Public Document No. 12
tClje Commontajealtl) of ifflaggacljusetts!
Report of the
Attorney General
for Fiscal Year 2004
July 1,2003 -June 30, 2004
Publication of this Document Approved by Ellen M. Bickelman, State Purchasing Acent.
Publication Number CRl 1 18-01/06-4.35-Docuprint Express
Thomas F. Ri:ii,i.y
ATTOKNhY (IHNhKAl.
The Commonwealth of Massachusetts
Office of the Attorney General
One Ashburton Place
Bos ION, MASSACHUSEirs 02 1 08- 1 698
In accordance with the provisions of Section 11 ol Chapter 12 of the
Massachusetts General Laws, I hereby submit the Annual Report for the OlHce of
the Attorney General. This Annual Report covers the period from Inly 1, 2003 to
June 30, 2004.
Respectfully submitted,
Thomas F. Reilly
Attorney General
TABLE OF CONTENTS
ASSISTANT ATTORNEY CENF.fL^L APPOINTMENTS i
EXECUTIVE BUREAU 1
General Counsel's Office 2
Human Resource Management Office 4
External Afifairs OfFice 6
Information Technolog)' Division 7
Budget Office 8
Operations Division 9
Communications Office lO
Francis X. Bellorti Law Library 1 1
BUSINESS AND LABOR PROTECTION BUREAU 15
Fair Labor and Business Practices Division 15
Medicaid Fraud Control Unit 22
CRIMINAL BUREAU 31
Appellate Division 33
Corruption, Fraud, and Computer Crime Division 37
Viaim/Witness Assistance Division 44
Special Investigations and Narcotics Division 49
Environmental Crimes Strike Force 59
Insurance and LJnemployment Fraud Division 63
Criminal Justice Policy Division 73
Victim Compensation and Assistance Division 78
Financial Investigations Division 82
Sate Neighborhood Initiative Division 87
TABLE OF CONTENTS
GOVERNMENT BUREAU 101
Administrative Law Division 103
Irial Division 1 16
PUBLIC PR0TECTR:)N bureau 129
Civil Rights and Civil Liberties Division 129
Consumer Protection and Antitrust Division 138
Environmental Protection Division 154
Insurance L^ivision 168
Investigations Division 179
Mediation Services Division 182
Division of Public Charities 185
Utilities Division 191
REGIONAL OFFICES 203
Western Massachusetts 205
Central Massachusetts 2 1 1
Southeastern Massachusetts 219
APPOINTMENTS
Fiscal Year 2004 (7/1/03 - 6/^0/04)
OFFICE OF THE ATTORNEY GENERAL
ATTORNEY (;KNKRA1., THOMAS F. REII.l.Y
HIRST ASSISTANT ATiORNEY GENERAL, L:)EAN RICHl.lN
ANNB.ACKIL
MICHEl.EL.ADELMAN
JENNIFER A. ADREANI
BRUCE F. ANDERSON {]>)
MARION ANTON UCCI (45)
JAMi:S AROUIN
REDFRICK n. ALIGENSTERN
EVA BADWAY
CHRISIINE BA1LY(I3)
ANNAi'URNA BALAKRISHNA
(4»
THOMAS BARNICO
CHRISTOPHER K. BARRY-SMITH
JASON B.BARSHAK
DENISE M.BARTON (3)
R.DAVID BECK
ANNETIEC. BENEDE'nO
LESLIE BENNETT! ID
ROBERT BENSON (29)
MATTHEW Q.BERGE
CRISPIN BIRNBAUM
NANCY BI.(X)MBERG(27)
WILLIAM F BL(X)MER
EDWARD GBOHLEN
WILNER BORGELLA
JOHN E. BOWEN
JOHN E.BOWMAN (33)
JULIE BRADY
MATTHEW T.BR(X:K
MONICAA. BR00KMAN(I8)
trace^'a. brown
ranjana burke
joseph callanan
romeo camba
jesse caplan
sandra cardone
ERICB.CARRIKER
ALOKF CHAKRAYARTY(26)
JULIE CHATTOPADHYAY
KAJAL CH.A.'nOPADH^AY(8)
K.ATHYCHEN(37)
NORA CHOROVER
JOHNJ.CHRISTIN.JR.
