
admitting any wrongdoing, entered into agreements with the Attorney General's office, filed in 
Suffolk Superior Court. The agreements required the three gun dealers not to sell some semi- 
automatic weapons manufactured on or after October 21,1 998, without first obtaining a written 
certification from the manufacturer or wholesaler that the gun complies with the Attorney 
General's regulations. 

• Nine West (U.S. District Court, N.Y.) This matter was a multi-state investigation of this 
women's shoe company for alleged antitrust violations, including an unlawful agreement to fix, 
maintain or stabilize resale prices of Nine West products resulted in a settlement agreement with 
cypres restitution of $30.5 million for use in the participating states. This agreement resulted in 
the payment of approximately $720,000 to programs benefiting women in Massachusetts. 

• Publisher's Clearing House (Suffolk Superior Court) The Commonwealth, along with 
several other states, took part in a multi-state investigation of this national magazine vendor for 
its allegedly deceptive practices in offering consumers millions of dollars in prizes for their 
sweepstakes entries. The states alleged that mailings and other advertising by PCH did not 
clearly inform consumers that their chances of winning were not increased by ordering 
magazines, and that consumers were misled by "prize announcements" directed to them into 
purchasing additional magazines. After settling with a number of states, PCH refused to accede 
to additional demands by the non-settling states, but finally entered into an Assurance of 
Voluntary Compliance that resulted in extensive injunctive relief and $ 1 9 million in consumer 
restitution, with approximately $800,000 for Massachusetts consumers. 



154 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 



OUTREACH &: EDUCATION EFFORTS 

Manufactured Housing The Division published The Attorney General's Guide to 
Manufactured Housing Community Law, and continued to train local officials, consumers, and 
in-house staff in the manufactured housing law and model rules, and continued to distribute the 
Manufactured Housing Community Guide throughout the state. Regional conferences were held 
for local officials, and CPAD attorneys and paralegals attended the community owner's trade 
association meeting to discuss the Guide and the benefits to the communities of adopting the 
Model Rules. 

Elder Issues CPAD attorneys adddressed the Department of Justice's national conference on 
Elder Victimization, speaking on the use of consumer protection laws to protect elders against 
nursing home abuse. CPAD also continued to focus educational efforts on home improvement 
contractor issues, telemarketing fraud and financial exploitation at local presentations to elders 
throughout the state. 

Guns CPAD attorneys spoke at a forum at Suffolk Law school on gun issues, taught a class at the 
New England School of Law regarding the gun regulations, and published an article in the Yale 
Journal on Regulation regarding use of state unfair or deceptive acts or practices statutes to address 
product safety issues. 

Children's Issues Mediation services staff collaborated with the Civil Rights Division and the 
Community Based Justice Bureau to develop Hate Crimes Training for schools. CPAD attorneys 
planned and presented a seminar for teens on consumer protection issues, including telemarketing 
scams, obtaining and managing credit, obtaining cellular phone service, and a discussion of tobacco 
advertising. 

Consumer Credit Issues/Predatory Lending CPAD attorneys planned and conducted a 
conference on predatory lending with the National Consumer Law Center, educating lawyers 
across the state on the issues they should look for in approaching such cases. CPAD attorneys 
also gave a presentation on predatory lending at a meeting held by the Boston Community 
Development Corporation and Housing Advocates meeting on predatory lending. 

Privacy CPAD attorneys planned and conducted a training for consumer professionals in 
coordination with the Federal Reserve Bank for National Consumer Protection Week on the issue 
of privacy, Regulation P and the Gramm-Leach-Bliley law. 



155 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 



• Internet CPAD attorneys worked on planning and presenting a conference at Harvard Law 
School with the National Association of Attorneys General on new and emerging internet law and 
enforcement. CPAD attorneys also conducted an Identity Fraud consumer education initiative 
with the Massachusetts Bankers Association, and published a brochure entitled Attorney General's 
Consumer Guide to the Internet, as well as addressing a number of consumer groups on issues 
related to high tech fraud over the internet. 

MEDIATION SERVICES DIVISION 

STUDENT CONFLICT RESOLUTION EXPERTS 

The Student Conflict Resolution Experts program (SCORE) is a school-based program, founded in 
1989, that uses trained student mediators to resolve violent and potentially violent conflict among peers. 

In Fiscal Year 2001, the Attorney General awarded $430,000 to twenty-five schools across 
Massachusetts. Among the communities participating in the SCORE program were Boston, Dartmouth, 
Fall River, Greenfield, Holyoke, Lowell, Lynn, Maiden, Medford, Quincy, Pittsfield, Somerville, Springfield, 
Taunton, Wakefield (located in a regional high school which serves twelve communities north of Boston), 
and Worcester. Student mediators in SCORE programs mediated 2,652 conflicts involving 6,501 youth; 
in 97% of the cases these conflicts were resolved through the use of peer mediation. The conflicts included 
situations involving physical fights, harassment, name calling, stealing, threats, bullying, property damage, 
and rumors. 

In addition to the financial awards, Division staff maintained close contact with participating schools 
through grant monitoring activities and by proffering technical assistance. Division staff frequently served 
as training faculty for student mediator training sessions and they also provided advanced training and 
support for adult mediation program coordinators. 

CONFLICT INTERVENTION TEAM 



The Conflict Intervention Team (CIT), led by the Attorney General 's Office, is a collaborative project 
among the Attorney General, the Massachusetts Department of Education, and the Massachusetts 
Association of Mediation Programs and Practitioners. Composed of a network of specially-trained 
community mediators, CIT provides mediation services, on a short-term basis, to schools experiencing 
large-scale conflicts. Although there were no instances this year when the CIT was dispatched to a 



156 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 



Massachusetts school, MSD staff consulted with eight schools in Massachusetts about the possible 
application of CIT to incidents of serious violence and intolerance. Of these eight schools, seven were high 
schools, one was a middle school, three were located in the Boston area, one in southeastern Massachusetts, 
one in Central Massachusetts, and three in western Massachusetts. In all eight consultations, school 
officials indicated that the conflicts were isolated in nature and did not require the services of CIT. 

Division staff also participated in efforts to promote and replicate the CIT model. In September of 
2000, Division staff, in collaboration with representatives of the Massachusetts Department of Education 
and the Holyoke Public Schools, presented Conflict Intervention Teams: An Effective Response to 
Large-Scale Racial Conflict in Schools, a workshop at the Society of Professionals in Dispute Resolution 
conference in Albuquerque, New Mexico. In October, 2000, MSD staff traveled to Salt Lake City, Utah 
to provide a CIT replication training to community mediators in that community. This training, a component 
of the CIT work plan funded by a grant from the Hewlett Foundation, was a resounding success and 
resulted in the establishment of the first CIT program in the State of Utah. 

FACE-TO-FACE MEDIATION PROGRAM 



The Face-to-Face Mediation Program (FTF), established in 1983 to provide mediation services for 
the resolution of consumer and landlord/tenant disputes, offers disputants a convenient, non-adversarial 
alternative to court action. In Fiscal Year 2001, the Attorney General awarded grants, totaling $3 1 5,000, 
to nine community mediation programs across Massachusetts, including programs in Brockton, Fitchburg, 
Greenfield, Haverhill, Hyannis, Lowell, Somerville, Springfield, and Worcester. 

This $3 1 5,000 investment in mediation resulted in the return of $ 1 , 1 30, 1 1 2.30 in cash and $ 1 79,32 1 .25 
in non-cash value to Massachusetts consumers. The nine community programs mediated 2,383 disputes 
involving auto repairs, home improvement, landlord/tenant issues, debt collection, and broken contracts. 

Division staffalso maintained close contact with participating programs through grant monitoring activities 
and technical assistance. Throughout the Fiscal Year, Division staff frequently served as training faculty for 
basic training sessions for new volunteer mediators, provided advanced training for experienced community 
mediators, oriented new program coordinators, and provided regional forums for participating programs 
to share strategies and resources. 



157 



PUBLIC PROTECTION BUREAU CONSUMER PROTECTION ANTITRUST 



OUTREACH &: TRAINING 

Mediation Services staff participated in a wide range of outreach and training events concerning the 
application of mediation as a means to prevent violence in schools and communities: 

• November, 2000 - Conflict Intervention Team presentation at the Vocational Teachers Association 
of Connecticut annual conference. 

• November 2000 and February 2001 - A Prerequisite for Safe Schools: Protecting Students 
from Hate and Harassment and Hate Crimes, two in a series of statewide conferences designed 
for teachers, school administrators, and law enforcement professionals. Over 350 people attended 
these two conferences, the result of cross-bureau collaboration between the Public Protection 
Bureau and the Community-Based Justice Bureau. 

• January 2001- Orientation to community mediation in Massachusetts for the Board of Directors 
of the North Central Court Services, Inc., in Fitchburg. 

• March 200 1 - Workshop about hate crimes and harassment for students and staff at South Hadley 
High School (in coordination with the Attorney General's Western Massachusetts Office). 

• April 2001- How Community Mediation Centers Prevent Violence, a workshop at the 
Massachusetts Violence Prevention Task Force's fourth annual statewide conference. 

• May 2001 - Mediation Resources for School Counselors, a workshop at the Massachusetts 
School Counselors annual conference. 

June 2001 -2001 Peacemakers' Summit at Hampshire College. 750 student mediators from 
schools across Massachusetts attended this conference that Division staff helped plan. 

The Consumer Protection and Antitrust Division included Freda Fishman, Chief; Darla Ansell; Chris 
Arabia; Michael Atleson; Steve Bandar; DeShanta Bailey; John Botte; Andrea Breton; Jesse Caplan; 
Jack Christin; Arlie Costine-Scott; James D' Amour; Linda Danovitch; Janis DiLoreto; Jessica Ewan; 
MaryFreeley; Jennifer Galante; Brian Goodwin; Kathy Grant; Michael Heams; Michael Hering; Muriel 
Hervey; Stephanie Kahn; Glenn Kaplan; Mark Kmetz; Pam Kogut; Brenda King; Anne Lebowitz; 
Ronnie Lee; Carmen Leon; Steve Lilly- Weber; Betty Maguire; KatMargaris; Mary Marshall; Lois 
Martin; Jennifer McDonald; Marianne Meacham; Laura Michalski; David Monahan; RoryNeal; 
Mariann Nicoletti; Margaret O'Brien; Mark O'Connor; Donna Palermino; Astrid Panameno; Julie 



158 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



Papernik; Dan Reynolds; Lisa Reynolds; Judy Risch; Jessica Roberts; Betsy Sawyer; Lisa Senay; 
Patricia Siefer; Darlene Skog; Lorraine Smith; Michelle Stone; Christine Sullivan; Diane Szafarowicz; 
ErikaTarantal; James Tremble; Susan Ulrich; Joanne Wamness; Sandra Washburn; Judy Whiting; 
Geoffrey Why; Brent Williams; Chi Chi Wu; and HermenYee. 



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, hazardous and solid waste. EPD also plays a key role under the Clean State Initiative to ensure 
that the Commonwealth's own agencies abide by state and federal environmental agencies, and in doing so 
the Division may bring enforcement actions against those agencies in court where the Attorney General, in 
his enforcement discretion, deems action necessary. 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 defends lawsuits challenging the actions of state environmental agencies and the legality of state 
environmental laws. 

During Fiscal Year 200 1 , EPD handled enforcement proceedings leading to judgments requiring payments 
to the Commonwealth of $3,39 1 ,982.28. These figures are for penalties, cost recovery, and other payments 
awarded in fiscal 200 1 , whether or not actually paid in fiscal 200 1 . In Fiscal Year 200 1 , EPD received 
actual payments totaling $3,559,380.37 in penalties, cost recovery, and other payments. Other cases 
resulted in court judgments requiring private parties to undertake costly cleanups — a savings of millions of 
dollars for the Commonwealth. 

AIR POLLUTION 



• State Air Pollution Laws & Regulations EPD was active in enforcing state laws 
regarding pollution resulting from the operation and fueling of automobiles. Massachusetts is 
one of the few states that has taken advantage of Section 177 of the federal Clean Air Act, a 
provision that allows states to adopt California's stringent vehicle emission standards. EPD filed 
enforcement actions against several automobile dealerships (128 Sales, Baystate Motors and RJ 
Foley, Inc.) designed to enforce these low emission standards. 



159 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



EPD was also active in enforcing and defending a challenge by three industry associations to the 
Massachusetts' Stage II Vapor Recovery Standards. Stage II vapor recovery systems are used 
to control releases of gasoline vapors when vehicles are refueled. They require gas stations to 
install and maintain equipment to capture vapors that would otherwise escape to the atmosphere 
and contribute to ozone and smog formation. In addition, a number of these substances (e.g. 
benzene, toluene) are toxic. At the same time, EPD initiated negotiations with Mobil Oil 
Corporation over alleged violations of the Stage II Vapor Recovery Standards at dozens of 
Mobil stations across the State. 

EPD defended Massachusetts' stringent standards for mercury emissions from municipal waste 
combusters in a case filed by the waste combustor industry led by Integrated Waste Services 
Association. Through extensive negotiations, EPD was able to reach an agreement with 
industry settling the case. Under the agreement, DEP's standards for mercury emissions remain 
in effect, but DEP must reopen rulemaking to propose changes to the final rule it issued 
implementing the standards. 

The Attorney General also supported DEP's adoption of standards to reduce emissions of 
S02, NOx, and C02 from six Massachusetts oil and coal plants whose emissions are currently 
"grandfathered" under federal and state law. On March 27, 200 1 , the Attorney General 
formally urged Governor Cellucci to promulgate DEP's final regulations, an action taken by 
Acting Governor Swift soon after she took office several months later. 

• National & Regional Air Pollution Issues EPD continued to play a major role in 
national and regional air pollution issues. The most important national air pollution issue litigated 
this year concerned industry's challenge to EPA's revised standards for ozone and particular 
matter, promulgated in 1 997. Massachusetts was one of two states (the other was New Jersey) 
to intervene on behalf of EPA in litigation before the U.S. Supreme Court to defend these 
standards. On February 27, 2001, the United States Supreme Court rejected, by 9 - 0, 
industry's argument that EPA's authority to issue new standards exceeded the agency's power 
under the Constitution. The High Court also rejected industry's argument that EPA must temper 
its protection of public health by taking into consideration, at the standard-setting stage, the 
costs of implementing the standards. Following this win at the Supreme Court, Massachusetts 
continued to defend the standards before the United States Court of Appeals for the District of 
Columbia Circuit following the remand of the case. The proceeding before the U.S. Supreme 
Court concerned a constitutional challenge to the standards; the issues before the D.C. Circuit 
concerned industry's argument that the standards are arbitrary and capricious under the federal 
Administrative Procedure Act. 



160 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



EPD was instrumental in obtaining a court ruling that should reduce emissions from Midwestern 
and Southern power plants that contribute pollution to the State airshed. In American Power 
Co. v. U.S. EPA ("Section 126 litigation"), Massachusetts intervened in federal court to defend 
EPA's decision to grant a petition, under section 1 26 of the federal Clean Air Act, to require 
EPA to impose emissions reductions upon power plants located in midwestern states. In a May 
15, 200 1 ruling, the D.C. Circuit largely upheld EPA's rule requiring emissions reductions by 
Midwestern and Southeastern power plants, but ruled in favor of certain plant-specific claims, 
and also directed EPA to explain an element of its decision on remedy. 

In State of Michigan v. U.S. EPA (the "NOx SIP Call" litigation), a case related to the Section 
1 26 petition litigation, Massachusetts intervened to defend EPA's decision to require twenty-two 
states to amend their air state implementation plans (SIPs) to include mandatory reductions in 
NOX from in-state power plants. In early March, the Supreme Court let stand the decision of 
the US Court of Appeals for the District of Columbia Circuit upholding EPA's "NOx SIP Call 
Rule." That rule, which EPA adopted in 1998, required 22 Eastern States and the District of 
Columbia to reduce emissions of nitrogen oxides (NOx) within their borders, so as to reduce 
the movement ("transport") of NOx to downwind areas, primarily in the Northeastern States. 
On June 8, 2001, in an appeal from EPA's "Technical Amendments" to the Rule, industry 
persuaded the D.C. Circuit to hear challenges to the growth factors used in the SIP Call, even 
though these same claims could and should have been raised in the main case. The result was a 
court decision requiring EPA to justify the growth factors used in calculating state-by-state 
emission factors. 

Also on the national stage, EPD maintained its role as one of the leading states in a multi-state 
and EPA enforcement action against large Ohio-based power company for upgrading plants 
without installing Best Available Control Technology as required by the New Source Review 
("NSR") provisions of the federal Clean Air Act. During Fiscal Year 2001 , discovery in 
American Electric Power continued. In the meantime, in May 200 1 , President Bush issued his 
National Energy Policy which called for a 90 day moratorium on the Justice Department's 
litigation efforts in NSR enforcement cases and for EPA to review its own interpretation of 
NSR. On June 1 7, 2001 , EPA held a hearing in Boston on its interpretation of the NSR 
requirement. At this hearing, Attorney General Reilly testified in support of EPA's current 
interpretation of NSR. 

Also related to federal clean air act standards, EPD continued to press Massachusetts' interest 
in protective standards for sulfur dioxide (S02). In 1999, Attorney General Reilly, together 
with Attorney Generals of other northeastern states, petitioned EPA to issue secondary 



161 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



standards for S02 under the federal Clean Air Act. As opposed to primary standards that 
protect public health (such as the ozone and particulate N AAQs), secondary standards protect 
public "welfare" such as the ecosystem. In the petition, Massachusetts argued that EPA should 
establish secondary standards that reduce acid rain. During Fiscal Year 2001 , EPD sent EPA a 
follow-up letter in further support of the State's petition. The purpose of the follow-up letter was 
to bring to EPA's attention the recent peer-reviewed scientific study on acid rain showing that 
acid rain levels continue to be high in the northeast and hence demonstrating that secondary 
standards for S02 are needed to bring about the recovery of acidified lakes and streams. 

One of the Clinton Administration's last major environmental actions was to issue regulations to 
reduce heavy-duty engine and vehicle pollution. The rule regulates NOx emissions from diesel 
engines at 0.2 g/bhp-hr and particulate matter at .01 g/bhp-hr. These standards will reduce 
NOx and PM by 95 percent respectively in heavy-duty engines and vehicles. Several industry 
organizations challenged EPA's Heavy-Duty Engine and Vehicle Standards and Highway Diesel 
Fuel Sulfur Control Requirements (65 Fed. Reg. 35429) in the D.C. Circuit, including the 
Engine Manufacturers Assn, the American Petroleum Institute, and the National Petrochemical 
& Refiners Assn. Because of the significance of diesel emissions in degrading the air quality of 
many Massachusetts neighborhoods, EPD intervened in support of EPA's rule in the U.S. Court 
of Appeals for the D.C. Circuit. 