JAMES CLARK
PETER CLARK
STEPHEN H. CLARK (4 1)
ALEXANDER COCHIS
RICHARD COLE
VICTORIA COLE(6)
JEFFREY L COLLINS
JOHN COMPTON(7)
JOANNA CONNOLLY
R(JSEMARY CONNOLL\'
COLLEEN CON NOR (26)
MARGRET COOKE
PATRICIA CORREA
PIERCE O.CR.^Y
JOHNA.CRIMMINS(44)
GLENN CUNHA(23)
JOHN CURSEADEN(24)
PAMELA M.DASHIELL
GERALDD.D'AVOLIOJR.(3())
LINDA S. DELCASTILHO
■STEPHEN DICK
THOMAS V DIGANGI
JENNIFER [XJHF.RTY
KIR.STEN ENGEL
APRIL ENGLISH (3)
BENJAMIN ERICSON
BARBARAA.F.\]N
JAMES D. P FARRELL
LISAJ.FAUTH
DANIELS, FIELD
ROBERT FISHER (1 2)
SUSAN M. FLANAGAN-CAHILL
(ID
ELIZABETH ANN FOLEY (29)
MARYB.FREELEY
ROSALYN GARBOSE
SALVATORE M. GIORLANDINO
FR.ANCO CiOBOURNE(45)
I.ANDREW GOLDBERG
LORRAINE GOLDENBERG-
TARROW
ELIOT GREEN
BERNARD W.GREENE (2 1 )
JOHN A. GROSSMAN
KELLI GUNACjAN
DAN ILL J. HAMMOND
NANCY E. HARPER
KATHFRINE HATCH
JANICE HEALY
RICHARD HEIDLAGE
HII ARY HLRSHNLXN
ERICHKiHTOWER(3l)
S.'XRA HINCHEY
JOHNR.HITT
BART Q.HOLLANDER
PAMELA HUNT
MARSHA HUNTER
CAROL lANCU
M.'\F]'HEW IRELAND
MARIA HICKEY JACOBSON
THOMAS M.JOHNSON
JOCEL\ N JONES
TIMOTHY JONES
SARAH JOSS (6)
ROSALIND KABRHEL
MICHELLE KACZYNSKI(33)
STEPHANIE KAHN
JUDYZEPRUN KALMAN
GLENN S.KAPLAN
JAMIE W. KATZ
RONALD KEHOE
DAVID KERRIG.AN
KATHARINE KLUBCXTK
MARK R. KMETZ
PAMELA KOGUT
CHARISMA LAM (9) '
SIUTIP LAM
ROBERTML.\NG(16)
JUDITH LASTER
DIANE L. LAWTON (46)
DANA l,ECCF^SE
PATRICK LEE
PETER LEIGHT
MADELINE LEONE
JUDY LEVENSON
DAVID M.LIEBER
APPOINTMENTS
STEPHANIES. l.OVELl.
ANITAVMAIE7TA
TIMO'IHY MALEC(43)
DAVID MARKS
LAURA MARLIN
STEPHEN MARSHALEK
INGRID MARTIN (5)
TINA MATSUOKA
LEA B. MAY
DEAN MA7.ZONE(46)
COLLEEN MCCONNELL
PHILIP.I.MCG()VERN(25)
CONSTANCE M MCGRANE
TIMOTHY MC(}UIRE
IAN MCKENNY(3)
MAURA D. MCLAUGHLIN (10)
PATRICIA MEDEIROS
PAMELA.I.MEISTER
BETH MERACHNIK
HOWARD R. MESHNICK
NICHOLAS. I. MESSURI
JAMES R MILKEY
PAUL MOLLOY
DAVID MONAHAN
NATALIE S.MONROE
ALICE L.M(X)RE
TIMOTHY MORAN
MARK E. MULDOON (33)
DAVID S.NALVEN (48)
CAITIRYN NEAVES
EILEEN O'BRIEN
JAMES H.OBRIEN
THOMAS M. O'BRIEN
M.ARY O'NEIL
WILLIAM RONEII.L
JAMES L. PAPPAIOANOU (49)
EMILY R. I'ARADISE
WILLIAM L. PARDEE
MARGARET PARKS
MAITEA. PARSl
ROBERT PATTEN
PETER PAULOUSKY(38)
SUSAN PAULSON
ANTHONY E. PENSKI (3.^ )
MARYA. PHILLIPS
MARY B.PHILLIPS
KEVIN PLANIE
WILLIAM W. PORTER
CHRISTOPHER QUAYEi34)
JASON OUEENIN
ROBERT L.QUIN AN
SUSANNEREARDON(IO)
KARLEN REED
WILLIAM E. REYNOLDS (28)
JULIANA D.RICE
DEAN RICHLIN(42)
CHERYL RIDDLE
ROBERT W. RITCHIE
JOSEPH W.R(X}ERS
DEIRDRE RONIiY
RAYMOND ROWLAND (3)
JOSEPH RUCCIO
PETER E RLISSELL
PETER SACKS
ERNEST L.SARASON
KURT SCHWARIZ
JEEEREY S.SHAPIRO
MATTHEW SHEA
MICHELLE SHERIDAN (2) (32)
GLENM.SHOR(20)
ADAM SIMMS
GINNY SINKEL
TlNAL.SMEATONdS)
DANIELI.SMULOW(l9)
JOHANNA SORLS
AMY SILVER SPECTOR
CHRISTOPHER SPERANZO(39)
DAWN S TOLR STALENHOEE
(40)
DAVID STANHILLI 14)
DEBORAH S. STEENLAND
CAIEIERINE SULLIVAN
MARK P. SU TLIEE
J AMES A. SWEENEY
JOHN TALBOT (26)
ROSEMARY TARANTINO
NEILS. TASSEL
DANAH TENCH
STEVEN E.THOMAS
MARINI RJRRES-BENSON (36)
BRUCE 1 RAGER
TOBYUNGERdO)
RAMI VANEGAS(17)(47)
LINDA WAC}NER (.^=5)
THUY WAGNER (8)
DEBRAWAI.SHd)
TERESA WALSH
JAMES S.WHITCOMB
DORIS H.WHITE
JUDITH WHITING
BETSY K.WHITTEY
GEOEEREY WHY
JESSICA WIELGUS
JANEL.WILLOUGHBY
MEREDITH WIL.SON(22)
NATHANAELE.WR1GHT(26)
CHARLES WYZANSKI
SHEILA YORK
KARLA ZARBO
CATHERINECZIEHL
APPOINTMENTS
APPOINTMENT DATE
( 1 ) 7/28/03
(2) 8/11/03
(3) 9/2/03
(4) 9/8/03
(5) 9/15/03
(6) 9/22/03
(7) 10/20/03
(8) 11/3/03
(91 11/17/03
(101 12/1/03
(III 12/15/03
(I2i 1/5/04
(13) 1/27/04
(14) 2/2/04
(15) 2/24/04
(16) 3/1/04
(17) 3/8/04
(18) 3/22/04
(19) 4/5/04
(20) 5/3/04
(21) 5/17/04
(22) 6/1/04
(23)6/14/04
TERMINATION DATE
(24
7/18/03
(25
7/23/03
(26
8/1/03
(27
8/22/03
(28
8/29/03
(29
9/5/03
(30
9/12/03
(31
9/18/03
(32
9/26/03
(33
10/1/03
(34
10/17/03
(35
10/31/03
(36
11/7/03
(37
1 1/14/03
(38
1/2/04
(39
l/16/(U
(40
2/6/04
(41
2/27/04
(42
3/5/04
(43
3/12/04
(44
3/26/04
(45
4/30/04
(46
5/7/04
(47
5/14/04
(48
5/21/04
(49
5/28/04
EXECUTIVE BUREAU
General Counsel's Office
Human Resource Management Office
External Affairs Office
Inforjviation Technology Division
Budget Office
Operations Division
Communications Office
Francis X. Bellotti Law Library
EXECUTIVE BUREAU
Executive Bureau
The Executive Bureau's primary tunctioii is to provide tlie OfUce with overall administration
management, policy setting, staff supervision, and employee training, it is also responsible tor
administering technical support to over 450 employees located throughout the Commonwealth.
Additionalh', the Executive Bureau performs a number of specialized fiuictions, including the
coordination of legislative affairs, constitueiu relations, cornimunits' outreach, and all ci)mminiications,
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 productiveh^ and effectively for the benefit of the ("ommonwealth's citizens.
The Office of the First Assistant Attorney General, which oversees all legal matters and includes the
Office of the General Counsel, is located in the Executive Bureau. Other offices within the bureau
include Human Resource Management, Budget, Information Technology, Operations, Support Ser\'ices,
and the Francis X. Bellotti Law Librarj'.
In recognition of the Executive Bureaus dual responsibilitv' to provide leadership on the Offices
overall mission and priorities, and to support administratively the Office to ensure efficiency and
effectiveness, the management of the bureau is carried out b\- the Chief of Staff and the Chief of
Administration and Finance.
The Chief of Stafi^ oversees several key functions of the Executive Bureau, including Communications,
External and Intergovernmental Affairs, Public Information and Constituent Services, as well as
Scheduling. In addition, the Chief of Staff is responsible for working directly with the bureaus to
develop and coordinate the key policy initiatives and priority issues of the Office. The Chief of
Administration and Finance is responsible for oversight of all the elements that go into ensuring the
smooth, efficient, and effective operations of the Office, with the primary focus of working with the
bureaus to develop an even more coordinated and positive work environment. Fhe Chief of
Administration and Finance has responsibility for the management of Human Resources, Operations,
Budget, Information Technolog}', and the Law Library.
EXECUTIVE BUREAU GENERAL COUNSEL'S OFFICE
In Fiscal Year 2004, the Execurive Bureau included Stephanie Lovell, First Assistant Attorney General;
Stephen Bilafer, Chief of Staff; Jason Queenin, Chief of Administration and Finance; Kerri Burridge;
Ellen Donaghey; Diane MacDonald; I.abrini Malatantis; Marie Urciuoli; and ("hristine Wilson.
Smooth operation ot the Attorney General's Office also is reliant on the dedicated professionalism
of the following staff members in the Bellotti Law Library and the Telecommunications Division:
Karin Thurman, Law Librarian; Michael Ball; Catherine Douglas; Susan Lindscv; Ra^'mond Manigault;
and Denise McCartin.
GENERAL COUNSELS OFFICE
The General Counsel's Office is within the Office of the First Assistant Attorney General. This
office provides recommendations on legal and policy matters to the Attorney General, the First Assistant
Attorney General and the Chief of Staff Staff within the General Counsel's Office also advise and
support all other staff members, both legal and nonlegal, in the Office of the Attorney General.
More specifically, this Office advises on the Rules of Professional Conduct and the Stare Flthics
Law; provides legal advice and assistance to the administrative staff within the Executive Bureau; through
x.\\t AG Institute provides and conducts office-wide, in-house training programs for ;dl staff; coordinates
the appointments of Special Assistant Attorneys General (SAAG); reviews and approves legal services
contracts for state agencies; reviews and circulates petitions and notices from the Board of Bar Overseers;
coordinates the office-wide review of tax settlements between the Department of Revenue and individuals
who have failed to pay taxes; retains and manages the states Operating Under the Influence (OUI)
notices to drinking establishments; monitors the National Association of Attorneys General (NAAG)
recommendations and submissions of amicus briefs for the First Assistant and coordinates bureau
responses; monitors and reviews NAAGs recommendations to join other Attorneys General throughout
the countiy in letters of support and/or opposition to proposed legislation or regulations; provides
technical support to the Office of Campaign and Political Finance (OCPF) by issuing warning letters
to respondents and by reviewing OCPF paperwork and serving its complaints; reviews public records
law appeals referred for enforcement action b\' the Secretary of State through the Supervisor of Public
Records; provides support to the bureaus on requests for interiKil documents and inhirmation under
the public records law and Fair Information Practices Act (FIPA); and investigates open meeting law
violations by state agencies.