ENERGY 



Promotion of energy conservation and the increased use of renewable power is a time-tested means of 
reducing energy demand, reducing rates, reducing pollution and creating jobs. In mid-March the EPD 
Acting Chief testified before the Joint Energy Committee in support of a House bill to continue, for another 
five years, the current funding levels for energy conservation programs in Massachusetts. This legislation 
was later passed. In June 2001, EPD staff testified before the U.S. Department of Energy on DOE's 
programs for energy efficiency and renewable power. Throughout 200 1 , EPD sought opportunities to 
emphasize the importance of energy conservation and use of renewable power to address potential power 
shortages and pollution problems from power generation. 



162 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



CREATING LIVABLE COMMUNITIES THAT ARE ENVIRONMENTALLY AND 
ECONOMICALLY ROBUST 



• Lead Paint Massachusetts has a high rate of lead poisoning among children which is due, at least 
in part, to their exposure to lead-based paint in the state's older housing stock. Luckily, 
Massachusetts also has one of the nation's strongest lead-based paint notification and abatement 
laws. The Massachusetts lead law requires the deleading or interim control of lead hazards existing 
in homes built before 1 978 where children under six are living. Owners are also required to notify 
tenants that a property has not been deleaded, regardless of whether a child under the age of six is 
living in the home. 

During Fiscal Year 200 1 , Massachusetts initiated a lead paint enforcement initiative in cooperation 
with the EPA and the U.S. Department of Housing and Urban Development ("HUD"). The 
initiative seeks to enforce the State law requiring disclosure of lead hazards and the abatement of 
lead paint with enforcement of the federal disclosure requirements. EPD's actions were part of a 
larger Public Protection Bureau initiative which will potentially include civil rights actions against 
landlords who seek to evade by lead law by refusing to rent to families with small children and 
enforcement actions against unlicensed lead abatement contractors. 

• Environmental Health and Safety in the Schools EPD participated in numerous initiatives to 
promote environmental health and safety concerns in Massachusetts' public schools, especially as 
it relates to indoor air quality. In May 200 1 , Attorney General Tom Reilly hosted the second 
meeting of the Healthy Schools Council where he has been a consistent advocate of schools 
adopting Environmental Management Systems to address their environmental compliance issues 
on an on-going basis. 

Attorney General Reilly also filed written testimony in support of the Department of Public Health's 
legislative efforts to create an Office of Indoor Air Quality and to obtain authority to address 
indoor air quality problems in schools through regulations and other measures. 

21 E ENFORCEMENT / HAZARDOUS & SOLID WASTE DISPOSAL SITE CLEAN UP 

• Cost-Recovery Actions Under G.L. c. 2 1 E, the Attorney General is charged with the responsibility 
of recovering Commonwealth funds spent cleaning up hazardous waste sites. Where possible, 
EPD enters into settlements with the parties responsible for the contamination to obtain their 



163 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



agreement to clean up the site, rather than pursuing a cost-recovery action after the state has 
stepped in to clean up the contamination. This saves the Commonwealth money upfront and 
results in the efficient administration of site cleanups. 

Fiscal Year 200 1 saw the settlement of a major 2 1 E cost-recovery matter involving Wellesley College. 
This matter, which was ultimately resolved through mediation, concerned extensive contamination of the 
upland portion of the Wellesley College campus, including portions of the shoreline of Lake Waban, a 
Great Pond, by the operation of a now-defunct paint shop. Under the terms of the settlement, Wellesley 
College agreed to pay the costs of removing the contamination from the upland portion of the site (estimated 
at approximately $28 - 30 million) and the Commonwealth agreed to contribute $ 1 .4 million to the cleanup 
of the shoreline area. 

In another major 2 1 E action, S AK Recycling (also known as the "Boston Junk" case), EPD sought 
recovery, from Boston Edison, of monies spent by DEP to cleanup the site of the Boston Convention 
Center. In this case, EPD worked closely with the Boston Municipal Convention Center Authority, a co- 
plaintiff in the case. 

The Commonwealth also initiated settlement negotiations with the City of Holyoke and the City of 
Holyoke's Electric Department and the Holyoke Water and Power Co. relative to the City's contribution 
to the costs of cleaning up contamination of a Holyoke river. 

EPD also pursued recovery of costs spent by the state many years ago to clean up coal-related wastes 
containing a compound known as ferric ferrocyanide. The so-called Mendon Road case was filed several 
years ago against Narragansett Electric for cleanup costs spent by the state which now total $8 million, 
with interest. EPA preliminarily determined that ferric ferrocyanide is a hazardous substance under the 
Comprehensive Environmental Response, Compensation and Liability Act, the federal hazardous waste 
cleanup law upon which Massachusetts' Chapter 2 1 E is based. If finalized, this determination would 
entitle Massachusetts to the $8 million currently sitting in escrow, actually releasing the money may require 
additional litigation. 

In a cost-recovery action involving 229 Main St. Limited Partnership, at issue is the State's authority to 
place a lien on property owned by a bankrupt defendant. After the Attorney General prevailed in the 
United States District Court, 229 filed an appeal to the First Circuit. 

A major multimedia enforcement case resolved this year concerned the Norwood Commerce Center. 
In this case, EPD reached an agreement with the owners of an industrial complex that they clean up the site 



1 b\ 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



(at an estimated cost of $ 1 million), pay the Commonwealth $360,000 in penalties, and contribute $1 75,000 
into an escrow account to be used for future cleanup actions if later deemed necessary. 

BROWNFIELDS 



Chapter 206 of the Acts of 1998, "An Act Relative to Environmental Cleanup and Promoting the 
Redevelopment of Contaminated Property," otherwise known as the "Massachusetts Brownfields Act," 
encourages the cleanup and redevelopment of Brownfields sites through both liability reforms and financial 
assistance. One of the liability reforms authorizes the Attorney General to enter into Brownfields Covenants 
that provide liability reliefbeyond what is otherwise available under Chapter 2 1 E. The Brownfields Covenant 
Program addresses site-specific liability concerns for complex cleanups and important redevelopment 
efforts. 

Applications for a Brownfield Covenant are assessed according to the benefits they create for local 
communities and the Commonwealth by: 1) creating new, permanent jobs; 2) resulting in affordable 
housing benefits; 3) preserving historic buildings; 4) creating or revitalizing open space; and/or 5) providing 
some other public benefit to the community in which the site is located. 

EPD also designed a number of programs to overcome some of the remaining challenges redevelopment 
efforts face by allocating funds appropriated by the Legislature to address three critical needs: 1) 
identification and creation of Brownfields Covenant opportunities for those projects for which a Covenant 
is needed to bring to fruition a redevelopment proposal that will realize significant Public Benefits; 2) 
provision of efficient and effective administrative and technical support for the program within the Office of 
Attorney General; and 3) provision of financial assistance to non-profit and public entities qualifying for 
Brownfields Covenants. 

• Brownfields Covenants Issued By the end of Fiscal Year 2001 , EPD's Brownfields Unit 
had negotiated and executed four Brownfields Covenants. In all, these Covenants will create 
approximately 520 new, permanent jobs and provide a variety of public benefits. 

• Fitchburg Redevelopment Authority (Fitchburg) The covenant involved the 
redevelopment of General Electric's former plant, a site contains approximately 14 acres and 
includes nearly 300,000 square feet of commercial space in downtown Fitchburg. Fitchburg 
Redevelopment Authority ("FRA")" intends to divide the property into industrial and office 
components to permit the sale of portions of the property either to larger users or to lease the 
property to smaller tenants. FRA hopes to bring more than 400 new jobs to the city. 



165 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



• Fulton Street Redevelopment (Newburyport) Under this covenant, a private developer, 
Fulton Street Realty Trust ("FSRT"), agreed to clean up a former electroplating facility in a 
residential area in the City of Newburyport. The M&V Electroplating Company operated the 
plant from the 1950's until 1995, when the company went into bankruptcy. The site had since 
been abandoned, trash-strewn and vandalized, and maintained a stigma of urban decay and 
economic decline for nearby residents. The developer plans to clean up and redevelop the 
38,000 square foot parcel and construct eight residential condominium units in three separate 
buildings that are consistent with the style and character of the surrounding neighborhood. This 
project will provide the following significant public benefits: demolition and removal of the 
current deteriorated industrial building, cleanup of a disposal site, construction of residential units 
in accordance with a City of Newburyport Special Permit, installation of a new sewer line, 
granite curbing and a sidewalk and even a fire hydrant. In addition, at the time of acquisition of 
the property, the City of Newburyport will be paid back real estate taxes, back sewer fees and 



• Lowell Regional Transit Authority (Lowell) In return for a Brownfields Covenant, the 
Lowell Regional Transit Authority ("LRTA") will reuse the 6.5-acre parcel, including 70,000 
square feet of office and manufacturing space, as its bus maintenance and operations center as 
part of its plan to upgrade Gallagher Intermodal Transportation Center in Lowell. LRTA intends 
to bring a total of approximately 1 20 new jobs to Lowell that would generate more than $3.8 
million a year in new payroll dollars. 

• UAE Power Corp. (Lowell) In a Covenant executed in April 2001, UAE Power Corp., 
an independent utility provider, agreed to expand operations onto 4-acre site and construct 
state-of-the-art power generating facility in heavily industrial area of Lowell. UAE Power Corp. 
will cleanup and redevelop a 4-acre parcel in a highly industrial area of Lowell. UAE Power, 
which operates a power generating facility abutting this parcel, intends to expand its operations 
and construct a state-of-the-art power generating facility through the addition of very efficient 
gas turbines to create a source of peak power. 

• Proposed Brownfields Covenants During Fiscal Year 2001, EPD received several other 
Brownfields Covenant Applications which present a host of potential additional public benefits. 
Prospective developers have approached the Attorney General with proposed projects that, 
collectively, would create over 2,500 jobs across the Commonwealth, 2 million square feet of 
commercial space, and 100 additional housing units, including significant affordable housing and 
open space opportunities. These applications are under review. 



166 



PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION 



PROTECTING CONSUMERS FROM 

EXPOSURE TO ASBESTOS, TOXICS & PESTICIDES 

Massachusetts has a longstanding commitment to reducing human exposure to harmful toxics and 
pesticides. During Fiscal Year 2001 , Massachusetts joined other states in a lawsuit against EPA in the 
D.C. Circuit for unreasonably delaying its response to a petition submitted by Massachusetts and other 
states requesting EPA introduce regulations requiring pesticide manufacturers list the so-called "inert" 
ingredients on pesticides product labels. Such ingredients can be harmful, even if technically inert. 

Attorney General Reilly also undertook a major enforcement initiative against asbestos abatement 
contractors and owners/operators of facilities where improper removal of asbestos has resulted in the 
release of asbestos into the environment. This initiative resulted in several criminal convictions obtained by 
the Attorney General's Environmental Crimes Division against unlicensed asbestos contractors. EPD 
commenced suit against several companies for violations of asbestos related regulations and posted, on the 
Attorney General's Web site, an asbestos advisory for homeowners and the public. 

NATURAL RESOURCE RECOVERY, PROTECTION & PRESERVATION 

• Massachusetts Environmental Policy Act One of the more major matters involving the 
Massachusetts Environmental Policy Act (MEPA) is recent years concerned a 1976 state court 
injunction, issued under MEPA, enjoining Massport from constructing an additional runway at 
Logan Airport. When the Executive Office of Environmental Affairs finally certified as complete 
the environmental impact report for the proposed new runway and other airport improvements, 
Massport filed its long awaited motion for relief from 1 976 injunctions prohibiting construction 
of new runways. EPD defended the Executive Office of Environmental Affairs in a suit filed by 
Massport to remove the injunction. 

In another MEPA case, Smith, et al. v. DEP, Newbury and Newburyport, EPD defended DEP 
in a suit brought by citizens on Plum Island who say the defendants are violating MEPA by 
entering binding commitments to bring water and sewer to the island before completing the 
required MEPA environmental reviews. 

• Protection of Endangered Species & Plants In WRT v. DF W, EPD defended the 
actions of the Department of Fisheries and Wildlife (DFW) implementing Massachusetts 
Endangered Species Act (MESA). The developer of a golf course in Sturbridge brought a 



167 



PUBLIC PROTECTION BUREAU INVESTIGATIONS 



declaratory judgment action challenging DFW's statutory authority to require "conservation 
permits" for habitat alteration under MESA, as well its authority to certify vernal pools. 

THE CLEAN STATE INITIATIVE 

A top priority and responsibility of the Attorney General is compliance, by all state agencies and 
authorities, with the laws and regulations of the Commonwealth. This is especially important in the 
environmental area where state agencies and authorities have significant environmental impacts. During 
Fiscal Year 200 1 , the Attorney General sought to improve state performance and, at the same time avoid 
costly litigation against or protracted negotiations with, state agencies by having state agencies police their 
own environmental compliance. The Attorney General proposed two bills, which would expand the 
Attorney General's authority to seek agency compliance with environmental laws and would require the 
Department of Administration and Finance to prepare procedures for agencies to perform environmental 
management systems to track compliance and the environmental impacts of their operations. 

Members of the Environmental Protection Division included James Milkey, Chief; Kirsten Engel, 
Acting Chief; William Pardee; James Farrell; Frederick Augenstern; Freda Boden; Edward Bohlen; 
Matthew Brock; Nicole Clark; Mary Connolly; Carolyn Edwards; Dana Gershengorn; I. Andrew 
Goldberg; Nancy (Betsy) Harper; Carol Iancu; Matthew Ireland; Eleanor Johnson; Siu Tip Lam; 
Andrew Latimer; Christine Peluso; and Danah Tench. 



INVESTIGATIONS DIVISION 

The Investigations Division, formerly known as the Civil Investigation Division, conducts investigations 
primarily for divisions within the Public Protection and Government Bureaus. In addition, the Division also 
investigates cases or matters on occasion for the Executive Bureau, or in conjunction with the Criminal 
Bureau. 

Division investigators locate and interview victims, witnesses, subjects and others; obtain and review 
documentary evidence from numerous sources including individuals, corporations, and federal, state, county 
and municipal agencies; conduct surveillance, background checks and asset checks; analyze financial 
records and perform other forensic accounting functions; and testify before grand juries and at trial. In 
some cases investigators worked closely with other state attorneys general, district attorneys, local and 
state police departments, the U. S. Attorney's Office, the U.S. Postal Inspection Service, the Federal 
Bureau of Investigation and the Federal Trade Commission. 



168 



PUBLIC PROTECTION BUREAU INVESTIGATIONS 



In Fiscal Year 2001, the Division initiated 396 investigations in the following major areas: 



CONSUMER PROTECTION & ANTITRUST 



Investigators continued to assist the office in bringing G.L. c. 93 A enforcement actions against businesses 
and individuals in major consumer areas. The Division initiated several investigations and surveys to 
determine compliance with existing consumer laws and regulations, including multi-state and nationwide 
investigations into fraudulent sweepstakes promotions and telemarketing scams. The Division also 
participated in Internet scams, the gun enforcement initiative and health care. 

• Baker & Taylor (Overcharging) Investigation into allegations that Baker and Taylor was 
misclassifying books purchased by libraries, governments and schools to avoid giving discounts 
on these books. Multi-state and federal actions were brought against this company. The 
company ultimately agreed to pay more than $ 1 5.5 million in settlements; $750,000 was paid to 
the Commonwealth. (Cascarano, Hollingsworth) 

• Allied Lighting (Telemarketing) Investigation into company allegedly shipping unwanted 
and overpriced light bulbs to businesses across the country along with exorbitant invoices. 
(Dale, Cascarano) 

• Gun Enforcement Enforcement investigation regarding compliance of handgun safety 
regulations that took effect April 3, 2000. (Russo) 

• Publisher's Clearinghouse (Sweepstakes) Investigation and location of Massachusetts 
victims in this multi-state settlement involving deceptive mailing practices. Massachusetts 
received approximately $800,000 in restitution money. (Ward, Russo, Connolly) 

CIVIL RIGHTS & CIVIL 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. The 
Division also participated in a retail sting involving allegations of racial profiling. 



169 



PUBLIC PROTECTION BUREAU INVESTIGATIONS 



• Children's Place (Racial Profiling) Undercover investigation into racial profiling by this 
national retail chain. (Dale, ID Staff, AG Staff) 

• CVS (Disabilities Violations) Undercover investigation into alleged violations of state and 
federal disability access laws. (Cascarano) 

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. 

• Three M Homes (Contamination) Financial investigation into assets of trailer home park 
owners found in civil contempt for failing to pump a septic system on a regular basis and having 
sewer and drinking water problems. (Cederholm) 

PUBLIC CHARITIES 



The Division investigated individuals associated with organizations who raised funds from the public in 
violation of Massachusetts law. In some instances, solicitors posed as law enforcement or other public 
officials or otherwise misrepresented themselves or the charity's purpose. Investigators worked with other 
law enforcement personnel in locating "couriers" who picked up donations. 

• Project Imagine (Raffles) Financial Investigation into this charity raffled home in 
Dartmouth that was in approximately $900,000 worth of secured and unsecured debt. 
(Cederholm, Cascarano, Ward) 

• Commonwealth Alliance (Deceptive Solicitations) Investigation into deceptive 
solicitations on behalf of homeless veterans by this Worcester telemarketing company. 
(Cascarano, Hollingsworth) 



170 



PUBLIC PROTECTION BUREAU INVESTIGATIONS 



REGULATED INDUSTRIES 

Investigators continued to work with attorneys in the Regulated Industries Division to review and 
investigate businesses and organizations that withheld employee contributions for health insurance premiums, 
but failed to actually purchase the health insurance coverage. Other cases investigated included unlawful 
sales practices also known as "churning," and the sale of fraudulent or costly life and health insurance 
policies. 

• Massachusetts Lobstermen's Association (Unlicensed Health Insurance) Location 
and confirmation of consumers owed restitution by this unlicensed health plan as well as 
reimbursing providers with unpaid claims. (Ward, Russo) 

BUREAU PROSECUTOR 



Investigators worked with the Bureau Prosecutor on numerous cases which resulted in indictments 
and convictions against individuals for violations of the Commonwealth's criminal laws. Cases included 
larceny against the elderly and vulnerable by home improvement contractors and a travel agent; unlicensed 
practice of medical professions; telemarketing fraud and illegal charitable fundraisers. 

GOVERNMENT BUREAU 



• TVial Division The Division played a major role in tort actions filed against the Commonwealth 
by investigating allegations of abuse, mistreatment and deaths of individuals 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 vehicles. The Division 
also investigated cases involving contract disputes and eminent domain proceedings. 

COMMUNITY- BASED JUSTICE BUREAU 

• Safe Neighborhood Initiative (SNI) The Division assisted the Attorney General's Abandoned 
Properties Project by conducting research on target properties in several communities, primarily 
to determine the status of ownership and existence of encumbrances of the buildings, and, in some 
instances, assisted in inspecting properties scheduled for renovation. During the Fiscal Year, 
properties were researched in Taunton, Worcester Lawrence and Brockton. 



171 



PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 



STATISTICAL SUMMARY 



The Division opened 396 investigations in Fiscal Year 200 1 , with 342 investigations ongoing as of June 
30,2001. 