The General Counsel's Office started Fiscal Year 2004 with four attorneys, one paralegal and one
secretary: Pamela M. Dashiell, General Counsel; Deborah Steenland, Deputy General (Counsel; Judy
t-XECLTlVE BUREAi; GENERAL COUNSEL'S OFPICE
Zcpiiin Kidman, Senior C^ounsel; Lorraine C.oldenberg- Farrow, Assistant Attorney ("icneral; Kilecn
Carey, Paralegal; and Akiti Cliamiler, .Secretary.
SIGNIFICANT CASK SUMMARIES
The General Counsel's Office manages all internal personnel matters in conjunction with the Human
Resource Management Division. It is responsible for handling workers' compensation claims, union
arbitrations and grievances, di.scrimination complaints, and disciplinar)' proceedings up to and including
einpio)'ec terminations.
On occasion, the General Counsel's Office will provide assistance to other bureaus with respect to
cases involving litigation. Therefore, some members of the staff earn,- an active caseload of work unrelated
to the core responsibilities of the General Counsel's Office.
STATISTICAL SUMMARY
Amicus Briefs Received 50
NAAG Sign-ons Received 21
Legal Services Contracts Received 48
SAAG Appointments Made 37
SAAG Appointments Amended 18
SAAG Appointments Vacated 19
Public Records Enhjrcement Appeals Received 16
Public Recofds Requests Received 41
Open Meeting Law Complaints Received 7
OCPF Cases Received 37*
Board of Bar Overseers/Tax Settlements Received 28
OUI Notices Received 1,339
'This total reflects the number ot warning letters sent to non-filers. We also reviewed OCPF paperwork and pleadings
(to be tiled in court) and responded to questions by telephone and e-tnail.
EXECUTIVE BUREAU HUMAN RESOURCE MANAGEMENT OFFICE
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
Stiiff of rlie General ("ouiiNel's Office worked vvirh rhe Human Resource Management Division to
conduct training on the Attorney General's Anti-Discrimination and Sexual Hanissnienr Polic)'. The
Members of the General Counsel's staff were involved in other cross-bureau initiatives, including the
Diversity Committee, the Employee Benefits Committee and The Elder Protection Unit of the Public
Protection Bureau. This office had a staff member serve as the Attorney General's representative on the
Governor's Diversity and Equal Opportunity Advisor)' Council. The staff also drafted the statewide
record retention policy for documents unique to the Office of the Attorney General.
In keeping with the Attorney General's priority of ensuring statt has access to the latest informarion
and training available, and in furtherance of their professional development, the AG Institute provided
continuing education to legal and nonlegal staff on a variety of topics. During Fiscal Year 2004, the AG
Institute offered 60 programs and brought in seven "Distinguished Lecturers."
OUTREACH, EDUCATION, AND TRAINING
During Fiscal Year 2004, the staff of the General Counsel's Office provided training to state and
local government agencies on open meeting law issues and public records law matters. Other staff
members were active in the Boston and American Bar Associations where they functioned in leadership
positions on various committees. They also served as panelists and speakers at NAAG seminars,
Massachusetts Continuing Legal Education forums, and other legal programs offered across the country'
sponsored by the various bar associations noted above. A staff member made a presentation at a career
forum at an area law school. Members of the staff also participated in the Citizen Schools mock trial
program and volunteered as tutors in its Eighth Grade Academy, and worked with other community
groups in their own neighborhoods.
HUMAN RESOURCE MANAGEMENT OFFICE
1 he Human Resource Management (HRM) Office is responsible for job vacanc}' announcements,
the recruitment and hiring of employees, benefits administration, performance appraisals, and the
coordination of hiring for legal and collegiate interns. During Fiscal Year 2004, staff members included
Diana LaRochelle, Director; Joyce Delgardo; Sandra Macdonald; Lauren Murray; and Joseph Shea.
EXECUTIVE BUREAU HUMAM RESOURCE MANAGEMENT OFFICE
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
ANT1-D1.SCR1M1NATR:)N and .ShXUAL HARASSMENl POLICY
The HRA'I Office reissued the Anti-Distiimination and ^lexual Harassment Polity in April 2004
to all employees, contractors, volunteers, and interns. The Office of the Attorney Cjcneral remains
committed to the goal of having a workplace that is respectful, inclusive, and diverse, and reinforces
that commitment on a continuing basis.
OFf-lCE-SPONSORRD BAR ASSOCIATION MEMBERSHIPS
hi addition to sponsoring memberships for all attorneys in the Boston Bar Association or a count)'
bar association, assistant attorneys general also were offered the opportunity to join one of the many
minorit)' and women's bar associations in Massachusetts. This benefit was continued from previous
years to further the Office of the Attorney Cener;i]"s commitment to enhance attorneys professional
development, and to encourage involvement with organizations comprising diverse members and
e.xperience.
LEGAL AND COLLEGIATE INTERN PROGRAMS
The Office of the Attorney General continued its strong commitment to the Legal and C-oilegiate
Intern Programs during Fiscal Year 2004. Each winter, the HRM participates in the Massachusetts
Law School Consortium interview process to recruit and select summer legal interns. In addition to
this valuable source of candidates, HRM coordinates and holds dozens of inter\iews in late winter and
early spring with students from numerous law schools.
HRM placed 77 law students in the Office, the majority of whom took part in the Summer Legal
Intern Program. I he law students participate in a full-time, structured nine-week summer program
which is unfunded, and is aimed at both utilizing their knowledge and giving them hands-on experience
and training in some of the most interesting legal cases in the C'ommonwealth.