DIVISION/BUREAU OPENED DURING ON GOING AS 
FY 01 OF 6/30/01 

Consumer Protection/Antitrust 38 68 

Civil Rights 13 27 

Public Charities 6 9 

Regulated Industries 4 7 

PPB - PPB Criminal 5 8 

Government 4 

Environmental Protection 11 14 

Trial 319 205 

TOTAL 396 342 



The Investigation Division included Karen Ortolino, Director; Kelly Bums; Kerri Burridge; Monique 
Cascarano; Mayra Connolly; Amy Cederholm; Quinton Dale; Todd Davis; Ashley Dizel; Eric Funk; Jennifer 
Hollingsworth; Jim Hoog; Matthew McMahon; Karen Leary; Brian Lelio; Brian O'Connell; Lou Russo; 
and Nancy Ward. 



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, § 8. 



172 



PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 



The Division of Public Charities was established to carry out the Attorney General's responsibilities in this 
area. 

More than 30,000 charities are registered with the Division, as well as over 300 professional fundraisers 
presently soliciting donations on behalf of charities in Massachusetts. A public charity is an entity which is 
non-profit, whose purpose is charitable, and which benefits a portion of the public; in addition to philanthropic 
organizations, examples of public charities include nonprofit hospitals, schools, social service providers, 
and cultural organizations. As well as registering and obtaining financial reporting by charities and fundraisers, 
the Attorney General is the defendant in all proceedings brought to wind up the affairs of a public charity or 
to change the terms of a charitable trust. 

Perhaps the most prominent work the Division performed in this year was in the health care area. 
Consistent with the Office's considerable interest in resolving problems related to the delivery of health 
care, the Division has reviewed and monitored the actions of a number of the significant non-profit healthcare 
institutions that are public charities in Massachusetts, including both hospitals and insurers. The Division 
engages in these corporate governance and oversight initiatives to ensure that the governing boards of 
these institutions have carried out their fiduciary duties of due care and loyalty. 

More generally, and beyond the enforcement of laws relating to the governance of charities and those 
requiring annual reporting by public charities operating in the Commonwealth, the Division focused its 
activities this year in two primary areas: enforcement litigation to address deception and fraud in charitable 
fundraising and estate and trust actions to ensure that charitable trust funds were appropriately administered 
and applied. 

The Division also recognizes that charities provide vital services in our communities while both enjoying 
certain benefits due to their tax-exempt status and assuming certain obligations as well. As a result, the 
Division was involved in a number of initiatives intended to strengthen the charitable sector. These efforts 
included holding a public conference designed to educate directors and officers of charities; issuing the 
Division's annual report on charitable fundraising published during the fall charitable giving season, and 
working with the Boston Bar Association on legislation that would revise the non-profit corporation statute. 

HEALTH CARE INITIATIVES 



The Division was involved in a variety of efforts to analyze and stabilize the healthcare sector. For 
example, the Division spent considerable time and effort in investigating and monitoring the financial and 
operating condition of a large eastern Massachusetts health care system. Division staff reviewed a large 



173 



PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 



volume of documents, met with representatives of the system, and worked with experts hired by the Office 
to assess, on a regular basis, whether the board and officers of the healthcare system were turning around 
the hospital's operation. 

• Springfield Review The Division worked with others throughout the Office in an investigation of 
the Springfield health care market required by the Legislature. The Legislature directed that the 
Office consider whether charitable assets were properly used in the Springfield area in connection 
with questions around access to healthcare. Although the final report of the Office was schedule 
for release in the fall of 200 1 (in Fiscal Year 2002), the intense work and analysis that went into the 
report began in Fiscal Year 200 1 . The Division ultimately concluded that it found no violations of 
charities law in various transactions reviewed in the Springfield market. (Cardone, Soris) 

• G.L. c. 180, § 8A(d) reviews Another area that required extensive efforts by the Division was 
in the review of health care transactions. Under the recently enacted G.L. c. 180, § 8A(d), the 
Legislature required the Office to review an expanded range of healthcare transactions between 
non-profit hospitals and HMO's and other for-profit institutions. The Division began reviewing 
transactions under this statute in Fiscal Year 2001 and also began the process of establishing 
written guidelines to provide charities and the public with clarity as to how the statute will be 
implemented. The Division reviewed various transactions concerning two hospitals that faced 
potential closure, Maiden Hospital and Whidden Hospital in Everett. The Division ultimately 
determined for a variety of reasons that those transactions did not require a full investigation under 
§ 8A(d), although the sale of the real estate owned by Maiden Hospital will ultimately require a 
review under the statute. (Soris) 

• Harvard Pilgrim Health Care Division personnel continued to deal with issues arising out of the 
Harvard Pilgrim Health Care receivership. The Division worked with Harvard Pilgrim over a 
variety of issues, including governance and engaging an independent health care analyst. (Soris, 
Carriker) 

• Kimball Farms Continuing Care Retirement Community (part of Berkshire Healthcare 
System) The Division reviewed a transaction involving the Kimball Farms retirement community 
and nursing home. Certain residents of Kimball Farms raised questions as to the propriety of 
certain aspects of a transaction that involved financing by Kimball Farms of renovations to the 
retirement community facility as well as to a nearby nursing home. The renovations will mean that 
a large number of beds in the Kimball Farms nursing home will disappear and residents will move 
to the nearby nursing home. The Division reviewed the transaction and determined that there were 
no charities violations. (Soris) 



174 



PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 

CHARITY GOVERNANCE 



The Attorney General's oversight of charitable corporations focuses on stewardship by charity boards 
of directors. The Division may become involved when directors breach their individual fiduciary duties of 
due care and loyalty or to prevent the misuse of charitable funds. In some cases, the Division has engaged 
in investigations and then negotiated governance agreements that provides for reforms in how charities will 
operate. In other cases, the Division brought enforcement actions in court after investigations. This year, 
the most significant of such matters included: 

• Greater Lynn Mental Health & Retardation Center, Inc. The Division continued its 
oversight of actions by the Greater Lynn Mental Health & Retardation Association, Inc. 
("Greater Lynn"). Greater Lynn operates a variety of mental health and retardation programs, 
including programs under contract to various state agencies, and, with revenues of 
approximately $30 million, is a major provider on the North Shore. After receiving information 
that raised the possibility of a misapplication of charitable funds, Division attorneys met with the 
Board and negotiated an agreement for Greater Lynn to hire a management advisor to review its 
operations and advise the charity and the Division about necessary reforms, potential funding, 
and operational reforms at the charity, and to investigate other potential problems within Greater 
Lynn. The Division then oversaw the operation of the charity and worked with the management 
advisor to ensure the charity was properly run. In addition, the Division participated in 
discussions concerning Greater Lynn's selection of a new CEO, followed by the selection of a 
number of new members of the board of directors. (Carriker) 

• Chinese Consolidated Benevolent Association The Division conducted a fiduciary duty 
investigation into the operations of CCB A, a large Chinatown charity, focusing on the 
organization's lack of financial accountability and a large donor-restricted gift that CCBA may 
not have used consistent with the donor's intent that it go toward affordable housing purposes. 
After filing a complaint seeking a receivership, the Division entered into an agreed-upon 
preliminary injunction providing that the charity had to complete certain activities by specified 
dates. When CCBA did not meet certain conditions specified in the preliminary injunction on 
time, the Division requested that the Court order that CCBA hire an interim CEO acceptable to 
the Division to take operational control of the charity. The Superior Court entered such an 
order. In time, CCBA hired a CEO acceptable to the Division, with his first mission to bring 
order and stability to CCBA's financial situation, including its accounting and reporting to the 
Division. (Rosenberg) 



175 



PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 



• Bright Star Daycare Center Parents and faculty members involved with this daycare 
center became quite concerned about the fact that the two corporate members of the daycare 
center, the Hallmark Health System and the Maiden YMCA, had received substantial 
contributions from Bright Star and had, arguably, engaged in other activities contrary to the 
interests of the daycare center. The Division investigated the situation, met with all parties, and 
negotiated an agreement that provided for a restoration of funds to the daycare center and for 
reforms in the way that the daycare center operated. (Soris) 

FOR-PROFIT ACQUISITIONS 

The Public Charities Division continued to devote considerable time and resources to reviewing proposed 
for-profit acquisitions of health care providers and other charitable corporations. 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 manner uninfluenced by conflict of interest. 

During the year, the Division began investigating a proposal by the Delta Dental insurer to establish a 
for-profit subsidiary. 

REVIEW OF ASSET DISPOSITIONS 



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. 1 80, 
§ 8A(c). On a regular basis and in substantial volume, the Division reviews correspondence and documents 
provided to us about transactions involving charities. 

• Bradford College The College closed following the conclusion of the spring semester in 
2000. The Division discussed and resolved a variety of issues concerning the College's handling 
of restricted funds. In addition, the Division met with College representatives and others to deal 
with on-going issues related to the disposition of the College's assets in the face of substantial 
debts owed by the College. (Rosenberg) 



176 



PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 



CHARITABLE CORPORATION DISSOLUTIONS 

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. 1 80, § 
1 1 A. After review, negotiation of necessary modifications, and assent by the Division, the pleadings are 
filed by the dissolving charity in the Supreme Judicial Court. The Division reviewed many transactions 
involving proposed dissolutions. 

SOLICITATION OF CHARITABLE FUNDS 



The Attorney General takes affirmative legal action against charities and professional fundraisers for 
unfair or deceptive solicitation practices and to enforce their fiduciary duties with respect to funds raised. 
In addition to injunctive relief, the Attorney General may seek restitution of funds intended by the public to 
benefit a specific charity, or particular charitable purpose, along with penalties and fees. 

• Commonwealth v. Baystate Assistance Programs et al. (Suffolk Superior Court) In 
December, 1 998 the Attorney General filed a fundraising fraud action against these professional 
fundraisers, charities and their officers for allegedly misleading donors to believe that their 
contributions would provide housing for homeless veterans or would benefit homeless shelters 
and veteran outreach centers, when almost none of the more than $5 million raised went to help 
homeless veterans. 

Following settlement negotiations, the court approved a consent judgment distributing 
approximately $440,000 to several veterans shelters and barring further solicitation activity by a 
defendant charity, a defendant fundraising entity, and the individuals who operated them. 
Previously, the Division had obtained a consent judgment against a charity defendant that 
provided for the distribution of $55,000 to veterans shelters, so that the Division obtained close 
to $500,000 for twelve homeless veterans shelters in settling this case (Maslow-Armand, 
Sarason, Baddour). 

• Commonwealth v. Project Imagine (Bristol Superior Court) Project Imagine, a small 
charity located in the New Bedford area, conducted a raffle of an expensive house as a means 
of raising funds. The Division investigated and determined that Project Imagine had incurred 
debts of over $900,000, including two substantial mortgages on the property, while receiving 
something more than $400,000 from ticket sales. As a result, it became clear that Project 



177 



PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 



Imagine could not convey to the raffle winner the house without mortgages, so that the raffle 
constituted a deceptive solicitation. The Division went to court and obtained a preliminary 
injunction to halt the raffle. The charity never functioned after that point and never put together 
a plan to proceed with the raffle. One of the mortgage-holding banks foreclosed on the house 
and sold it at auction. The Division did uncover approximately $ 1 00,000 in an account from 
Internet sales of raffle tickets and directed a return of a very high percentage of those funds to 
ticket purchasers. (Antonucci) 

• American Children's Safety Source The Division filed a Civil Investigative Demand 
against a nationwide charity that hired people to solicit donations door to door from 
Massachusetts businesses, as well as to solicit funds in business parking lots. Division personnel 
took a number of depositions of officials of American Childrens' Safety Source and obtained a 
large volume of documents. (Maslow-Armand, Green) 

• Commonwealth v. Action Programs, Inc. et al. (Suffolk Superior Court) The Division 
filed an enforcement against eight fundraising companies that failed to file with the Division 
certain required financial records and accountings for funds raised in the previous year. 
(Maslow-Armand) 

• New England Kids Network The Division began investigating a local for-profit company 
that used a charity-sounding name and a set of apparently misleading representations to induce 
individuals to donate their used cars to the company. (Cardone, Maslow-Armand) 

ESTATES AND TRUSTS 



In furtherance of his authority to "enforce the due application" of charitable trust funds and to "prevent 
breaches of trust in the administration thereof," the Attorney General is an interested party in the probate of 
all estates in which there is a charitable interest and in all other judicial proceedings affecting charitable 
trusts. 

Accordingly, the Division handled a large volume of cases in this area involving such matters as proposed 
allowance of accounts, will compromises, sale of real estate, change of purposes or beneficiaries of charitable 
trusts and bequests, amendment of charitable trusts to meet IRS requirements, and termination of charitable 
trusts under G.L.c. 203, §25. For example: 

• Wills, Trusts, and Other Probate Statistics During Fiscal Year 200 1 , the Division received 
and reviewed 925 new wills, and received and reviewed 9 1 3 interim accounts for executors and 



178 






PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 



trustees, as well as 6 1 2 final accounts. In addition, the Division received, reviewed, and assented 
to 59 petitions for license to sell real estate and received and reviewed and 749 miscellaneous 
complaints and filings. 

During the reporting year, the Division assented to 80 final judgments dissolving charitable 
corporations pursuant to § 1 1 A. 



SIGNIFICANT DIVISION INITIATIVES 

Technology and Public Access The Division, working with others in the Office, created a 
Charities Web page that will provide considerable information to charities and members of the 
public. All of the brochures and materials that the Division provides appear on the Web site. 

In another step both toward giving the public more access to Division public records and toward 
electronic registration with the Division by charities, the Division began planning a document imaging 
program. The program will involve scanning of documents filed with the Division so that Division 
personnel can review them on computer. Once the system is up and running, the Division will 
provide access for the public to the scanned documents. 

Public Education The Division continued its ongoing public education efforts regarding charitable 
giving and charity stewardship. In addition to continuing distribution of a wide variety of public 
education materials, 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. 
The Division also sponsored a very successful conference for board members and officials of 
charitable, non-profit organizations. 

In November 2000, the Division conducted a "Giving Season" public education campaign. Carried 
out in conjunction with the Better Business Bureau and the American Association Of Retired 
Persons Of Massachusetts, this education campaign is part of 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. Among other things, the "Giving Season" public education campaign 
featured the annual Attorney General's Report On Telemarketing For Charity. The report 
provides general information about professional fundraisers and their statutory reporting obligations 
and specific information about the campaigns conducted in calendar year 1 999. 



179 



PUBLIC PROTECTION BUREAU PUBLIC CHARITIES 



Non-Profit Corporation Legislation The Division actively participated on a Boston Bar 
Association special task force to revise the non-profit corporation statute, G.L. c. 1 80, including 
three subgroups established to address charity-specific issues: (a) a multi-tier subgroup addressed 
issues of charitable fiduciary obligations in affiliated corporate systems; (b) a charitable assets 
subgroup addressed mergers and how to streamline procedures for statutory dissolution of charities; 
and (c) a charity. 



DIVISION ADMINISTRATION & 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 1 , 144 requests to view files in the past Fiscal Year and, in 
response, approximately 2,749 files were pulled. 

• Charitable Organizations: Registration and Enforcement From July 1 , 2000 through June 
30, 200 1 , the Division processed approximately 30,900 annual financial reports and collected 
$ 1 ,564,874 in annual filing fees. These funds go directly to the Commonwealth's General Fund. 
As part of an ongoing compliance program, Division staff contacted charities whose annual filings 
were deficient or delinquent to rectify filing deficiencies. 

• Issuance of Certificates to Charities Who Fundraise Under G.L. c. 68, § 19, every charitable 
organization which intends to solicit funds from the public, except religious organizations, must 
apply to the Division for a solicitation certificate before engaging in fundraising. Upon receipt, the 
Division reviews certificate applications for compliance with statutory requirements. Unless there 
is a deficiency in the application, all certificates are issued within a 10-day statutory period. 

• Registration of Professional Solicitors & Fund Raising Counsel Under §§22 and 24 of 
G.L. c.68, all persons acting as professional solicitors, professional fundraising counsel, or 
commercial co-venturers in conjunction with soliciting charitable organizations must register annually 
with the Division. Solicitors and commercial co-venturers must also file a surety bond in the 
amount of $ 1 0,000.00. All fundraisers must also file with the Division a copy of each fundraising 
contract which they sign with any charitable organization, and solicitors must later file a financial 
return regarding each fundraising campaign. 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



During the Fiscal Year ending June 30, 2001, a total of 303 registrations were received and 
approved, resulting in $62,450 in fees to the Commonwealth. Registrations were received from 
95 solicitors, 157 fund-raising counsel, and 5 1 commercial co-venturers. 

MONEY RECOVERED FOR THE COMMONWEALTH TREASURY 

Charitable and Fundraiser Registration Fees $ 1,627,324 

Other fees, requests for copies, $3,287 

requests for computer information (approximate) 

TOTAL $1,630,611 

The Public Charities Division included the following staff members: Jamie Katz, Chief; Eric Carriker; 
Johanna Soris; Deirdre Rosenberg; Laura Maslow-Armand; Sandra Cardone; Marion Antonucci; 
Matthew Jervinis; Karen Calhoun; Caitlin Calder; Kevin Fennessey; Daniel Ferullo; Cathy Hoffman; 
Tina Williams; Kathleen O'Connell; Beth McGillicuddy; AnnGiroux; Ann Higgins; Patricia Clifton; and 
Richard Reuss. 

REGULATED INDUSTRIES DIVISION 

The Regulated Industries Division represents consumer interests with respect to two industries: insurance 
and public utilities. The Division's work is carried on before state and federal courts as well as administrative 
regulatory bodies such as the Massachusetts Department of Telecommunications and Energy (DTE or 
Department), the Federal Energy Regulatory Commission (FERC), the Federal Communications 
Commission (FCC), and the Massachusetts Division of Insurance (DOI). In many of these matters, 
particularly public utility rate cases, the Division is the only active participant advocating on behalf of 
Massachusetts consumers. 

INSURANCE 

The Regulated Industries Division's representation of consumer interests in insurance matters is divided 
into ratemaking cases and enforcement of the consumer protection laws, G.L. c. 93 A and c. 1 76D. In its 
ratemaking work, the Division intervenes in both automobile and health insurance rate setting proceedings. 



181 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



In its consumer protection function, the Division protects Massachusetts citizens from unfair sales and 
claims practices. The Division receives many consumer questions and complaints through the Division's 
insurance hotline for consumers, direct mail and telephone communications. The Division obtains both 
restitution and injunctive relief for insurance consumers through mediation, negotiation and, if necessary, 
litigation. Finally, the Division engages in non-case related work to advance insurance consumer interests, 
including legislative, regulatory, educational, and other outreach activities. The Division also operates 
AGELDER, a toll free hotline to aid seniors and their families on elder related issues. 

RATE CASES 

Automobile 

• 2001 Automobile Insurance Proceedings concerning the 2001 automobile insurance rate 
began on April 26, 2000 with notice of the annual hearing called by the Commissioner to 
determine whether it was necessary that the rates for 200 1 be fixed and established in 
accordance with G.L. c. 175, § 113B. The Division participated in the hearings and testified, 
on June 1 , 2000, that any return to competition should include a subsidization and cost-sharing 
mechanism to protect policyholders in urban areas from rate shock. The Commissioner ruled 
that she would fix and establish rates for 200 1 . 