The Collegiate Intern Program attracts a large number of applicants throughout the year, but has
the largest component during the spring and summer months. In Fiscal Year 2004, the HRM placed
94 collegiate interns. These interns volunteer at least 15 hours per week, and are assigned in all five
bureaus across the Office. The term of their internships varies from student to student, but often
exceeds nine weeks.
Additionally, three assistant attorneys general run clinical programs throughout the year for students
at area law schools — Har\'ard Law School, Boston College Law School, and the New England Scliool
of Law.
EXECUTIVE BUREAU EXTERNAL AFFAIRS OFFICE
PERSONNEL ACTIVITY
During Fiscal Year 2004, the Attorney Cerierals Office hired 34 attorneys and 56 nonlegal staff, for
a total of 90 employees. There were 80 staff members who separated from the Office.
EXTERNAL AFFAIRS OFFICE
'Ihe External Affairs Office of the Fxecutive Bureau responds to the dail\' needs of the public and
the legislature. It serves ;is a direct liaison between the communit)', legislature, and the Attorney General.
In Fiscal Year 2004, the Exterrial Affairs Office included the following staff members: Stephen
Kerrigan, Director; Amanda Coulombe; Leali Green; Janis Noble; Sally Ogine-Noel; Lori Suher; and
Tom Weber.
GOMMUNITY LIAISON
The Community Liaison is responsible for constituent serv-ices. The position was created as a
resource for citizens to obtain information for either internal or external assistance through e-mail,
letters, telephone calls, or office visits. In 2004, we received approximately 5,662 e-mail requests and
2,698 telephone calls.
OFFICE OF COMMUNITY PARl'NERSHIPS
Attorney General Reilly created the Office of Comrnuniry Partnerships to work with Massachusetts
mayors, other urban leaders, and local town officials to address issues that relate to our communities,
particularly as the}' affect the health and safet\' of our children, environmental concerns, and housing
issues. Community Partnerships acts as a direct liaison between the Office of the Attorney General and
the state's cities and towns.
LEGISLATIVE AFFAIRS DIVISION
The Legislative Affairs Division is responsible ior establishing and implementing the Attorney
Generals legislative agenda. The Legislative Affairs Division directs legislative polic}', coordinates the
filing of legislation, and approves written and oral testimony. I'he division provides external liaison
services, including apprising legislators of issues that may impact their communities and responding to
their calls and correspondence with regard to constituent problems and legislative concerns. In addition,
EXECUTIVE BUREAU INFORMATION TECHNOLOGY DIVISION
the division disseminates legislative information thront;hoiii the bureaus, acting as an internal liaison
between the legisLuiue and (he Otfiee oi the Attorney (General. The Legislative Affairs Division atlvises
ihe Attorney CJcneral on matters of policy and participates in the overall ilevelopment and
implementation ot office-wide initiatives.
INFORMATION TECHNOLOGY DIVISION
The Attorney General's Information Technology Division (IT Division) is responsible for the
operation and maintenance of the agency's computer network and related technical resources. The
division operates a wide afea network (WAN) at One Ashburton Place, which provides connectivity
between the Boston offices at One Ashburton Place, 100 Cambridge Street, and 200 Portland Street
and the local area networks (LANs) installed in the regional offices in Springfield, Worcester, and New
Bedford.
The IT Division's mission is to maintain network communications and provide hardware, software
and end-user assistance for all agency staff in all locations. The division's staff supports over 20 servers
hosting mail, databases, and other applications and equipment providing DNS and firewall ser\'ices.
In addition, the technical staff oversee a number of routers, network switches, and over 600 computer
devices, including desktop PCs, Notebook PCs, printers, scanners, and other peripheral et]uipment.
During Pisc.il Year 2004, IT [division staff included: Paula M. Durant, Director; Claudette Clement,
Administrative Coordinator; Bruce Crosb)-, Technical Support Specialist; Jean Exantus, Technical Support
Specialist; Christine Heneghan, Notes Database Administrator; Jack Ngan, Technical Support Specialist;
Ronald Rossetti, Network Manager; Vis;iklia Samaraweera, Relational Database Developer; and Thomas
Smith, LAN Man.iger.
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
The Office of the Attorney General continually works to improve the qualit)' of its technical resources.
In Fiscal Year 2004, the IT Division made improvements to its network backbone equipinent so that
server commimications and switching equipment now operate at gigabit speed, further enhancing
network performance and client/server communications.
As part of the relocation project that moved the Public Protection and Business and Labor Protection
Bureaus to new offices at 100 Cambridge Street, the IT Division designed and implemented a copper/
fiber network connecting the new space to the agenq's main computer room at One Ashburton Place.
EXECUTIVE BUREAU BUDGET OFFICE
Utilizing a fiber connection between the buildings saved the agenq,' the cost of installing and maintaining
another, separate 11 connection, and provided the opportimity to consolidate servers and tasks at the
main location. Desktop and printer upgrades were made as needed, and 11 staff continued to focus on
network security and virus protection.
Along with agenc}'-wide improvements, the IT Division also responded to the needs of particular
divisions. During Fiscal Year 2004, the IT Division worked with the Medicaid Fraud Control Unit to
acquire litigation support software and helped implement scanning solutions to assist with document
management. The division also worked with the Medicaid Fraud Control Unit and the Corruption,
Fraud, and C'omputer (.'rime Division to act]iiire additional computer forensics equipment and resources.
Enhancements made at the desktop level included acquiring and installing additional scanning
equipment and software to provide individual bureaus with the speed and flexibility needed to meet
their imaging requirements without reliance on the centralized Multimedia Unit.