On July 7, 2000, the Automobile Insurers Bureau ("AIB"), on behalf of the automobile 
insurance industry, filed with the Division of Insurance its recommendation concerning the 
underwriting profit component of 200 1 private passenger automobile insurance rates. On July 
14, 2000, AIB filed with the Division of Insurance its recommendation concerning the cost 
containment and fraudulent claims payments component of 200 1 private passenger automobile 
insurance rates. On August 1 1 , 2000, AIB filed with the Division of Insurance its 
recommendation concerning the main rate for 200 1 private passenger automobile insurance 
rates. AIB requested an increase of 2.5 % increase over the 1999 rates. If approved, these 
requests would have been equivalent to an average increase in auto insurance premiums for 
Massachusetts drivers of $25 per car or $234 million overall. 

On behalf of Massachusetts consumers, the Division challenged the increase requested by the 
industry and numerous portions of the insurers' filings and recommended a rate reduction of 
10%. In December, 2000, the Commissioner issued a decision fixing and establishing an 
average rate which was approximately 8.3% lower than the equivalent 1999 rate or 10.8% 



182 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



lower than the industry's requested increase. The Division's intervention resulted in savings to 
Massachusetts consumers of $324 million or an average of $100 per car. 

• OEM Proceeding The insurers proposed an endorsement to the automobile policy 
providing coverage for original equipment manufactured parts, to cost approximately 1 3% of 
collision and comprehensive coverage rates. The Commissioner adopted the Division's 
recommendation of a 5% collision and 1% comprehensive rate. 

• Premier Managed Care Endorsement Premier, a subsidiary of Travelers Insurance Co. 
and one of the 1 largest insurers in Massachusetts, filed an endorsement giving policyholders a 
reduction of approved rates on certain portion of the premium if they agreed to use their HMO 
or Premiers PPO network of providers. The Division supported the endorsement, and it was 
approved by the Commissioner. 

Homeowners 

• In re 2001 Rate Filings for Property Insured by the Massachusetts Property 
Insurance Underwriting Association In 2000, the Massachusetts Property Insurance 
Underwriting Association ("FAIR") submitted filings to the Division of Insurance for increases in 
their Homeowners product and their Dwelling and Fire product. The Division participated in 
the hearings and the case was settled by stipulation which increased overall rates for Dwelling 
Fire and Extended Coverage insurance by 1 .2% and decreased overall rates for Homeowners 
Multi-Peril insurance by -0.5 1 %, saving consumers $125,119. (Division of Insurance) 

Medicare Supplement 

• Bankers Life 2002 Medicare Supplement Rate Proceeding at DOI Bankers Life and 
Casualty Co., the second largest Medicare supplement insurer in Massachusetts, sought rate 
increases of between 1 8% and 56% on its plans. The Division participated in the administrative 
hearings before the Division of Insurance; the case was settled by stipulation which increased 
overall rates by between 13% to 30%, saving consumers $5,858,285 over an 18 month period. 

• Hartford Life Insurance Co. Medicare Supplement Rate Proceeding at DOI 

Hartford sought rate increases of 59% on its drug plan and 44% on its core plan. The Division 
participated in the hearings and the case was settled by stipulation which increased overall rates 
by between 1 9.5% in its drug plan and 44% ($8.00 per month for 74 core participants in the 
Commonwealth), saving consumers $1,347,583 per year 



183 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



CONSUMER PROTECTION/ENFORCEMENT 

The Division also engaged in non-rate case related insurance work during Fiscal Year 2001 that 
involved consumer protection issues and/or enforcement of the Commonwealth's insurance laws, including: 

• In re Metropolitan Property & Casualty Insurance Co. (Suffolk Superior Court) The 
Division oversaw refund by Metropolitan of nearly $2 million to policyholders who had not been 
given credit for their passive restraint discounts. 

• InsWeb Corporation, Amica Mutual Insurance Co. Commerce Insurance Group 

The Division investigated and sent notice letters to each of these companies regarding possible 
violations of G.L. c. 93 A, 1 75 & 1 76D in providing auto insurance quotes by participating 
insurers on the InsWeb Internet site. 

• Massachusetts v. Union Security Life Insurance Company In December, 2000, the 
Division filed a consent judgment in which the Union Security Life Insurance Company agreed 
to resolve allegations that it had violated G.L. c. 1 75, § 1 1 7C, by charging too much for a credit 
insurance product called "CreditShield" (a form of credit insurance which pays the minimum 
balance due if a covered consumer becomes disabled or will pay the entire account balance if a 
covered consumer dies). The Division alleged that Union Security charged credit-insurance 
premiums that were unreasonable in relation to the benefits provided because the premiums 
violated both the minimum loss ratio test and the standard case rating procedure defined by c. 
175, § 117C. 

As part of the consent judgment, Union Security provided more than $ 1 ,000,000 in refunds to 
Massachusetts consumers, reduced its total premiums starting in 2001 by several hundred 
thousand dollars per year in accordance withe. 175, § 117C, and agreed to provide $604,000 
in additional rate reductions, below the rate required by c. 175, § 117C, during 2001 and 2002. 

PRIVACY 



The Division has taken an active role in educating consumers and the insurance industry about the 
privacy protections provided by a federal law enacted in 1 999 called the Gramm-Leach-Bliley Act (GLB A). 
Under GLB A, all financial institutions, including every insurance company, bank, credit card company, and 
tax or financial advisors, must provide their customers with annual privacy notice that: ( 1 ) describes how it 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



handles personal nonpublic information; and (2) explains how a customer can take action to limit the 
disclosure of their personal information to others. 

• Consumer Education; GLBA Guide To help explain this new federal privacy law to consumers, 
the Division published a consumer guide, Important Privacy Rights & Protections, explaining 
GLBA and the rights of consumers to take action to limit the disclosure of their personal information 
by electing to "Opt-Ouf ' of future disclosures. The guide has been distributed through the Attorney 
General's regional offices and through local consumer groups. 

• Business Education; GLBA Conference On May 4, 2001, The Division sponsored an 
educational program for the insurance industry and other financial institutions to explain the obligations 
those entities have under GLBA. The Federal Trade Commission Northeast Region, the Office of 
Consumer Affairs and Business Regulation, and the Better Business Bureau co-sponsored the 
program. Members of the Division explained the application of GLBA to the insurance industry 
and moderated a panel discussion by representatives from financial institutions. 

HEALTH CARE COVERAGE 



EMPLOYERS FAILURE TO REMIT HEALTH INSURANCE PREMIUMS 

The Division investigates complaints against employers who allow their group health plans to lapse 
because of their failure to remit health insurance premiums or their failure to provide sufficient funds to 
cover their employees' health costs. 

• Investigations The Division investigated 42 employers during this Fiscal Year. With the exception 
of disputes between a single employee and the employer, most complaints related to self-insured 
plans. 

• Violations of 940 CMR 9.00 The Attorney General's regulation, 940 CMR 9.00, requires 
insurers to pay claims until they have notified employees directly of any termination of coverage 
The Division learned through various consumer complaints that Aetna US Healthcare was denying 
coverage to groups that were terminated due to non-payment of premium by the employer/group 
sponsor and terminating groups retroactively for periods longer than the 60 day maximum allowed 
by the regulation. The Division was in the process of negotiating a resolution, in the form of an 
Assurance of Discontinuance, with Aetna at the end of the Fiscal Year. 



185 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



• Bankruptcy Interventions The Division continued to vigorously litigate issues arising from the 
reorganization under chapter 1 1 of the bankruptcy code of Boston Regional Medical Center 
(BRMC). Prior to the bankruptcy, BRMC had deducted a portion of the health insurance premiums 
from the employees' pay checks for approximately two months, but had failed to remit those 
payments to the appropriate carriers. This resulted in unpaid medical bills for Fallon Health Care 
participants (approximately 240 employees) in the amount of $200,000. 

HEALTH CARE LITIGATION 



• Commonwealth v. Fallon Community Health Plan The Division investigated consumer 
complaints against Fallon Community Health Plan in connection with Fallon's precipitous 
termination of its contract with Deaconess-Nashoba Hospital . The Division then reached a 
settlement with Fallon in which it agreed to a consent judgment and injunction requiring timely 
notice in future cases where relationships between Primary Care Providers and their patients are 
jeopardized by termination of hospital contracts. 

• Commonwealth v. Poitras et al. (Suffolk County Superior Court) The Division settled a 
longstanding case involving a failed health plan offered by Massachusetts Lobstermen's 
Association. The settlement required the Massachusetts Lobstermen's Association to pay 
$595,000 for unreimbursed medical expenes of it policyholders. 

• Commonwealth v. Healthcare Value Management (Suffolk County Superior Court) 
The Division entered into consent decree with Health Care Value Management, Inc. (HCVM), 
a provider of the PPO network to a fraudulent insurance company, Fraternal Insurance Group 
(operating under the AmeriMed name). The Division had previously obtained a $ 1 .8 million 
judgment against Fraternal Insurance Group to cover approximately $800,000 in claims, 
premiums, and penalties, but had been unable to collect on the judgment. HCVM agreed to 
reimburse all consumers for payments that should have been made by Fraternal Insurance 
Group, and to make a payment that could be as high as $25,000 to the Attorney General's local 
consumer aid fund. 

• CIGNA Health Care CIGNA Health Care (CIGNA) was the third party administrator 
for the self insured employee benefit plan for a group of nursing homes owned by the Lenox 
corporation, which filed for bankruptcy in 1999. The Division received a complaint from a 
consumer who had undergone a bone marrow transplant that was "pre-approved" by CIGNA 
for a period of six months. During the six month period, however, Lenox had failed to pay any 



186 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



administrative fees or premiums to CIGNA (CIGNA was also the re-insurer for the Lenox 
plan); as a result, CIGNA denied all medical services incurred by Lenox employees, including 
the services incurred by the consumer in connection with the bone marrow transplant and 
chemotherapy treatments. The Division took an active role in investigating this matter, alleging 
that CIGNA's pre-approval of the services and later denial of payment for those services when 
incurred was an unfair and deceptive act or practice under G.L. c. 93 A. The Division 
negotiated a resolution in which CIGNA paid, in October, 2000, approximately $102,000 to 
the providers to cover the services incurred by the consumer. 

HEALTH CARE COVERAGE 

The Division undertook a variety of initiatives in the areas of health insurance coverage and managed 
care. 

• Harvard Pilgrim Health Care Receivership The Division continued to work with the Public 
Charities Division to analyze HPHC, and the services it provides, post receivership. 

• Student Health Plans The Division entered into consent decrees with the four largest insurers of 
student health plans in Massachusetts; Boston Mutual Insurance Co., Mutual of Omaha Insurance 
Co., Continental Assurance Co. (CNA), and Chickering Group. The companies agreed to correct 
the materials and administration practices to provide that pre-existing conditions are covered under 
the same terms as any other accidents or illnesses where the insured had prior comparable coverage 
and to provide a dollar limitation in coverage for pre-existing conditions that is not less than the 
dollar limitation for coverage of accidents and illnesses during the policy period; and to eliminate 
any waiting period for. The companies also agreed to pay all claims previously denied on the basis 
of a pre-existing condition limitation and contributed $13,500 to the Attorney General's Local 
Consumer Aid Fund. 

• Continuation Coverage After Divorce A member of the Division participated in a working 
group made up of various health care advocates to provide education to pm se divorce litigants on 
their rights to continuing coverage in the event of divorce. The group is preparing a brochure to be 
distributed to all divorce litigants through the probate court. 



187 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 

COMMUNITY BENEFITS 



A member of the Division oversees the Attorney General 's Hospital and HMO Community Benefits 
Guidelines. During the 2000-200 1 Fiscal Year, the Division member provided guidance to the hospitals 
and HMOs in their completion of their annual community benefits reports and analyzed those reports. 

A member of the Division also oversees the Attorney General's Advisory Task Force on Hospital and 
HMO Community Benefits, which was convened in June 1 998 for the purpose of advancing the goals of 
the Community Benefits Guidelines. This Task Force includes representatives of hospitals, HMOs, 
community health advocacy groups and relevant state agencies, and is organized into several working 
groups that focus on the key elements of community benefits including needs assessment, program evaluation 
and community participation. 

The working group on reporting issues completed and released a first draft of new reporting guidelines, 
and conducted an informal public comment process. This included focus groups of hospitals, HMOs and 
community groups, and a review of written comments received from stakeholders. Another working 
group made progress designing and planning a series of regional community forums around the state on 
community benefits. 

LONG-TERM CARE INSURANCE 



The Division continued its work to examine problems faced by elders in financing nursing home and 
other long-term care services, including responding to consumer inquiries regarding long-term care insurance 
and making presentations to groups of agents and consumers concerning long-term care insurance. 

• Long-Term Care Insurance Regulation The Massachusetts Long-Term Care Insurance 
Regulations, 2 1 1 CMR 65 et seq., are intended, in part, to increase public understanding and 
comparison of long-term care policies. The Division played a lead role in developing Your Options 
For Financing Long-Term Care: A Massachusetts Guide, a comprehensive consumer guide to 
long-term care financing that the new regulation requires long-term care carriers and their agents to 
provide to consumers at the start of the sales process; members of the Division monitored industry 
compliance with the revised long-term care insurance regulation; and the Division began a survey 
of all non-group long-term care insurance carriers who do business in Massachusetts concerning 
their experience in working with the regulations, their use of required disclosure forms, as well as 
their experiences with the agent training and marketing provisions of the regulations. 



L88 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



LIFE INSURANCE LITIGATION 

During the past two years, the Division has continued to devote a considerable amount of time and 
resources to cases involving allegations of deceptive sales practices in the life insurance industry. These 
deceptive sales practices generally involve three forms of sales misrepresentation: ( 1 ) vanishing premium 
sales in which the total amount of premiums, or the total number of annual premiums, required to pay for 
a policy are misrepresented; (2) replacement sales (also called "churning" or "twisting") in which the 
impact of using value from a prior existing policy to pay for a new policy is misrepresented; and (3) 
retirement or investment sales in which an insurance product is misrepresented as an investment or 
retirement plan. The Division has continued to monitor the remediation plan in the Prudential and John 
Hancock consent decrees; entered into consent judgments to provide global relief with two additional life 
insurance companies, Metropolitan Life Insurance Company and New England Life; and mediated cases 
on behalf of individual consumers with 52 different companies recovering more than $1 ,000,000 for those 
individual consumers. 

• Prudential Insurance Company of America SUCV#1997-3070-E The Division 
continued to monitor the Alternative Dispute Resolution ("ADR") process detailed in our 
Consent Judgment against Prudential and in a related national class action settlement, In re: The 
Prudential Ins. Co. Of Am. Sales Practices Litig., 962 F.Supp. 450 (D.N.J. 1997), qff'd, 
148 F. 3d 283 (3r Cir. 1998), cert, denied, 142 L Ed 2d 789 (1999). The Division continued 
to participate in the Regulatory Oversight Group comprised of the states regulators to ensure the 
fairness of the remediation process. The Division worked with the Massachusetts Division of 
Insurance and counsel for the national class action on a plan approved by Judge Wolin to 
distribute $ 1 36,000,000 to class members nationwide as an additional remediation amount as 
required by the national settlement. The estimated total relief provided to class members 
nationwide is estimated at nearly three billion dollars. 

• John Hancock Mutual Life Insurance Company SUCV #1998-1 542-G The Division 
continued to monitor the Alternative Dispute Resolution Process detailed in our Consent 
Judgment against John Hancock and in a related national class action settlement, Duhaime v. 
John Hancock Life Ins. Co., 177FRD54(D.Mass. 1997). The judgment provided relief to 
approximately 250,000 Massachusetts policyholders. The Division continued to operate a 
consumer hotline to assist policyholders in the Alternative Dispute Resolution Process; and to 
meet with defendants and plaintiffs' counsel in order to ensure compliance with the letter and 
spirit of the settlement. 



189 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



• Massachusetts v. Metropolitan Life Insurance Company SUCV #2000-025 16-A 
In June of 2000, the Division filed a consent judgment in which Metropolitan Life Insurance 
Company ("MetLife") agreed to resolve alleged deceptive sales practices by providing global 
relief to Massachusetts consumers who purchased certain insurance products from MetLife 
between 1 982 and 1 997. As part of the consent judgment, the Attorney General required 
substantive improvements to a national class-action settlement and that settlement was approved 
as amended by the Attorney General. In re: Metropolitan Life Insurance Company Sales 
Practices Litigation, Misc. Docket No. 96-1 79, MDL No. 1091 (W. D. Pa. July 26, 2000). 
The national class action involved roughly seven million class members and the total relief to 
class members nationwide has been estimated at one billion dollars. 

In addition to providing global relief through an improved relief structure, the Attorney General 
instituted an outreach and assistance program, funded by MetLife, to aid approximately 
250,000 individual class members in Massachusetts. The Division sent informative guides about 
the settlement to class members, issued public service announcements, and established a 
toll-free telephone hotline to answer individual questions from class members. The Division 
received more than 1 8,000 calls about the MetLife settlement. 

As a result of the Attorney General's outreach program in the MetLife case, individual relief 
claims were submitted by roughly 1 .95% of class members nationwide and by roughly 4.8% of 
class members in Massachusetts - approximately 5,000 Massachusetts class members filed 
individual claims because of the Attorney General's outreach. With average individual claim 
relief at $3,266, the Attorney General's outreach provided those 5,000 Massachusetts class 
members with some $16,000,000. Total relief to Massachusetts residents from the MetLife 
case was approximately $33,000,000. 

• Massachusetts v. New England Mutual Life Insurance Company SUCV 
#200 1 -00 1 46-F In January of 200 1 , the Division filed a consent judgment in which New 
England Life Insurance Company ("NE Life") agreed to resolve alleged deceptive sales 
practices by providing global relief to Massachusetts consumers who purchased certain 
insurance products from NE Life between 1983 and 1996. The judgment provided relief to 
approximately 50,000 current and former NE Life policyholders in Massachusetts, and required 
substantive improvements to a national class-action settlement, which was approved as 
amended by the Attorney General. In re: New England Mutual Life Insurance Sales 
Practice Litigation, MDL 1 105-REK, Civil Action Number 1 :96-l 1543-REK (D. Mass.). 



190 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



The Division also instituted an outreach and assistance program, funded by NE Life, to aid 
individual class members in Massachusetts, including sending informative guides about the 
settlement, public service announcements, and a toll-free telephone hotline to answer individual 
questions from class members. 

CONSUMER ASSISTANCE 



Insurance Hotline & Mediation Program The Division's four full-time mediators answer the 
questions of Insurance Hotline callers, provide information and referrals and, when appropriate, 
mail consumer complaint forms to callers. In Fiscal Year 2001, 8,1 14 people, an average of 676 
each month, called the Insurance Hotline to ask questions and seek help with insurance problems. 
More than 50% of the callers were concerned about health insurance issues. Other Hotline calls 
included questions about auto insurance, life insurance, disability insurance, travel insurance, credit 
insurance and possible insurance scams. 

The Insurance Hotline received more than 1,300 calls in October, when Partners Health Care and 
Tufts Health Plan were engaged in a contract dispute. Most of the callers were Tufts members 
who were worried that they would lose access to their Partners physicians and hospitals; some 
callers were concerned that scheduled surgical procedures would be cancelled. Hotline staff 
provided information and reassurance to callers during the period before Partners and Tufts reached 
a contract agreement. 

The Division opened 1 ,397 consumer complaint files. 626 of the new complaints, 45% of the 
total, involved health insurance. The Division closed 1 ,497 consumer complaint files, recovering 
$2,177,490 for consumers. 

In Fiscal Year 200 1 , twenty-one undergraduate students from eleven colleges and universities 
received training to mediate consumer complaints. More than half of the interns received academic 
credit for their work. During the summer and academic year, interns volunteered more than 3,000 
hours in the mediation program. 

AG Elder The Attorney General's Elder Hotline ( 1-888-AG-ELDER), a statewide toll-free 
hotline, handled over 7,650 calls from elders and their families, and opened 2,594 complaints/ 
queries. The hotline provides information, mediation services, and referrals for senior citizens and 
their families on a wide range of elder issues. Mediation activities benefited elders in the amount of 
$88,421. 



191 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



Most complaints, 458, were against businesses, including auto dealerships, retail stores and banks. 
The second largest category of complaints, totaling 258, included telemarketing and mail related 
matters such as mail order business, sweepstakes and lottery offers and complaints related to 
telemarketers. AGElder registered 240 complaints about insurance issues, including prescription 
drug coverage; 1 97 complaints related to utility issues, chiefly telephone services; 1 78 complaints 
against home improvement contractors; 1 62 credit and debt issues; 1 44 complaints against health 
care businesses and health care workers and 138 complaints of financial exploitation of elders. 

• Training The Hotline has continued to invest time and effort into ensuring that the volunteers who 
handle the calls are well informed about the issues that are being brought to the Office through the 
Hotline. Not only does the Hotline serve as a screening center for elder related calls but it also 
mediates a majority of the complaints that it receives. Much of this work is done by volunteers who 
generally donate one day each week to the Hotline. To help ensure that the quality of information 
and help that is provided to is of a consistent quality, the Hotline has continued to offer mandatory 
monthly trainings to volunteers and staff. These trainings provide an opportunity to review Office 
policy and to gain knowledge in specific areas. During the past year the trainings included: Prescription 
Drug Coverage Options; Long Term Care; Common Referrals; Medicare, Medicare HMOS, 
Home Health Care and The Medicare Advocacy Program; TRIAD; Assisted Living; Guardianship, 
Health Care Proxy, POA, Victim Compensation and Mediation. 

• Outreach Activities The Hotline has become an increasingly visible presence in the community, 
chiefly through community outreach at senior centers, Visiting Nurses Associations, and legal clinics. 
During this past Fiscal Year AG Elder staff provided information about the Office and about 
consumer fraud and protection at fifteen different events. 

OTHER ACTIVITIES 



Amicus Brief in Patriarca v. Center for Living and Working The Division, along with members 
of the Public Charities Division and of the Civil Rights and Civil Liberties Division, authored an 
amicus brief for the Appeals Court addressing the scope of Rule 4.2 of the Massachusetts Rules of 
Professional Conduct. The Supreme Judicial Court took direct appellate review of the case. 
(Hershman) 

21 E Homeowner Funding Work Group The Division participated in a work group, composed 
of representatives from a number of interested constituencies, including homeowners, the home 
heating oil industry, the Department of Environmental Protection, real estate brokers, banks, 



192 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



commercial and industrial interests, licensed site professionals, and attorneys, considering the 
problem of contamination of residential properties by releases of home heating oil. The work 
group was drafting a "white paper" containing a proposed solution to the problem of funding 
cleanups of such releases on residential properties. (Hershman) 

• Elder Conferences The Division organized the first of several state-wide conferences on Elder 
Fraud and Abuse to address such topics as telemarketing, identity and home improvement fraud, 
and personal safety. The conference, held in Arlington on November 9, 2000, was a collaborative 
effort with the Arlington Council on Aging, the Middlesex County District Attorney's Office, and 
Minuteman Protective Services. More than 1 30 elders, elder providers and law enforcement 
professionals attended the free, half-day event. (Meister) 

ESTIMATED SAVINGS TO CONSUMERS 



Auto Rate Case $324,000,000 
Medigap Insurance Rate Cases $7,205, 868 

FAIR Rate Case $125,119 

Consumer Hotline $2,177,490 

Miscellaneous Mediation $1,200,000 

AGELDER Mediation $88,422 

TOTAL $334,796,899 



UTILITIES 

The Division devoted most of its work on utilities this year to advocacy of consumer interests in 
connection with the implementation of the dramatic changes underway in the telephone, electric and gas 
utility industries. The implementation of the 1 997 Electric Restructuring Act (St. 1 997, c. 1 64) continued 
with proceedings on the annual transition cost reconciliation filings, generating unit sales and refinancing of 
stranded costs. Utility mergers also occurred as a result of the continued consolidation of the electric and 



193 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



gas industry. Work continued among interested parties to make enhance competitive electric markets and 
the further progress was made at expanding the range of activities in which competition could occur in the 
telecommunications industry. The Division was an active participant each of these developments. Not 
only did the Division continue its traditional role of protecting customers from rate increases, but it advocated 
new structures and rules to maximize the consumer benefits from the move to a more competitive regulatory 
approach. The Division continues to protect the interests of small residential and business customers 
during the transition to new regulatory frameworks. Most of this work occurred in case-specific 
adjudications. 



SIGNIFICANT CASE SUMMARIES 

• BEC Energy-ComElectric DTE 99-1 9 NSTAR Merger On February 1, 1999, Boston 
Edison Company ("Boston Edison" or "BECo") and Commonwealth Energy Systems filed with 
the Department a joint petition for approval pursuant to G. L. c. 164, § 94 of a rate plan related 
to the planned merger of the companies to create a new company, NSTAR. The Division 
intervened in the merger proceeding to protect customer interests. 

Boston Edison was engaged in the generation, transmission and distribution of electricity to 
approximately 633,000 retail residential, commercial and industrial customers over an area of 
590 square miles in forty communities. Commonwealth Energy System, was composed of 
twenty subsidiaries including Canal Electric Company, a wholly-owned generation company; 
Commonwealth Electric Company, an electric distribution company which serves approximately 
327,000 retail customers in southeastern Massachusetts, including Cape Cod and Martha's 
Vineyard; Cambridge Electric Light Company, an electric distribution company which serves 
approximately 45,900 customers in the City of Cambridge; and Commonwealth Gas Company 
which provides local gas distribution service to approximately 239,000 retail customers in 
eastern Massachusetts. 

The Companies proposed a merger rate plan that would: 1 ) freeze distribution base rates for all 
four utility operating companies for four years; 2) allow recovery of merger-related acquisition 
costs from customers over forty years; 4) increase the rates of Cambridge and Commonwealth 
for certain unrecovered conservation and demand-side management costs, and, 3) institute a 
service quality plan. 

As part of its proposal, the Companies sought Department approval to charge customers $34. 1 
million a year during the first six years after the merger ($20.6 million for the acquisition premium 



1 «M 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



($824 million amortized over forty years) and $13.5 million in costs to merge ($ 1 35 million 
amortized over ten years)). Over the next thirty years, customers would be charged $20.6 
million a year for the acquisition premium. The Companies estimated net savings during the first 
ten years following the merger of $532 million. 

Although the Division opposed the recovery of merger costs from customers without their 
receiving some part of the expected savings, the Department approved the merger rate plan. 
On August 18,1 999, the Attorney General appealed the decision of the Department approving 
the transaction, challenging the standards used by the Department to assign the merger costs 
and acquisition premium to customers, and seeking a calculation of just and reasonable rates. 
By the close of the Fiscal Year, the Department had not yet filed notice of assembly of the 
record. 

ELECTRIC MATTERS 



• Transition Charge Reconciliation Filings Under the Electric Industry Restructuring Act 
of 1 997, the state's electric utilities are allowed to recover generation-related costs "stranded" 
by the move toward competition. (Stranded costs are generation-related assets, investments, 
and obligations which are unrecoverable in a competitive generation market). The Act requires 
that the utilities make an annual filing reconciling amounts collected from customers with the 
unrecovered balance of these costs. The Division reviews these filings, conducts discovery and 
participates in hearings before the Department concerning these reconciliations. This year the 
Division participated in five Department reviews of electric utility stranded cost recovery to 
ensure that costs not authorized by the Act are not recovered from customers and legitimate 
costs are mitigated to the maximum extent possible (Boston Edison Company, D.T.E. 99- 1 07; 
Boston Edison Company, D.T.E. 00-82; Cambridge Electric Light Company/Commonwealth 
Electric Company, D.T.E. 00-83; Fitchburg Gas & Electric Light Company, D.T.E. 00-107; 
Western Massachusetts Electric Company, D.T.E. 00-33). 

• Pilgrim Nuclear Power Plant Performance Boston Edison Company, D.T.E. 96-1 A-l / 
97- 1 A- 1 / 98- 1 A The Division entered into settlement negotiations with the Company and was 
able to reach a settlement resolving most of the issues in these proceedings (which had been 
docketed to review the Company's actual performance results relating to fuel procurement and 
use) concerning the performance of Boston Edison's Pilgrim nuclear power plant during 1 995- 
98. The settlement agreement required the Company to return $2.5 million to its customers 



195 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



through a special credit against the transition costs it will otherwise recover from customers. 
The Department approved this settlement in August 2000. 

• Securitization/Refinancing of Stranded Costs Western Massachusetts Electric 
Company, D.T.E. 00-40 Western Massachusetts Electric Company filed an application for 
approval of rate reduction bonds pursuant to G.L. c. 1 64, § 1 H(b). The Company initially 
proposed to securitize approximately $261 million of transition costs. Securitization is a method 
for a company to refinance transition costs. After evidentiary hearings, but prior to a 
Department decision, the Company and the Division reached a settlement under which Western 
Mass could issue approximately $ 1 55 million of rate reduction bonds. The agreement allowed 
the Company to refinance transition costs associated with the Company's unrecovered 
Millstone 2 and Millstone 3 plant balances and the buy down payment of the Springfield 
Resource Recovery Facility Power Purchase Agreement and the MASSPOWER buyout 
payment. The Company was able to reduce the carrying charge on these assets from 1 2.63 
percent to approximately 7.97 percent, saving customers an estimated $32 million. 

• Sale of the Millstone Nuclear Power Plants Western Massachusetts Electric Company, 
New England Power Company and Fitchburg Gas and Electric Light Company, D.T.E. 00-68 
Western Massachusetts Electric Company, New England Power Company and Fitchburg Gas 
and Electric Light Company petitioned the Department for approval of the sale of their interests 
in Millstone nuclear generating units 1 , 2 and 3 to Dominion Resources, Inc. The Electric 
Industry Restructuring Act requires the utilities to divest their generation assets. Millstone Units 
2 and 3 are operational 875 MW and 1,154 MW nuclear power units, respectively. Millstone 
Unit 1 has been permanently shut down and is in the process of being decommissioned. The 
Division intervened in this proceeding, conducted discovery and attended evidentiary hearings. 
The Division was concerned about Western Massachusetts Electric Company's monetary 
responsibility with respect to the decommissioning trust funds for Millstone 1 , 2, and 3. Each 
owner of each Millstone unit has contributed a specific amount toward decommissioning costs 
and that amount is placed into a trust fund to ensure that there are sufficient monies available to 
decommission the plant at the end of its useful life. Western Massachusetts Electric Company's 
decommissioning responsibility was limited to its ownership share or 19 percent. As a result of 
the hearings it was determined that Western Massachusetts Electric Company had overpaid and 
contributed funds to the trust in excess of its 19 percent ownership share. The Division and the 
Company reached a settlement that provided that the Company would credit its customers for 
the overpayment in the amount of roughly $ 1 9 million. The Department approved the 
settlement. 



196 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



• Installed Capacity Deficiency Charge ISO New England, Inc., FERC Docket EL00- 
62-005 The Division intervened in a Federal Energy Regulatory Commission ("FERC") 
proceeding involving the New England Power Pool ("NEPOOL") Installed Capacity ("ICAP") 
deficiency charge (the ICAP requirement mandates that each NEPOOL member has sufficient 
electric generating capacity under its ownership or control to meet its load and reserve 
obligations; if it fails to do so, it is charged the ICAP deficiency charge). 

On July 28, 2000, the ISO- New England made a FERC mandated filing proposing an ICAP 
deficiency charge of $0. 1 7 per kW-month (the average clearing price of the ICAP auction 
market in 1 999). Various generation-related parties filed protests. On December 15, 2000, 
FERC summarily rejected the ISO's $0. 1 7 per kW-month filing, stated that the ICAP 
deficiency charge should be related to the actual harm created by ICAP deficiencies and that 
the proposed penalty for failing to meet NEPOOL's ICAP requirement "must be something 
more than a token payment of $0. 1 7." It then ordered the implementation of an $8.75/kW- 
month ICAP deficiency charge. 

After a series of meetings among various utilities, generators and regulators on this issue failed to 
reach agreement, the Division, the Maine Public Commission, the Vermont Department of 
Public Service, Bangor Hydro-Electric Company, Central Maine Power Company, and 
National Grid USA (Massachusetts Electric Company) appealed the FERC decision to the 
United States Court of Appeals for the First Circuit. On June 8, 2001, the Court reversed and 
remanded the FERC decision, holding that FERC failed to provide some explanation as to why 
it imposed the $8.75 charge. On remand the FERC decided a charge of $3.95 was more 
appropriate, saving customers millions of dollars in energy costs. 

• Fitchburg Gas & Electric Light Company D.T.E. 99- 1 1 8 On December 29, 1 999, the 
Attorney General filed a complaint, pursuant to G.L. c. 1 64, §93, asking the Department to 
open an investigation into Fitchburg's distribution rates. The Division alleged that the 
Company's distribution rates for calendar year 1 999 were excessive and should be lowered. 
The Department conducted hearings in May and June 2001 . By the close of the Fiscal Year, 
the parties were still in the briefing stages of the proceeding. 

• Market Power NSTAR v. Sithe and PG&E, Docket No. EL01-79-000 NSTAR filed a 
complaint at the Federal Energy Regulatory Commission ("FERC") against Sithe and PG&E 
contesting market-based rate authority for their energy sales on the grounds that they are 
generators who possess market power in the North Eastern Massachusetts Area ("NEMA"). 
NSTAR asked FERC to rescind the authority of Sithe and PG&E to charge market-based rates 



197 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



during periods of transmission congestion in NEMA and to require them to divest resources in 
NEMA to create a workable competitive market for generation and to refund over-collections. 
The Division intervened in this proceeding and requested that FERC open an investigation into 
wholesale electric rates paid by Massachusetts consumers in the NEMA. The Division also 
requested that FERC determine the amount of a refund, if any, due to Massachusetts 
consumers. FERC has yet to act on this complaint. 

• Regional Transmission Organizations FERC RTO 1-86-000 On January 16, 2001, 
Bangor I lydro-Electric Company, Central Maine Power Company, National Grid USA, 
Northeast Utilities Service Company, The United Illuminating Company, Vermont Electric 
Power Company and ISO New England Inc., (ISO-NE), filed a request with FERC that it 
combine New England, New York, New Jersey, Pennsylvania and Maryland into one regional 
market administered by one Regional Transmission Organization ("RTO"). 

The Division intervened in the proceeding and filed comments, urging FERC to address 
important consumer concerns such as governance, transmission planning, and market monitoring 
prior to the formation of the proposed RTO. The Division also stated that any potential 
efficiencies that may result because of the federalization of wholesale electricity markets must 
not be gained at the expense of cost and reliability for Massachusetts consumers. Due to 
concerns expressed by the many participants in this case, and in part due to the Enron collapse 
and the California crisis, FERC slowed down the whole process, and was considering a 
different proposal to combine only New York and New England into one RTO. 

GAS MATTERS 



• Eastern Enterprises-Colonial Gas Company DTE. 98-128 On December 24, 1998, 
Eastern Enterprises ("Eastern") and Colonial Gas Company ("Colonial") filed with the 
Department a petition for a merger between Eastern and Colonial and a rate plan for Colonial 
("Rate Plan") pursuant to G.L. c. 164, § 94. Colonial is a natural gas local distribution 
company, serving approximately 1 52,000 customers in 24 municipalities (Lowell and the 
surrounding towns and on Cape Cod). Eastern Enterprises is the parent company of Boston 
Gas Company and Essex County Gas Company which together serve approximately 580,000 
customers in Massachusetts. Under the Rate Plan proposal, Eastern proposed a ten-year "rate 
freeze," meaning that base rates would not be increased for ten years, during which Eastern 
would collect $ 1 5.3 million per year of merger related costs through charges to Colonial's 



198 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



customers. Over the succeeding thirty years, Colonial 's customers would be required to pay 
$12.3 million per year. 

Over the Division's objection, the Department approved the merger. The Attorney General 
appealed the decision to the Supreme Judicial Court, challenging the standards the Department 
used to assign the merger costs and acquisition premium to customers, and seeking a calculation 
of just and reasonable rates. By the close of the Fiscal Year the Department had not yet filed 
notice of assembly of the record. 

• Fitchburg Gas & Electric Light Company DTE 99-66-B On November 1 , 1 999, the 
Department opened an investigation into the Attorney General's allegation that Fitchburg had 
double-collected interest on gas inventories since 1987. After evidentiary hearings beginning in 
March 2000, the Department issued a decision on May 3 1, 2001 concluding that Fitchburg had 
doubled charged customers interest on gas inventory costs over a 1 2-year period in an amount 
equaling $675,000. The Department ordered the Company to refund of the over-collections to 
consumers with interest, a total refund of $ 1.5 million. The Company filed a notice of appeal to 
the Massachusetts Supreme Judicial Court. While the appeal is pending, the Company has 
commenced the Department ordered refunds. The Administrative Law Division is defending the 
Department against the Company's appeal. 

TELEPHONE MATTERS 



• Local Competition - Verizon's 271 Application to Enter the Long Distance Market 

In September 2000 and January 2001 , the Division participated in the Department's and the 
FCC's examinations of Verizon's application under Section 271 of the 1996 
Telecommunications Act to offer in-region long distance service in Massachusetts. The Division 
opposed the application on the grounds that Verizon's "Unbundled Network Element" ("UNE") 
prices were too high to promote local competition and were not based on Massachusetts- 
specific costs, and that Verizon had not complied with the Act's 14-point local market 
competitive checklist or shown that its entry into the long distance market was in the public 



The Department and FCC approved Verizon's application. The Division appealed the FCC's 
decision to the DC Circuit Court of Appeals on May 11, 2001 , asserting that the FCC acted 
arbitrarily, capriciously, and contrary to law in approving Verizon's Section 27 1 application. 
The Division appealed the FCC decision on three grounds: ( 1 ) the FCC should have considered 



199 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



evidence that the prices Verizon charged its competitors to lease its UNE services created a 
"price squeeze" which precluded profitable competitive entry by competitors; (2) the FCC 
erroneously concluded that Verizon's UNE switching rates did not exceed their costs; and (3) 
the FCC failed to consider evidence that Verizon had not satisfied its Section 27 1 obligations to 
resell DSL service to competitors. The appeal was pending at the end of the Fiscal Year. 