OUTREACH, EDUCATION, AND TRAINING
As in past years, the Information Technolog}' Division strives to provide a high t|uality of end-user
assistance. Help Desks were staffed both at Ashburton Place and at 200 Portland Street, where IT staff
members received and responded to user calls encompassing a wide variet)' of i.ssues. Orientation
sessions are conducted for new employees and interns upon start of work, and in addition to issuing
new feature instructions, policy reminders, virus alerts and technical bulletins, the IF staff provides
individual and group training as needed.
BUDGET OFFICE
As in Fiscal Year 2003, a challenge for the Budget Office was to provide tor the ever-increasing
needs of the Office of the Attorney Ceneral while anticipating that Fiscal Year 2004 funding would be
reduced or level funded. However, the most important activity of the Budget Office in Fiscal Year 2004
was to prepare for the transition to a new and completely different statewide accounting s\'stem, to be
implemented at the start of Fiscal Year 2005 on July 1, 2004. Budget Office stafl were involved with
training, account preparation, and many other activities that would be crucial to conducting business
as usual at the start of the new fiscal year. Little of the old system terminology or process would be part
of the new accounting system. This transition would result in the close of Fiscal Year 2004 in the old
system and the start of Fiscal Year 2005 in the new system.
EXtCL^TiVE BUREAU OPERATIONS DIVISION
During Fiscal Year 2004, Budget staff processed over 1 1,300 payment vouclier (I'V) docimients
totaling $15,176,582. Among these totals were 2,450 i'V's totaling $3,010,132 to victims of" violent
crimes and 1 , 165 PVs to claimants that beiiefned from wage recovery settlements or other settlements
made with various retailers.
In Fiscal Year 2004, the Budget Office included the following staff members: Frank Velluto, Director;
James Crcedon; Michael Duggan; Kerisotellia Ford; Jennifer Hanly; Shanita Hill-Davis; Penny Michalski;
and Gail .Sarno.
OPERATIONS DIVISION
The Operations Division provides professional, timely, and valuable ancillar)' services that allow
the Office of the Attorney General to effectively carr\' out its mission. The multitude of initiatives,
functions, cases, and day-to-day business activities are supported by the technical abilit)' within the
realm of the Operations Division. In Fiscal Year 2004, the division continued to be fully engaged in
daily facility and operational matters, and supported the Office of the Attorney General staff with the
latest multi-media technology enabling them to efTectiveh' and efficientU' perform their duties.
In Fiscal Year 2004, division staff included: Kristine Hill, Director; Ghris Adams; Tony Melius;
Kevin Nolan; Pasha Polihronidis; and Michael Whelan. The Support Services Division included:
William Coughlan, Manager; Joseph Barnes; Stephen Gress; Tim LeBlanc; Nestor Morales; Dave Scafati;
and Harold Taller.
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
In Fiscal Year 2004, the Boston offices of the Attorney General were relocated. Operations Division
assisted with this significant project, moving staff from One Ashburton Place and 200 j-'ortland Street
to the newly renovated Saltonstall Building at 100 Gambridge Street. This project required a collaborative
effort from all affected divisions and the Operations Division, which resulted in a successful transition
without incident. Operations staff coordinated over 2,000 boxes of archived documents for delivery
and storage, prepared new office space for staff occupanc)', worked closely with the moving company to
ensure accurate delivery of files and equipment, processed security access cards, and inventoried all new
office furniture.
EXECUTIVE BUREAU (.OMMUNICATIONS OFFICE
Two significant matters that required the full services of Operations were the issuance of the
Archdiocese Report and the Brown Rudnici< I'obacco Fees. I'he release of the Archdiocese Report
required (Operations staff to not only prepare tor a high-profile press event, but also required careful
coordination and technical ability to accommodate a live television broadcast. The Operations staff
provided this support in conjunction with other divisions to effectively provide the technical capacity
to support local and national coverage of this historic event. Equally important was the ancillary
support provided hir the high-profile tobacco fees case, which required daily delivery, set-up, and
retrieval of case documents and equipment. Complex trial exhibits, graphs of numerical data and
PowerPoint presentations are examples of the tools provided by Operations for these cases and many
others.
Operations also played a major role in the technical set-up anci coordination oi the September
2004 Garden of Peace Ceremony and reception, which took place on the plaza of 100 Cambridge
Street. This emotional ceremony honored homicide victims with a program that included speakers, a
monument dedication, musicid arrangement, and a candlelight vigil. Over 2,500 people attended this
event. Operation staff received high praise from agency officials regarding their professionalism,
dedication, and significant contribution to the event.
Other functions within the scope of Operations include vehicle maintenance, staff parking,
acquisition and maintenance of emergency remote communications devices, responding to ficilit)'
alarms, emergency building evacuation plans, and general physical plant upkeep.
COMMUNICATIONS OFFICE
The Communications Office coordinates all media-related matters for the Office of the Attorney
General. I'he chief responsibility of the Communications Office is to sei've as a centralized public voice
for the agency. To that end, the Communications Director and Deputy Press Secretaries work with
Executive staff and Bureau Chiefs to ensure that the Attorney General's priorities are reflected in all
public statements and materials, including press releases, advisories, public statements, interviews,
publications, the Attorney General's Web site ( w^vw.ago.state.ma.us ). and other public appearances
and events.
To effectively communicate within the agency and with the public, the Communications Office
has implemented policies to handle media inquiries, create publications and brochures, and manage
content on the Attorney General's Web site.
In Fiscal Year 2004 the Communications Office staff included: Ann E. Donlan, Director; Sarah
Nathan; Beth Stone, and Corey Wclford, Deputy Press Secretaries; and Jen Adams, Web site Manager.