• Wholesale Competition Unbundled Network Elements D.T.E. 01-20 As part of a five- 
year cycle, the Department opened its investigation on January 1 2, 200 1 into Verizon's 
"Unbundled Network Element" ("UNE") prices, the prices that Verizon charges its competitors 
to lease parts of its network so that they can provide local telephone service. The Division 
intervened in the docket and participated filed comments on Verizon's proposal. No further 
action was taken and hearings were scheduled for the next Fiscal Year. 

• Wireless Multistate Inquiry The Division joined a 24-state investigation into the billing 
and advertising practices of Verizon Wireless (formerly Bell Atlantic Mobile), Cingular Wireless 
(formerly Cellular One, now part of Southwestern Bell Wireless), and Sprint PCS. On March 
2 1 , 200 1 , twenty-two Attorneys General sent inquiry letters to the carriers (two more states 
later joined the group) based upon consumer complaints about their advertising practices and 
related matters. Representatives from the carriers responded to the letters, and the states began 
exploring the issues. 

• Verizon's Fifth Price Cap Compliance Filing DTE 99-102 Residential Retail Rates m 
1995, the Department ordered Verizon (then NYNEX) to file six annual compliance filings to 
show its adherence to the Department's 1995 Price Cap Order's pricing rules. On November 
17, 1999, Verizon, then Bell Atlantic, filed its fifth annual price cap filing with the DTE, and 
included a reduction in the productivity adjustment factor to recover past penalties. The 
Division challenged the method used by the Company to calculate penalty charges that were 
incurred in 1995 and 1996. On August 3, 2000, the DTE issued its order, agreeing with the 
Division's position and ordering the Company to refund nearly $2 1 million to ratepayers beyond 
that which was mandated under the price cap rules. 

• Verizon's Alternative Regulation Plan DTE 01-31 Alternative Rate Regulation On 
February 27, 2001 , the Department opened an investigation into Verizon's retail intrastate 
telecommunications services for Massachusetts, and conducted four public hearings on 
Verizon's proposed plan to deregulate residential and business retail prices across 
Massachusetts. As part of the Division's involvement, the Division attended public hearings, 
procedural conferences, issued discovery, filed comments on the scope of the Department's 



200 



PUBLIC PROTECTION BUREAU REGULATED INDUSTRIES 



investigation. On June 2 1 , 200 1 , the DTE split the investigation into two phases. Phase I will 
examine whether there was sufficient competition to deregulate any of Verizon's retail services, 
and Phase II will look to see what alternative regulation plan would be appropriate for those 
services that should remain regulated. 



OUTREACH EFFORTS 

• Enhanced Outreach Initiative D.P.U. 90-3C, D.P.U. 91-80 As a result of a settlement 
between the Division and Commonwealth Electric Company over the operation of the Pilgrim 
Nuclear Power Plant, the Company agreed to make refunds to customers by starting a 
demonstration program designed to provide qualified low-income customers of Commonwealth 
Electric with: (i) a stipend to assist in paying overdue electric bills; (ii) energy efficiency services; 
and (iii) budget counseling. The $ 1 ,3 1 7,000 Enhanced Outreach program was designed to 
increase participation in energy efficiency programs and to aid Commonwealth Electric 
customers who may be experiencing an immediate need for financial assistance with overdue 
electric bills. In order to receive a stipend, a participant must first complete the energy 
efficiency program and budget counseling services. Designated social service agencies in 
Commonwealth Electric's service territory will administer the Program. The Department 
approved the program and implementation is scheduled for the next Fiscal Year. 

The Utilities Section of the Regulated Industries Division included George Dean, Chief; Joanna Connolly; 
Joseph Rogers; Stacey Book; Wilner Borgella; Matthew Buehler; Victoria Carter; Michelle Cataldo; 
Alexander Cochis; Norman D'Amours; Gerald D'Avolio, Jr.; Judith DePontbriand; Barbara Fain; Mary 
Flohr; Maureen Forbes; LydiaFroese; Stacey Gotham; JohnGrugan; Hilary Hershman; Veronica 
Kane; Patricia Kelley; Judith Laster; Leo Lawless; Peter Leight; Pamela Meister; Susan Melucci; 
Trevor Murray; Timothy Newhard; Thomas O'Brien; DoePichard; David Publow; KarlenReed; 
Danielle Solod; Anthony Taylor; and Rachel Weiner. 



201 



APPENDIX 



Attorney General's Formal Opinions 



FORMAL OPINIONS 




The Commonwealth of Massachusetts 
Office of the Attorney General 



One Ashburton Place 

Thomas F. Reilly BOSTON, MASSACHUSETTS 02 1 08- 1 698 

ATTORNEY GENERAL 



No. 00/01-1 

October 30, 2000 



Jane Perlov, Secretary 
Executive Office of Public Safety 
One Ashburton Place 
Boston, Massachusetts 02108 



Dear Secretary Perlov: 



You have requested my opinion on the scope of enforcement authority vested in the Office of 
the State Fire Marshal under the Commonwealth's comprehensive fire safety code as pertaining to 
state-owned and state authority-owned buildings. Specifically, you have asked whether the provisions 
ofG.L. c. 148 and 527 CM. R. §§ 1.00 etseq. apply to state-owned or state authority-owned 
buildings and, if so, whether the Marshal is responsible for enforcing the fire safety code in such 
buildings. You also pose a related third question of whether, if the provisions do so apply, and if the 
Marshal is responsible for enforcement thereof, the Marshal may delegate responsibility for such 
enforcement to local fire chiefs. Consistent with the unequivocal conclusion reached by former Attorney 
General George Fingold in a May 25, 1955, opinion given to the then Commissioner of Public Safety, 
1955 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 100 (1955), and for the reasons discussed below, it is 
my opinion that the Commonwealth is not bound by the relevant statutes and regulations and that, 
therefore, such provisions cannot be enforced as against the Commonwealth. The question of state 
authorities is not susceptible to a categorical answer, as discussed further below. 

Under GL. c. 22D, § 4, as well as various provisions contained in GL. c. 148, including §§9, 
10 and 28, the Board of Fire Prevention Regulations (the "Board") is authorized to enact regulations 
relative to fire prevention. Pursuant to that authority, the Board has enacted a comprehensive set of 
regulations codified in 527 C.M.R. §§ 1 .00 et seq., and commonly referred to as the State Fire Code 



APPENDIX FORMAL OPINIONS 



(the "Fire Code"). These authorizing statutes, unlike some other regulatory authorizations such as G.L. 
c. 143, §§ 2 A, 3 A, 93, 94, and 95 (authorizing the establishment of a state-wide building code and 
discussed in greater detail below), do not specifically indicate that regulations promulgated thereunder 
may be made applicable to state-owned buildings. Under G.L. c. 148, § 4, the Marshal, local fire 
chiefs, and their designees have the authority to enter "any building or other premises" in the perfor- 
mance of the duties imposed by the Fire Code or in furtherance of the purpose of any provision of the 
Code or statutes relating to fire prevention. 

A long line of opinions issued by my predecessors has taken the position that, absent an explicit 
legislative directive to the contrary, the Commonwealth and its agencies are immune from proscriptions 
set forth in statutes enacted by the Legislature in the exercise of its police powers. 1 94 1 Op. Att'y 
Gen., Rep. A.G., RD. No. 1 2 at 1 1 8 ( 1 94 1 ) (regulations pertaining to safety devices for hot water 
tanks do "not apply to buildings owned and used by the Commonwealth"); see also 1 942 Op. Att'y 
Gen., Rep. A.G., RD. No. 1 2 at 88 ( 1 942) (statute authorizing land takings by county commissioners 
cannot be used to take land held by the Commonwealth as a state forest); 1935 Op. Att'y Gen., Rep. 
A.G., RD. No. 12 at 38 (1935) (state-owned buildings not subject to general laws relating to the 
licensing of plumbers); 1933 Op. Att'y Gen., Rep. A.G., RD. No. 12 at 38 (1933) (no state license 
required in order for a prisoner to operate a steam shovel at a state prison colony); 1932 Op. Att'y 
Gen., Rep. A.G., RD. No. 1 2 at 86 ( 1 932) (statute requiring local plumbing and wiring licenses does 
not pertain to work done on state-owned buildings). This rule is closely related to the rule that the 
Commonwealth cannot be sued in its own courts except in strict accordance with statute. In that 
context also, "[t]he rules of construction governing statutory waivers of sovereign immunity are stringent. 
. . . Consent to suit must be expressed by the terms of a statute, or appear by necessary implication 
from them." Woodbridge v. Worcester State Hospital, 384 Mass. 38, 42 ( 1981). Accord C & M 
Construction Co. v. Commonwealth, 396 Mass. 390, 392 (1985). Under G.L. c. 148, § 30, which 
authorizes judicial enforcement of the Fire Code, there is no express or implied waiver of the 
Commonwealth's immunity to suit. 1 

Moreover, I note that many sections of G.L. c. 148 refer to "persons" being subject thereto. 
See e.g., G.L. c. 148, § 9 ("Such rules and regulations shall require persons keeping, storing, using . . . 



1 It is unsettled in the Commonwealth whether sovereign immunity would apply when one state entity 
sought to bring enforcement proceedings against another. Accordingly, I do not base my conclusions on the 
doctrine of sovereign immunity per sc but on an examination of the relevant statutes to see if they authorize 
application of the Fire Code to the Commonwealth with the clarity that one would expect had the Legislature intended 

such a result. 



FORMAL OPINIONS 



explosives to make reports to the department "); G.L. c. 148, § 3 1 ("Any person aggrieved by an 

act, rule, order or decision of the head of a fire department . . . may appeal to the marshal, who shall 

make all necessary and proper orders thereon "). The Commonwealth and its agencies are not 

usually deemed to be encompassed by general terms such as "person." Sarvis v. Boston Safe Deposit 
& Trust Co., 47 Mass. App. Ct. 86, 96 n. 10(1999). For this reason, statutes applying to "persons" 
do not subject government entities to liability. See, e.g., Perez v. Boston Housing Authority, 368 Mass. 
333, 339 ( 1975)(enforcement action under the state sanitary code could not be maintained against the 
Commonwealth and its Commissioner of Community Affairs because the Commonwealth is not an 
"individual, trust or corporation, partnership, association, or other person" under the provisions of G.L. 
c. 11 1, § 127N); Fran's Lunch, Inc. v. Alcoholic Beverages Control Commission, 45 Mass. App. Ct. 
663, 665 (1 998)(local police and ABCC were not "persons" within the meaning of statute criminalizing 
minor's purchase of alcohol for use of another "person"; minor's participation in police/ABCC sting 
operation thus did not violate law); Kilbane v. Secretary of Human Services, 14 Mass. App. Ct. 286, 
287-88 (1982)(affuming dismissal of action against Secretary of Human Services because Common- 
wealth is not a "person" within the meaning of G.L. c. 266, §91, which deals with false advertising). 

Absent express statutory language, there is also a well established presumption against 
interpreting a statute in a manner that delegates to municipalities any authority to regulate the Common- 
wealth. This presumption is traced back to the seminal case of Teasdale v. Newell & Snowling 
Construction Co., 192 Mass. 440 ( 1 906). In that case, the City of Quincy Board of Health attempted 
to bar a state contractor from establishing a temporary stable to be used during its work on a project to 
create park land because the contractor had not obtained a stable license from the Board as required by 
statute. 2 The effort failed because "[i]t is not to be presumed that the Legislature intended to give to the 
local licensing board the authority to thwart the reasonably necessary efforts of the park commissioners 
to perform their duty as agents of the State." Id. at 443. 

Later, in Medford v. Marinucci Bros., 344 Mass. 50, 54 (1962), the City sought "to use its 
delegated powers," i.e., its zoning by-laws and building code, to block a contractor and railroad from 
transporting fill to land owned by the Commonwealth (there to be stored temporarily for use in building 



2 The statute, R.L. c. 102, § 69, read: "No person shall erect, occupy or use for a stable any building in a city 
whose population exceeds twenty-five thousand unless such use is licensed by the board of health of said city, and, 
in such case, only to the extent so licensed." 



FORMAL OPINIONS 



a bridge across the Mystic River), alleging violations of its zoning ordinances and its building code. 
Following Teasdale, opinions of the Attorney General, 3 and the rule generally followed in other 
jurisdictions, the Court concluded that "[t]he [local] ordinance could not control action by the Common- 
wealth or by its agents " 344 Mass. at 54; 4 see also 1980/81 Op. Atty. Gen. No. 16, Rep. A.G., 

P.D. No. 1 2 at 143 ( 1 98 1 ) (Department of Environmental Management was not authorized to enter 
into contract to acquire land from Mashpee, under which the Department would agree that rules 
governing use of land would conform to town's present and future rules, regulations and by-laws, 
because Department could not know whether future rules of the town would be consistent with 
Department's mandate). 

Although the Legislature may elect to waive the Commonwealth's exemption from regulation in 
particular instances, such a waiver is not to be presumed or inferred, but must be made explicit. In 
Inspector of Buildings of Salem v. Salem State College, 28 Mass. App. Ct. 92 (1989), for example, 
the Appeals Court concluded that a provision of G.L. c. 40A, § 3, by which religious or educational 
uses on public land are subject to bulk and height restrictions imposed by zoning ordinances, applies to 
private religious or educational uses on public land, and not to public buildings, such as those of the state 
college. Referring to prior Supreme Judicial Court decisions such as Teasdale and Medford v. 
Marinucci Bros., the Court said: "All those cases assert the supremacy of the State over local land use 
regulation in connection with State construction projects, unless the Legislature has made express 
provision to the contrary." Id. at 97. The Court concluded that, measured against this standard, 
"[c]ertainly the language of § 3 does not amount to the express and unmistakable suspension of the 
usual State supremacy which the Teasdale, Marinucci, and County Commissioners 5 cases require." Id. 

An example of the Legislature's explicit waiver of the Commonwealth's exemption from 
regulation is found in G.L. c. 143, the statute that authorizes the promulgation and enforcement of a 



3 The Court cited the following opinions: 1958 Op. Att'y Gen, Rep. A.G., P.D. No. 12 at 60 (1958) (Boston's 
superintendent of wires docs not have jurisdiction over wiring in state armory); 1 958 Op. Att'y Gen., Rep. A.G., P.D. 
No. 12 at 65 (1958) (municipal inspector of wiring does not have jurisdiction over installation of wiring in and on 
property of the Commonwealth); 1949 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 29 (1949) (Public Works may erect 
building for storage of road equipment notwithstanding town's zoning by-laws); 1942 Op. Att'y Gen., Rep. A.G., P.D. 
No. 12 at 73 (1942) (Department of Conservation not bound to comply with local ordinances in operation of parks and 

forests). 

4 Indeed, the Court thought the principle so firm that it held inapplicable a provision of the contract between 
the Commonwealth and the contractor requiring compliance with municipal ordinances. 

5 Referring to County Commissioners of Bristol v. Conservation Commission of Dartmouth, 380 Mass. 706 
(1980), in which the Supreme Judicial Court held that a proposal to build a new Bristol County jail was not subject to 
the Town of Dartmouth's zoning by-laws. 



FORMAL OPINIONS 



state-wide building code. Section 2A of G.L. c. 143 indicates that "[t]he provisions of [G.L. c. 143] 
relative to the safety of persons in buildings shall apply to buildings and structures, other than the state 
house, owned, operated or controlled by the commonwealth, and to buildings and structures owned, 
operated or controlled by any department, board or commission of the commonwealth, or by any of its 
political subdivisions, in the same manner and to the same extent as such provisions apply to privately 
owned or controlled buildings occupied, used or maintained for similar purposes." Chapter 143 further 
vests inspectors in the Division of Inspections of the Department of Public Safety with authority to 
enforce the state building code as to buildings "owned by the commonwealth or any departments, 
commissions, agencies or authorities of the commonwealth." G.L.c. 143, §3 A. Similarly, in the 
context of the state-wide regulation of the siting of solid waste disposal facilities, the Legislature chose to 
use explicit language to indicate that the procedures regarding the Department of Environmental 
Protection's oversight of the location and operation of such facilities are applicable to facilities "owned 
or operated by an agency of the commonwealth." G.L.c. 111,§ 150A; see also G.L. c.22, § 13 A 
(subjecting "public buildings," defined to include buildings constructed by the Commonwealth, to 
regulations of the Architectural Access Board). 

Furthermore, even in the fire prevention arena, the Legislature has taken great care to be explicit 
in subjecting state-owned buildings to statutory requirements and proscriptions. In particular, the 
Legislature adopted a special provision to make G.L. c. 148, § 26AVi, regarding the retrofitting of 
existing buildings for sprinklers, applicable to buildings and structures owned by the Commonwealth. 
St. 1 993, c. 1 5 1 , § 1 24 ("Notwithstanding the provisions of any general or special law to the contrary, 
the entire gross square footage of any building or structure owned by the commonwealth and subject to 
the provisions of section twenty-six A'A of chapter one hundred and forty-eight of the General Laws 
shall comply with the provisions of said section twenty-six A l A not later than March thirtieth, nineteen 
hundred and ninety-seven."). A time-tested maxim of statutory construction is that "[a] statutory 
expression of one thing is an implied exclusion of other things omitted from the statute." Glorioso v. 
Retirement Board of Wellesley, 401 Mass. 648, 650 (1988). In other words, if the Legislature intends 
to make the Commonwealth subject to any provision contained in G.L. c. 148, it knows exactly how to 
accomplish this result. See Commonwealth v. Dodge, 428 Mass. 860, 865 (1999)("[W]here the 
Legislature has employed specific language in one [section of an act], but not in another, the language 
should not be implied where it is not present.") (internal quotation omitted). Each of the factors stated 
above supports the conclusion that the provisions of the Fire Code do not apply to state-owned 
buildings. 

You have also asked whether the provisions of the Fire Code apply to "state authority-owned 
buildings." With respect to the term "state authority," I understand you to mean "authorities established 



FORMAL OPINIONS 



to perform vital government functions for usually large geographical areas," such as the Massachusetts 
Bay Transportation Authority, the Massachusetts Turnpike Authority, and the Massachusetts Port 
Authority, as opposed to the "category of authorities" consisting "of those which are directly established 
by local governing bodies or officers pursuant to enabling legislation," such as local housing authorities 
and local redevelopment authorities. See 1978/79 Op. Att'yGen.No. 30, Rep. A.G.,P.D.No. 12 at 
1 64 ( 1 979), at 1 65- 1 66. Authorities which "by definition" have "expansive geographical jurisdiction or 
scope of functions, or both," and "whose services and functions are of vital interest to the Common- 
wealth as a whole," Id. at 1 66, are often considered to be public agencies, at least for purpose of 
construing and applying particular statutes. See e.g., Department of Community Affairs v. Massachu- 
setts State College Building Authority, 378 Mass. 418, 426 ( 1979)(public character of college building 
authority require it to be included within the definition of public agency as the term appears in G.L. c. 
79A); Massachusetts Turnpike Authority v. Commonwealth, 347Mass. 524, 529(1 964)(statute 
relieving Commonwealth from payment of damages for taking public land for highway purposes applies 
to land owned by Turnpike Authority). Notwithstanding this general proposition, state authorities are 
creatures of individual legislative enactments and, accordingly, the specific organic statute should be 
reviewed to determine whether or not the Code may be applicable to a particular authority. See e.g., 
G.L. c. 8 1 A, § 1 (Massachusetts Turnpike Authority "shall not be subject to the supervision and 
regulation of [the Executive Office of Transportation and Construction] or any other department, 
commission, board, bureau or agency except as specifically provided in any general or special law to 
the contrary."); G.L. c. 161 A, § 3(I)(exemptingthe Massachusetts Bay Transportation Authority, in 
providing mass transportation service, from jurisdiction and control of the Department of Public Utilities 
except as to safety of equipment and operations); St. 1956, c. 465, § 2 (Massachusetts Port Authority 
not subject to supervision or regulation of any state agency except as expressly provided in act creating 
the Authority). 

Finally, you have asked whether, if the provisions of the Fire Code do apply to buildings owned 
by the Commonwealth or state authorities, the Marshal is responsible for enforcing the Code on those 
buildings and, if so, may such enforcement authority be delegated to local fire chiefs. Because I have 
opined that the Fire Code does not apply to state-owned buildings, this question does not require an 
answer as to such buildings. With respect to buildings owned by state authorities, the answer may once 
again turn on the wording of the provisions of a particular authority's organic statute, and, therefore, I 
can offer no categorical answer here. 

In sum, based upon my review of the relevant provisions of G.L. c. 148, 1 conclude that the 
provisions of the State Fire Code are not applicable to buildings owned by the Commonwealth, and that 
such provisions may or may not be applicable to buildings owned by particular state authorities, 



FORMAL OPINIONS 



depending upon the specific organic statute. I recognize, of course, the critical importance of ensuring 
that such buildings are safe both for employees and members of the public. Nothing in my opinion bars 
the officials controlling those buildings from voluntary compliance with the Fire Code. You and the 
Marshal may also wish to consider whether to propose legislation making the Code apply to such 
buildings and giving enforcement authority to the Marshal. 



Sincerely, 



Thomas F. Reilly 



y 



APPENDIX 



FORMAL OPINIONS 




Thomas F. Reilly 
ATTORNEY GENERAL 



The Commonwealth of Massachusetts 
Office of the Attorney General 

One Ashburton Place 
Boston, Massachusetts 02108-1698 



No. 00/01-2 
April 25, 2001 

Howard W. Koh, MD, MPH 

Commissioner 
Department of Public Health 
250 Washington Street 
Boston, MA 02108-4619 

Dear Commissioner Koh: 

You have requested an opinion on whether local boards of health have jurisdiction to enforce 
the provisions of the State Sanitary Code against state-owned facilities, indicating that your request was 
prompted by local boards ' efforts to inspect swimming pools located at facilities of the University of 
Massachusetts. Consistent with the conclusions reached in a long line of Attorney General opinions, 
including one issued to the Secretary of Public Safety on October 30, 2000, 1 conclude that the 
Commonwealth and its agencies are exempt from G.L. c. 1 1 1 , § 1 27 A, the statute authorizing the 
Department of Public Health to promulgate the Sanitary Code, and that local boards of health do not 
possess enforcement authority over property owned by the University of Massachusetts with respect to 
the provisions of the Sanitary Code. I recognize, of course, the importance of ensuring that facilities 
owned by the Commonwealth or its agencies are maintained in a manner that protects the health and 
well-being of the public. Nothing in my conclusion would prevent the officials in control of such facilities 
from voluntarily complying with the provisions of the Sanitary Code. In addition, given that my 
conclusion is based upon the language of the relevant statute, you may wish to consider whether to 
propose legislation expressly making the Sanitary Code applicable to such facilities. 



In reviewing G.L. c. 75, the enabling statute for the University of Massachusetts, the Supreme 
Judicial Court has concluded that the University is "an agency of the Commonwealth." McNamara v. 



FORMAL OPINIONS 



Honeyman, 406 Mass. 43,47(1 989); see also Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 9 
(1992). ' The University's enabling statute provides that the University's Board of Trustees, in 
exercising its statutory authority, "shall not in the management of the affairs of the university be subject 
to, or superseded by, any other state agency, board, bureau, commission, department or officer," with 
certain exceptions not relevant hereto. G.L. c.75,§ l;see 1972/73 Op. Att'yGen.No. 2, Rep. A.G., 
P.D. No. 1 2 at 42-44 ( 1 972) (discussing the broad scope of the Board of Trustees' statutory authority 
underG.L.c.75);seealsoSt. 1960, c. 773, §2 (containing similarprovision for University of 
Massachusetts Building Authority). 

In relevant part, G.L. c. 1 1 1 , § 1 27 A, provides that the Department of Public Health "shall 
adopt, and may from time to time amend, public health regulations to be known as the state sanitary 
code," which code "shall deal with matters affecting the health and well-being of the public in the 
commonwealth in subjects over which the department takes cognizance and responsibility." Id. Local 
boards ofhealth "shall enforce said code in the same manner in which local health rules and regulations 
are enforced, but, if any such local boards fail after the lapse of a reasonable length of time to enforce 
the same, the department may in like manner enforce said code against any violator." Id. 

As noted above, several prior Attorney General opinions conclude that, absent a clear 
legislative directive to the contrary, the Commonwealth is to be considered exempt from a generally 
appl icable regulation promulgated under the authority of statutes enacted by the Legislature in the 
exercise of its police powers. See 2000 Op. Att'yGen.No. 1 (Oct.30, 2000) (concluding that the 
State Fire Code promulgated under G.L. c. 1 48 does not apply to state-owned buildings) and opinions 
cited therein. 2 This rule is closely related to the rule that the Commonwealth cannot be sued in its own 
courts except in strict accordance with statute. In that context also, "[t]he rules of construction 
governing statutory waivers of sovereign immunity are stringent. . . . Consent to suit must be expressed 



Similarly, to the extent that the University of Massachusetts Building Authority retains any control over 
the University's facilities, I note that the Authority was constituted by the Legislature as "a public instrumentality 
and the exercise by the Authority of the powers conferred by [its enabling legislation] shall be deemed and held to be 
the performance of an essential governmental function." St. 1960, c. 773, § 2; see also Department of Community 
Affairs v. Massachusetts State College Building Authority, 378 Mass. 4 1 8, 426 ( 1 979) (public character of College 
Building Authority requires inclusion within definition of term "public agency" under G.L. c. 79A). 

This principle does not apply to municipalities. See, e.g., 1 965/66 Op. Att'y Gen. No. 1 2, Rep. A.G., P.D. No. 
1 2 at 36 1 (1966) (concluding that State Sanitary Code applies to public school cafeterias, where neither the statute nor 
the Code exempts schools or cafeterias). 



FORMAL OPINIONS 



by the terms of a statute, or appear by necessary implication from them." Woodbridge v. Worcester 
State Hospital, 384 Mass. 38, 42 (198 1); accord C & M Construction Co. v. Commonwealth, 396 
Mass. 390, 392 ( 1 985); see also Onofrio v. Department of Mental Health, 4 1 1 Mass. 657, 659 ( 1 992) 
(holding statute that waives public employers' exemption from liability, bars prejudgment interest, and is 
silent on post-judgment interest does not permit award of post-judgment interest by necessary 
implication, given that such interest is not an element of damages). 

As with the doctrine of sovereign immunity, although the Legislature may elect to waive the 
Commonwealth's exemption from regulation in particular instances, such a waiver is not to be presumed 
or inferred, but must be explicit. See, e.g., Perez v. Boston Housing Authority, 368 Mass. 333, 338, 
340 ( 1 975) (concluding that "the Legislature did not intend to establish liability on the part of the 
Commonwealth or its departments" in enacting G.L. c. 1 1 1 , § 1 27N, the statute authorizing tenants of 
public housing to bring actions to enforce the Sanitary Code, after finding that the terms of the statute 
"are plainly inappropriate to identify the State or any of its agencies"); Inspector of Buildings of Salem v. 
Salem State College, 28 Mass. App. Ct. 92, 97 ( 1 989) (concluding that the language of G.L. c. 40A, § 
3 , the State Zoning Act, does not amount to the "express and unmistakable suspension" which would be 
required to find an express waiver of the usual State supremacy over land use regulation). 

There is no express statement in G.L. c. 1 1 1 , § 1 27 A, indicating that the Commonwealth is 
subject to the provisions of any regulations adopted pursuant thereto. 3 By contrast to this provision, 
two other provisions of G.L. c. 1 1 1 contain express waivers of the Commonwealth's exemption from 
regulation, as discussed below. Thus, if the Legislature intends to make the Commonwealth subject to 
any provision of G.L. c. 1 1 1 , it knows exactly how to do so. See Commonwealth v. Dodge, 428 
Mass. 860, 865 ( 1 999) ("[Wjhere the Legislature has employed specific language in one [section of an 
act], but not in another, the language should not be implied where it is not present.") (internal quotation 
omitted). 



I recognize that Chapter V of the State Sanitary Code, 105 C.M.R. § 435.00 et seq., by which the Department 
of Public Health established minimum standards for swimming pools, provides that no person shall operate or 
maintain a swimming pool without obtaining a permit from the Board of Health on a form prescribed by the 
Commissioner of Public Health, and defines the term "person" to include "a city, town, county, or other governmental 
unit." 105 C.M.R. §§ 435.01; id., § 435.21. However, even if the Department had expressly included the 
Commonwealth and its agencies within this definition, the limits to the scope of the Department's authority in such 
matters are set by the enabling statute, G.L. c. 1 1 1 , § 127A. 



FORMAL OPINIONS 



In marked contrast to Section 127A, Section 142EofG.L.c. Ill contains an express waiver 
of the Commonwealth's exemption from public health regulation. In Perez v. Boston Housing Authority, 
368 Mass. at 338-39, the Supreme Judicial Court compared Sections 142E and 127N of G.L. c. 1 1 1 . 
With reference to air pollution control regulations promulgated pursuant to Section 142E of the statute, 
the Court stated that "when the Legislature did in fact determine to apply public health regulations, 
enacted pursuant to G.L. c. 1 1 1 , to State agencies as well as other entities, it expanded the coverage 
... to include '[a]ll departments, agencies, commissions, authorities and political subdivisions.'" Id. at 
338-39. By its terms, Section 1 42E creates a regulatory scheme that "is universally applicable to 
private and public entities." City of Boston v. Massachusetts Port Authority, 364 Mass. 639, 658 
( 1 974). The air pollution control regulations are thus "enforceable against publ ic bodies to the same 
extent that they are enforceable against individuals and private businesses." Id. at 653." 

Similarly, Section 150AofG.L.c. 1 1 1 contains an express waiver of the Commonwealth's 
exemption from regulation. In the context of the state-wide regulation of the siting of solid waste 
disposal facilities, the Legislature specified that the procedures regarding the Department of 
Environmental Protection's oversight of the location and operation of such facilities are applicable to 
facilities "owned or operated by an agency of the commonwealth." G.L. c. 1 1 1 , § 1 50 A. In like 
manner, G.L. c. 1 43, the statute that authorizes the promulgation and enforcement of a state-wide 
building code, contains an explicit waiver of the Commonwealth's exemption from regulation. In 
particular, Chapter 1 43 states that its provisions 

relative to the safety of persons in buildings shall apply to buildings and structures, other 
than the state house, owned, operated or controlled by the commonwealth, and to 
buildings and structures owned, operated or controlled by any department, board or 
commission of the commonwealth, or by any of its political subdivisions, in the same 
manner and to the same extent as such provisions apply to privately owned or 
controlled buildings occupied, used or maintained for similar purposes. 



G.L.c. 143, §2A. By contrast to such provisions, G.L. c. 1 1 1 , § 127A, the statute by which the 
Department of Public Health promulgated the Sanitary Code, contains no such express waiver of the 
Commonwealth's exemption from regulation. 



4 In particular, such regulations apply to the Port Authority given that the statute expressly includes 

authorities within its terms. Id. at 653, 657. 



FORMAL OPINIONS 



Furthermore, the well established presumption against delegation to municipalities of any 
authority to regulate the Commonwealth supports this conclusion, given that G.L. c. 1 1 1 , § 1 27A, vests 
local boards of health with primary enforcement of the Sanitary Code. This presumption is traced back 
to the seminal case of Teasdale v. Newell & Snowling Construction Co., 1 92 Mass. 440 ( 1 906), in 
which the City of Quincy Board of Health attempted to bar a state contractor from establishing a 
temporary stable to be used during its work on a project to create parkland because the contractor had 
not obtained a stable license from the Board as was assertedly required by statute. That effort failed 
because "[i]t is not to be presumed that the Legislature intended to give to the local licensing board the 
authority to thwart the reasonably necessary efforts of the park commissioners to perform their duty as 
agents of the State." Id. at 443. 

By contrast to G.L. c. 1 1 1 , § 1 27 A, which vests primary enforcement of the Sanitary Code 
with local boards of health, several statutory provisions with an express waiver of the Commonwealth's 
exemption from regulations provide for enforcement of the regulations by the relevant state agency as to 
state-owned property, while providing for local enforcement as to all other property, so as to avoid the 
potential for local interference with state work. For example, G.L. c. 143 vests inspectors in the 
Division of Inspections of the Department of Public Safety with authority to enforce the state building 
code as to buildings "owned by the commonwealth or any departments, commissions, agencies or 
authorities of the commonwealth," while the statute vests local inspectors with authority to enforce the 
code as to all other buildings. G.L. c. 143, §3 A. Similarly, Section 150A of G.L. c. Ill vests the 
Department of Public Health with authority to determine whether to assign as a site for a solid waste 
disposal facility a place owned or operated by an agency of the Commonwealth, while the statute vests 
local boards ofhealth with authority to make such determinations for any other place. Id. 

Local boards ofhealth have primary responsibility for enforcing the Sanitary Code under G.L. 
c. 1 1 1 , § 1 27 A. The potential for local interference with state work is one of the grounds on which 
Massachusetts courts have found the Commonwealth and its agencies to be exempt from proscriptions 
set forth in a generally applicable statute enacted by the Legislature in the exercise of its police powers, 
absent explicit legislative directive to the contrary. See, e.g., Inspector of Buildings of Salem v. Salem 
State College, 28 Mass. App. Ct. at 97. It is significant in this regard that the University's enabling 
statute prevents interference with the Board of Trustees, in exercising its statutory authority to manage 
the University 's affairs, from being "subject to, or superseded by," state agencies or departments." 



APPENDIX FORMAL OPINIONS 

G.L. c. 75, § 1 . In light of that provision, it would be anomalous to suppose that the Legislature 
intended to subject the University to local supervision, absent explicit language to that effect. 5 

Accordingly, I conclude that facilities located on properly owned by the University of 
Massachusetts are not subject to the Sanitary Code, and that the local boards of health therefore lack 
authority to enforce the provisions of the Code against such property. As mentioned above, the officials 
in control of such facilities may elect to comply voluntarily with the provisions of the Sanitary Code, and 
you may wish to consider whether to propose legislation expressly making the Sanitary Code applicable 
to such facilities. 



Sincerely, 



Thomas F. Reilly 



7 



5 I am aware of an order issued in December of 1983 by the Hampshire Superior Court in Trejo v. Penza (C. A. 

No. 16871), an action brought by a student of the University of Massachusetts against the local housing inspector, 
seeking an order compelling an inspection of the student's apartment on campus. After the court denied the 
student's request for class certification, the court entered a one-page order on the student's motion for summary 
judgment, declaring that the local board of health is obligated to inspect dwellings located within the Town, upon 
request, including dwelling units owned or controlled by the University. Neither the University or the Department of 
Public Health were parties to the case, and no appeal was taken from the court's decision. In addition, the order does 
not address the issues raised herein. For these reasons, it is my opinion that the order is not controlling here. 



APPENDIX 



FORMAL OPINIONS 



j£X 




Thomas F. Reilly 
ATTORNEY GENERAL 



The Commonwealth of Massachusetts 
Office of the Attorney General 

One Ashburton Place 
Boston, Massachusetts 02108-1698 



No. 00-01/3 
May 29, 2001 



Joseph E. Connarton 

Executive Director 

Public Employee Retirement Administration Commission 

5 Middlesex Avenue, 3rd Floor 

Somerville,MA02145 

Dear Mr. Connarton: 

You have requested an opinion regarding the proper scope of field examinations conducted of 
the Pension Reserves Investment Management ("PRIM") Board by the Public Employee Retirement 
Administration Commission ("PERAC") pursuant to G.L. c. 32, § 2 1 ( 1 )(a) (2000 ed.). In the first two 
field examinations, covering the period from 1 988 through 1 993, PERAC reviewed the PRIM Board's 
financial condition. You have asked whether PERAC, in conducting subsequent field examinations, is 
authorized to review the procurement of investment management services by the PRIM Board, given 
that G.L. c. 32, § 23(2 A)(h), prevents the investment management policies adopted by the PRIM 
Board from being subject to PERAC's rules or regulations. I conclude that, in conducting field 
examinations of the PRIM Board, PERAC is authorized to review contracts issued by the PRIM Board 
with investment managers and advisors, as well as fees paid thereunder, but lacks authority to review 
the process adopted by the PRIM Board for the selection of particular investment managers or 
advisors. 



A. PERAC's Statutory Authority 

In analyzing this issue, I start with an overview of the relevant statutory provisions. PERAC's 
predecessor was established by Chapter 630 of the Acts of 1 982 as a division within the Executive 
Office of Administration and Finance to improve the administration of the public retirement systems 



APPENDIX FORMAL OPINIONS 



operating in Massachusetts. 1 G.L. c. 7, §§ 4A, 49, 50. PERAC, which was created by Chapter 306 of 
the Acts of 1 996, has general responsibility forthe administration of the public employee retirement 
systems under G.L. c. 32, see Barnstable County Retirement Bd. v. Contributory Retirement Appeal 
Bd. , 43 Mass. App. Ct. 34 1 , 345 ( 1 997), and has promulgated a comprehensive series of rules and 
regulations governing the administration of such systems. See G.L. c. 7, § 50; G.L. 32, § 2 1 (4); 840 
C.M.R. §§ i. 00-27.04. In addition to the Teachers' Retirement Board and the State Board of 
Retirement, which serve the Massachusetts State Teachers' and Employees' Retirement Systems 
("MASTERS"), there are more than one hundred county, district, and municipal retirement boards 
(collectively, the "local boards"). 