10
EXECLTIVE BUREAL; FRANCIS X. BELLOTTI LAW LIBRARY
WEB SITE
In existence since December 1999, the Office W'eli site continued to ex[)and during the Fiscal Year
2004. A site redesign launched successhilly in June 2004. In addition to new design elements, the
navigation uid content were upd.ueti to give users more direct access to inlormaiion on die siie. A
content managemeni tool was implemented into the site and the posting process. This tool streamlines
the posting process and gives additional employees the ability to post, such as Press and Human Resources.
Current publications were added to the Web site in I'DF and, if possible, H'FMI. and RTF formats (for
accessibilit)' compliance). The site traffic reports demonstrated between 60, 000 and 76,000 visitors per
month.
FRANCIS X. BELLOTTI LAW LIBRARY
Ihe librar\' provides the Office of the Attorney General with the finest possible research facilit}'
and supports the research activities of the attorneys and staff. 1 he collection includes 2,355 book titles
and 161 periodical, law review, newspaper, and newsletter titles. The library contains the only complete
index to Opinions of the Attorne\' (icneral, town b\Tiw and zoning approval letters on microfiche, and
Bid Protest Decisions and Advisory Opinions from the Fair Labor and Business Practices Division.
The attorneys dso have access to Westlaw for online searching of legal and newspaper databiises. Library
staff frequently assist individuals who are not affiliated with the Office in locating these materials.
Outside individuals must make an appointment with the librar)' in order to use the special collections.
The library joined the Boston Regional Library System in the fall of 2002, facilitating interlibrarv'
loans from nonlegal libraries. Included with membership is access to OCLC, a national bibliographic
database, which locates material nationwide.
During Fiscal Year 2004, the library staff included: Karin riuirman, Director; and Raymond
Manigault.
OUTREACH, EDUCATION. AND TRAINING
In Fiscal Year 2004, all new attorneys, paralegals, and interns received lours of the librar)' and an
introduction to the online Internet and CD-ROM databases available to them. During Fiscal Year
2004, j2 attorney's and paralegals, and 12.3 interns were trained. Westlaw training was mandator)' for
all new attorneys and available for any attorney wishing to expand his/her knowledge.
11
BUSINESS AND LABOR
PROTECTION BUREAU
Fair Labor and Business Practices Division
Medicaid Fraud Control Unit
BLSINHSS AND LABOR PROTECTION BUREAU FAIR LABOR ANL1 BUSINESS I>R>^CriCES DIVISION
Business and Labor Protection Bureau
FAIR LABOR AND BUSINESS PRACTICES DIVISION
The demands placed on the Fair labor and Business I'ractices Division (HI.BP) For Fiscal Year 2004
remained very iiigli. Ihe telephone hotlines continue to serve the public, who make over 1 ,350 inquiries
per week. Callers are given appropriate recourse to handle their coitiplaints and incjuiries, man)' resulting
in formal complaints being filed with the division, while others were given referrals to other agencies to
assist them with their individual needs. The hotline has been supplemented b\' an improved Web site
that has experienced a significant increase in the volume of inquiries made through the Workers' Rights
section of the Web site. Complainants are able to download complaint horms with ease, due to the
recent enhancements made to the Web site.
During Fiscal Year 2004, FLBP staff included Dan Field, Division Chief; Rosalyn Carbose, Deputy
Division Chief; Randy Berg, Chief of Investigations; Jeremy Banks and Leali Green, Outreach Directors;
Jef^ Ambrose; Bruce Bergman; Bruce Bussiere; Cecile Byrne; Ronald Cabczas; Jay Clark; Nick Dean;
.Susan Decker; Joseph Drz)'zga; Maty Dullinger; Patrick Fahert)'; Michelle Gamble; John Gatti; Paul
Gordon; Alex Guardiola; F.rika Gully-Santiago; Edward Horniak; Marsha Flunter;TomJohn.son;Jocelyn
Jones; Barbara Kane; Patricia Kelleher; Noreen Kell\'; Katharine Klubock; Robert Lamarre; Brian Macera;
Jeffrey Mahone)'; Anita Maietta; Mildred Markham; Katherine Mulligan; Mario Paiva; lona Powell-
Headley; Greg Reutlinger; Mario Rosado; Jed Ruccio; Elizabeth Rufo; Palmer Santucci; Steven Spencer;
Bruce Trager; Theresa Ukleja; and Karla Zarbo.
SIGNIFICAN 1 INITIATIVES, EFFORTS, AND ACTIVITIES
The division continues to take a multifaceted approach to ensuring compliance with the
Massachusetts wage and hour laws, including enforcement, education, and outreach as well as oversight
of public bidding requirements. The division also is responsible for reviewing and ruling on applications
b)' businesses for waivers for certain workplace laws.
OVTIULL IN\^STIGATORYACTI\aTY
Fair Labor and Business Practices received and investigated in excess of 3,300 formal complaints in
Fiscal Year 2004. In many instances, FLBP's inspectors recovered payment of full restitution or provided
another appropriate remedy to the aggrieved employee without initiating the civil citation process or
15
BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR AND BUSINESS PRACTICES DIVISION
litigation. In other cases, consistent with its law enforcement mission and approach, FLBP's staff
employed its prosecution authority to pursue instances of unlawful conduct, and sought civil and
criminal sanctions, which were iinposed on workplace law offenders. Through these eftorts, FLBP
recovered in excess of $2.1 million in wages that were owed, but unpaid, to Massachusetts workers as
well as administrative and criminal penalties and costs.