Among its responsibilities, PERAC is charged with overseeing the administration ofbenefits by 
retirement boards, G.L. c. 32, § 20, and is authorized to review certain pensions granted by such 
boards. Id., § 2 1 ( 1 )(d). Several of the rules and regulations promulgated by PERAC govern the 
administrative procedures, financial operations, records and reports of the retirement boards, see, e.g., 
840 C.M.R. §§4.01-4.04 (financial operation/standard methods of accounting); id. §§5.01-5.05 
(records and reports), including the administration ofbenefits. 2 See, e.g., 840 C.M.R. §§6.00-6.14 
(rules of disclosure of personal information), id. §§ 7.00-7. 1 3 (elections in county and regional 
retirement systems), id. §§ 10.00-10.21 (rules for disability retirement). By setting forth methods for 
the local boards to account for cash receipts, for example, PERAC places such boards on the same 
footing and allows for ready comparisons of investment results. Barnstable County Retirement Board v. 
Contributory Retirement Appeal Bd., 43 Mass. App. Ct. at 347. PERAC also produces an annual 
report of the investment portfolio, the return on investment, and the management performance of each 
retirement system. G.L. c. 32, § 2 1 . 

In addition to overseeing the administration ofbenefits, PERAC is also authorized to conduct 
field examinations of each board: 

The Commissioner of PERAC or his agent shall conduct an in-depth field examination 
of each board at intervals not exceeding three years to ascertain its financial condition, 
its ability to fulfill its obligations, whether all parties in interest have complied with the 
laws applicable thereto, and whether the transactions of the board have been in 
accordance with the rights and equities of those in interest. 



PERAC was formerly the Division of Public Employee Retirement Administration. For consistency, I will 
refer to this agency as "PERAC" throughout. 

Unlike the local boards, the PRIM Board has no responsibility for the administration of pension benefits. 



FORMAL OPINIONS 



G.L. c. 32, § 2 1 ( 1 )(a). In this context, the statutes governing the respective duties and 
responsibilities of PERAC and the PRIM Board, as well as the rules and regulations 
promulgated by PERAC, constitute "laws applicable" to the parties in interest. PERAC 
has promulgated regulations governing field examinations, at 840 C.M.R. § § 25.0 1 - 
25.73. Such examinations, conducted in accordance with generally accepted auditing 
standards, are intended "to determine the [retirement] system' s financial condition, to 
monitor performance under the terms of its legal, contractual and fiduciary requirements, 
and to examine the system's effectiveness in achieving the intended results established 
byM.G.L.c. 32." 840 C.M.R. §25.01. After conducting such an examination, 
PERAC issues an audit report setting forth the results of the examination, including any 
noted deficiencies. See, e.g., 840 C.M.R. § 25.60 (regarding notes to audit report). 

When a board retains a certified public accountant ("CP A") to conduct an audit, PERAC may 
elect to accept such audit in lieu of a field examination, subject to certain conditions. G.L. c. 32, § 
21(l)(a); see also 840 C.M.R. §25.01. The protocol adopted by PERAC to determine whether to 
accept an audit conducted by a CPA in lieu of a field examination by PERAC is designed to assure that 
the examination is conducted pursuant to the statutory requirements. See PERAC Memo # 47/1 999 
(Guidance on Retirement Systems Audits Performed by Certified Public Accounting Firms). 3 If 
PERAC determines that such audit was not conducted in accordance with its procedures, then it may 
elect to perform a supplemental field examination for any remaining issues. G.L. c. 32, § 2 1 ( 1 )(a); 840 
C.M.R. § 25.01 ; PERAC Memo # 47/1999 at 1 4. The apparent purpose of this protocol is to avoid 
the need for PERAC to duplicate work already completed by a CPA, while at the same time providing 
assurances that the CPA conducted such work in accordance with PERAC's requirements. If PERAC 
elects to accept a CPA's audit, then said audit "shall be deemed to be the [field] examination required 
by [G.L. c. 32, § 21(l)(a)]." Id; see also 840 C.M.R. § 25.01. 

B. The PRIM Board and the PRIT Fund 

The PRIM Board was created by Chapter 66 1 of the Acts of 1 983 to improve the investment 
returns on pension assets and to reduce the unfunded pension liabilities of the Commonwealth. This 



For example, the CPA conducting the audit must complete an internal control questionnaire developed by 
PERAC, 840 C.M.R. § 25. 10; PERAC Memo # 47/1999 at 1 3; must file the examination with PERAC within ten days of 
making the report to the board, G.L.c.32, §21(1 )(a); and must meet with representatives of PERAC within thirty days 
of filing the report, while providing copies of the work papers and schedules at the time of the meeting. 840 C.M.R. § 
25.01. 



APPENDIX FORMAL OPINIONS 



legislation also established the Pension Reserves Investment Trust ("PRIT") Fund as an investment fund 
for the Commonwealth, to be managed by the nine-member PRIM Board. G.L. c. 32, § 23(2A) (2000 
ed.). By statute, each of the local retirement systems may elect to invest some or all of its pension assets 
in the PRIT fund. G.L. c. 32, § 23(2)(b) (2000 ed.). In 1 997, the trust that held the assets of 
MASTERS merged with the PRIT Fund, Chapter 3 1 5 of the Acts of 1 996, which became the sole 
investment vehicle for MASTERS assets. G.L.c.32,§22(8)(a). As of December 31, 1999,the 
aggregate market value ofthe retirement system investments exceeded $43.8 billion, of which 72% was 
managed by the PRIM Board and the remaining 28% by the local retirement boards. See State Auditor's 
Report No. 99-1315-3 at 3, 5. 

By statute, the PRIM Board is authorized to employ such investment advisors, legal counsel, and 
consultants as it deems necessary. G.L. c.32,§ 23(2A)(e)(iii). Each year, the PRIM Board files 
quarterly reports with the House and Senate Committees on Ways and Means, G.L. c. 32, § 23(2A) 
(e)(xi), and files its annual budget for approval by these committees. Id., § 23(2A)(e)(vi). The 
quarterly reports include a 1 isting ofbrokerage transactions and of fees paid to investment managers and 
consultants, as well as a detailed investment portfolio analysis describing all holdings in the PRIT fund. Id., 
§23(2A)(e)(xi). 

C. PERAC'sInvestmentOversightofBoardsPriorto 1987 

In the same legislation that created the PRIM Board and the PRIT Fund, the Legislature 
established a pension advisory unit of PERAC, which is responsible for advising local retirement boards 
on investments, measuring the investment performance ofthe retirement systems, establishing fund 
management policies, and granting qualified boards an exemption from certain statutory restrictions on 
investments. G.L.c. 7, §50, as amended by Chapter 661 ofthe Acts of 1983. As authorized by statute, 
PERAC has promulgated rules and regulations to implement its oversight of investment management 
decisions made by local retirement systems. G.L.c. 7, § 50; see, e.g., 840 CM. R. §§ 16.00-16.10 
(investment advice and management); id. § § 1 7.00- 1 7.04 (standard rule for the formation of investment 
policy and statement of investment objectives); id. §§ 1 8.00- 1 8.03 et seq. (formation of investment 
policy and statement of investment objectives); id. §§ 19.00-19.05 (exemptions from investment 
restrictions); id. §§ 2 1 .00-2 1 .0 1 (prohibited investments); id. § § 26.00-26.06 (standard rule for the 
retention of consultants). 

Prior to 1 987, such investment oversight of boards by PERAC excluded the PRIM Board, 
because the Legislature had initially defined the term "board" in G.L. c. 32 as meaning each retirement 
board established under Section 20 ofthe statute having jurisdiction of any contributory retirement system 
established under Sections 1 to 28 ofthe statute. G.L.c. 32, § 1. The PRIM Board did not fall within 



APPENDIX FORMAL OPINIONS 



this definition, unlike the local boards. The subsequent amendments to Chapter 32 are discussed 
below. Prior to December 20, 1 983, the local boards were allowed to invest in a limited group of 
investments, those on an approved list. At the same time that it established the pension advisory unit of 
PERAC, the Legislature also relaxed the prior restrictions on the range of investment options for the 
local boards. G.L.c. 7, § 50, as amended by Chapter 661 of the Acts of 1983. 

While the revised statute is less confining than the prior list of approved investments, the statute 
nonetheless limits the range of possible investment vehicles by the local boards. For example, with 
respect to investment in securities, the assets of a retirement system (with certain exceptions) may be 
invested only in those securities that are legal for the investment of funds by savings banks, as 
determined by the Commissioner of Banks. G.L. c. 32, § 23(2)(b)(I). In addition, there are provisions 
requiring the diversification of investments between securities and other investments on the one hand, 
and among specific securities on the other hand. See, e.g., G.L. c. 32, § 23 (2)(b)(I)(A) (no more than 
20 per cent of the assets of any retirement system shall be invested in railroad obligations, with no more 
than 2 per cent of the assets invested in the obligations of any one railroad). 4 

D. The 1987 Amendments to Chapter 32 

The present inquiry by PERAC arises from two changes made by the Legislature to Chapter 32 
in 1 987. First, the Legislature added the PRIM Board to the definition of the term "board" in Chapter 
32, thereby subjecting the PRIM Board to PERAC s authority to conduct field examinations underG.L. 
c.32, §21(l)(a). Id., § 1 (2000 ed.), as amended by Chapter 697 of the Acts of 1987. Second, at 
the same time, the Legislature exempted PRIM's investment policies from PERAC's rules and 
regulations that govern the investment of funds by the local boards: "The investment and fund 
management policies adopted by the PRIM board shall not be subject to any rules or regulations 
promulgated by [PERAC] governing the investment of funds by the retirement boards." G.L.c. 32, 
§ 23(2A)(h) (2000 ed.), as amended by Chapter 697 of the Acts of 1987. 

Both before and after the 1 987 amendments, Chapter 32 has contained the following directive 
on the investment of funds by the PRIM Board. "Subject to the approval or ratification of the PRIM 
Board, the executive director shall invest and reinvest such funds held by such board to the extent not 
required for current disbursements, as much as reasonably possible to benefit and expand the economic 
climate within the commonwealth so long as such is consistent with sound investment policy and the 



Upon application by a retirement board, PERAC is authorized to exempt the board from these restrictions on 
investment options if PERAC determines that the board's record of investment management merits broader 
investment powers. G.L.c. 32, §23(2)(g); 840C.M.R. §§ 19.00-19.05. 



APPENDIX FORMAL OPINIONS 

other requirements of this section." Id.,§23(2A)(h) (2000 ed.). 5 This directive applies solely to the 
PRIM Board. It is in the context of this directive that the Legislature made the second change to 
Chapter 32 in 1 987, thus ensuring that the investment and fund management policies adopted by the 
PRIM Board would not be subject to any rules or regulations promulgated by PERAC that govern the 
investment of funds by other retirement boards. The issue presented by PERAC involves the 
interpretation of this provision in light of PERAC's statutory authority to audit the PRIM Board under 
G.L.c.32,§21(l)(a). 

After the Legislature added the PRIM Board to the definition of the term "board" in Chapter 
32, PERAC conducted two field examinations of the PRIM Board's financial condition, the first for the 
period from 1988 through 1 990, and the second for the period from 1991 through 1993. These two 
field examinations are not at issue here, nor is PERAC 's authority to conduct field audits directed to the 
PRIM Board's financial condition. Although neither ofthese examinations included a review of the 
PRIM Board's contracts with investment managers or advisors, PERAC indicated in December of 
1 999 that its third examination, covering the period from 1 994 through 1 999, 6 would include such 
matters. 7 In particular, PERAC stated that the scope of this field examination would include all 
contracts, including those with investment managers and advisors; that the review would be a sampling 
to insure that PRIM adopted and followed a procurement process; and that PERAC would review the 
selection process, the signed contracts, and the fees paid by the PRIM Board, in order to determine 



The 1987 amendment added to this directive a separate provision that prohibits PRIM from investing the 
assets of the PRIT Fund in companies doing business with the Republic of South Africa or companies engaged 
directly or indirectly in certain military transactions with Northern Ireland. G.L. c. 32, § 23(2A)(h) (2000 ed.), as 
amended by Chapter 697 of the Acts of 1987. The Legislature had previously imposed the same restriction on 
MASTERS assets, effective in 1983. SeeG.L.c.32, §23(l)(d)(1989ed). 

6 Although G.L. c. 32, § 2 1( 1 )(a), calls for triennial field examinations, the third field examination of the PRIM 

Board was delayed, and PERAC thus sought to conduct a single examination for the period from 1994 through 1999. 

The third field examination also included the PRIM Board's financial condition. The PRIM Board elected to 
retain CPAs to conduct audits regarding its financial condition during the period from 1 994 through 2000, and PERAC 
was given access to the CPA's work papers in accordance with the protocol by which PERAC may elect to accept an 
audit conducted by a CPA in lieu of a field examination under G.L. c. 32, § 2 l(l)(a). Sec 840 C.M.R. § 25.01 et seq; 
PERAC Memo U 47/1999. The present inquiry thus does not involve this portion of the third field examination. 



APPENDIX FORMAL OPINIONS 

that such fees were paid in accordance with the contracts. After the PRIM Board objected, 8 PERAC 
sought an opinion on this matter. 

E. Determining the Proper Scope of PERAC's Field Examination of the PRIM Board 
The issue presented is whether including the procurement of investment management services in 
the scope of a field examination by PERAC would violate G.L. c. 32, § 23(2A)(h), by making the 
investment management policies adopted by the PRIM Board subject to rules or 
regulations promulgated by PERAC. 9 With respect to the scope of a field examination by PERAC, the 
PRIM Board differs from the local boards in one material respect. 10 Several PERAC regulations derive 
from its role in oversight of investment management decisions made by local retirement systems. See, 
e.g., 840 C.M.R. §§ 16.00-19.05; id. §§21.00-21.01; id. §§ 26.00-26.06. In conducting field 
examinations of local boards under G.L. c. 32, § 2 1 (1 )(a), PERAC has authority to review and evaluate 
the board' s investment management decisions, in order to monitor the board' s performance and the 
retirement system's effectiveness in achieving the statutorily intended results, 840C.M.R. § 25.01. 



In 2000, the PRIM Board also retained a CPA to perform additional audits regarding the process for 
procurement of services by PRIM, including investment management and advisor services, for the same time period. 
The CPA issued audit reports for theses periods on December 1 , 2000. The PRIM Board declined to provide PERAC 
with access to the CPA's work papers. 

PERAC is not estopped from seeking to include contracts in the scope of its field audits of the PRIM Board, 
despite the omission of such matters from the first two audits, any delay in conducting the third audit, or any prior 
statements made to the PRIM Board, see, e.g., Harrington v. Fall River Housing Auth., 27 Mass. App. Ct. 301, 308 
(1989), nor does the position now taken by PERAC contravene a consistent, long-continued interpretation of the 
relevant statute. Cf. DiGianni v. Contributory Retirement Appeal Bd., 421 Mass. 350, 355-56 (1995). 

Also, because the PRIM Board has no responsibility for the administration of pension benefits, portions of 
the questionnaire developed by PERAC as part of the protocol by which it may accept an audit by a CPA in lieu of a 
field examination, 840 C.M.R. § 25. 10, do not apply. For example, the sections of the questionnaire covering member- 
ship and disability procedures are directed to the administration of benefits. See 840 C.M.R. §§ 25.32, 25.33. These 
issues should not be included in the field examinations of the PRIM Board, and the PERAC regulations that govern 
the administration of benefits are inapplicable to the PRIM Board. See, e.g., 840 C.M.R. §§ 6.00-7. 13; id. §§ 10.00- 
10.21. 



FORMAL OPINIONS 



This difference between the PRIM Board and the local boards is material to my analysis. 
Sections 21(1 )(a) and 23(2 A)(h) of Chapter 32 must be read together in determining the permissible 
scope of a field audit by PERAC of the PRIM Board. The reasoning employed by the Supreme 
Judicial Court in another case involving PERAC is instructive here, given that the case also involved the 
interpretation of two statutes, one general and the other specific: 

Where one provision is more restrictive in a particular area, then that provision controls 
in that area. All areas covered under the general provision and not covered by the 
particular provision are unaffected by the particular provision. This way, both provisions 
can be given effect, with neither rendered nugatory. 



Plymouth County Retirement Ass'n v. Commissioner of Pub. Employee Retirement, 4 1 Mass. 307, 
3 1 2 ( 1 99 1 ). In that case, the Court determined whether PERAC had authority to review two local 
boards' approvals of applications for accidental death benefits, as opposed to accidental disability 
pensions. In asserting that it had such authority with respect to benefits, PERAC pointed to its general 
authority to review determinations made by boards under G.L. c. 32, § 2 1 (4). Id. at 309- 1 0. The two 
boards noted, however, that the more specific grant of authority to PERAC for review accidental and 
ordinary disability pensions, G.L. c. 32, § 2 1 ( 1 )(d), "conspicuously did not include review of accidental 
death benefits," id. at 3 1 1 (emphasis added), and the boards asserted that the more specific provision 
should apply. Id. at 3 1 0. The Court harmonized the broad grant of review authority conferred on 
PERAC under G.L. c. 32, § 2 1 (4), to review determinations made by boards, on the one hand, with 
the more specific grant of authority to review accidental and ordinary disability pensions under G. L. c. 
32, § 2 1 ( 1 )(d), on the other hand. Id. at 3 1 2. The Court found that the Commissioner had authority to 
review local boards' approval of applications for death benefits under G.L.c.32,§21 (4), reasoning 
that "§21(1 )(d) controls §21(4) only to the extent that review of accidental and ordinary disability 
pension determinations is concerned." Id. at 3 1 1 - 1 2. 

F. Conclusions 

In like manner, Section 23(2A)(h) of Chapter 32 is the more specific provision with respect to 
the investment and fund management policies adopted by the PRIM Board, while the more general 
provision, Section 21(1 )(a), governs other aspects of PER AC 's field examinations. Thus, while 
PERAC has the authority to include a review of executed contracts as part of its field examination of the 
PRIM Board pursuant to G.L. c. 32, § 21(l)(a), and 840 C.M.R. § 25.01, the scope of field 
examinations of the PRIM Board must be more limited than the scope applicable to local boards, such 
that PERAC lacks authority to review the process adopted by the PRIM Board for the selection of 
particular investment managers or advisors, or to assess the results of such selection. Applying such a 



APPENDIX FORMAL OPINIONS 



limitation ensures that the investment and fund management policies adopted by the PRIM Board will 
not be subject to any rules or regulations adopted by PERAC governing the investment of funds, 
consistent with G.L. c. 32, § 23(2A)(h).' ' 



Sincerely, 



Thomas F. Reilly 



/ 



The same limitation applies where, as here, the PRIM Board has elected to retain a CPA to conduct an audit 
regarding the process for procurement of services by the PRIM Board. In determining whether to accept that audit in 
lieu of a field examination, PERAC lacks authority to review those work papers of the CPA that relate to the PRIM 
Board's decision to select particular investment managers or advisors, while retaining authority to review the 
remaining work papers that relate to the performance of contracts issued by the PRIM Board, including the payment 
of fees under those contracts with investment managers and advisors.