PREVAILING WAGE ENFORCEMENT
Attorney General Tom Reilly continued to place a high priority on the entorcement ol prevailing
wage laws. FEBP inspectors conducted imannounced site inspections at nimierous public construction
projects across the Commonwe;tlth to encourage compliance and a level playing field tor all employers.
During Fiscal Year 2004, FLBP investigators conducted over 174 site inspections related to public
construction. The division increased its enforcement efforts over past years by issuing 108 prevailing
wage citations, up significantly from prior years.
I'he following provides a representative sampling of prevailing wage cases undertaken by FLBP
during Fiscal Year 2004:
• Milton Marder Defendant indicted on 1 2 counts of Larceny by Fitlse Pretenses and prevailing
wage violations. These charges stemmed from multiple complaints and a lengthy investigation
involving the exploitation of immigrant workers, who were performing work on public
construction projects across the state. Sentencing pending. Proposed sentence will include jail
time, restitution, and debarment.
• Cameron Painting Painting contractor signed Settlement Agreement with two intentional
citations with restitution and penalties of $10,000 for failing to pay prevailing wage in
Belchertown (High School) and Springfield (Housing Authority).
• Continental Contracting Non-payment/Prevailing wage investigation. Citation issued
for failing to pay 4 1 employees two-weeks pay for work performed in February 2003 on the
Groton-Dunstable High School. Non-payment occurred when the company changed pay
period from weekly to bi-weekly and subsequently left the project, ("itation issued for $76,063
in restitution and $9,000 penalty. Company agreed to charges and to pa\- restitution.
• Cornerstone Masonry Prevailing wage case arising from employer's misclassification of
employees as apprentices. Settlement Agreement reached, including payment of approximateU'
$37,000 in restitution, and a $2,500 penalty.
16
BL SINESS AND LABOR PROTECTION Bl'REAU FAIR LABOR AND BUSINESS PR-'KCFICES DIVISION
• Victor Perez, Percor, Inc. Scttkincnt Agreement reached with employer inckiding an
admission ofvvilllul conduct, restitution, and a $6,500 penalty, arising from employers failure
to pa\' prevailing wages to 28 carpenters and laborers due S72, 023.1 1 in wages.
• Kenbar, Inc. Electrical contractor for Leominster Housing Authorit)' misclassified an
emplo\'ee as an ap[irentice. Restitution S.i,()0() and S35() fme.
• New England Piping Issued four citations along with Settlement Agreement for prevailing
wage violations on toiu projects. Total restitution for 17 tinployees w;is $5,048.44, and $1,940
in penalties.
PA^TvlENT OF WAGE.S ENFORCEMENT
Fair Labor and Business Practices is authorized to issue civil citations tor violations of the wage and
hour laws. A civil citation issued by FLBP can require the employer to comply with the law, pay
restitution to the employees, and pay a civil penalty. FLBP has issued such citations to employers that
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. During Fiscal Year 2004, FLBP issued 227 civil citations for violations of the payment of wages
and prevailing wage statutes. This number represents a significant increase in enforcement action taken
by the division as compared with the 165 civil citations issued in Fiscal Year 2003.
The following provides a representative sampling of unpaid wage cases undertaken b)' FLBP during
Fiscal Year 2004:
• Ground Round Company declared bankruptc)' February 1 9, 2004 and terminated virtually
all emplovces owing wages and vacation pay. Three hundred ninety-three emplos'ees in
Massachusetts were owed $4 13,000. Partial payment of wages has been made. Awaiting balance
of payment upon completion of auction. Previously, a letter from Attorney General Reilly was
sent to all 3,100 Ground Round employees nationwide. The letter informed workers on steps
they could take regarding wages, pension, and other benefits.
• Commoiivvealth v. Cortell &: lason M. Cortell & Associates Disposition and sentencing
on charges of embezzlement b)' a fiduciary and general larceny arising from theft of profit-
sharing plan assets, and failure to reniit emplo\'ee wage deductions to 401(k) plan. Defendant
pleaded guilty to all charges. Terms include: One year in the House of Correction, suspended
for five years, special condition six months of home confinement, payment of appro.ximately
$240,000 in restitution on date of sentencing, and debarment from contracting with public
agencies for five years.
17
BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR AND BUSINESS PRACTICES DIVISION
• MVP, Inc. Settlement agreement with employer, which resolved impact of employer's
retroactive change in its vacation policy affecting nearly 140 employees statewide, resulting in
restitution in the amoiun oi $69,594.29 in unpaid wages.
• Bilafer Landscaping Company Bilafer pleaded guilty in 2002 on multiple violations of the
wage and hour laws, and was placed on probation with a six-month suspended sentence until
2004. Bilafer was subsequently found to be in violation of the terms of his probation and was
sentenced to 10 days in the House of Correction. Bilafer again violated the terms of his probation
and was sentenced to serve six months in the House of Correction suspended until November
5, 2004 on six matters, and 20 days in the House of Correction on two matters. Bilafer
subsequently paid all outstanding restitution in the amount of $13,649.50, and fines and court
costs of $1,950.
• Good Health, Inc^ Health food store agreed to pay 22 of its employees for premium pay
owed for working Sundays in retail stores, totaling $22,233.28 in restitution with $4,950 penalty.
• Marguerite Concrete, Inc. Complaint received that this Franklin concrete company failed
to pay overtime to employees. Payroll records were received from the company pursuant to a
payroll demand covering a two-year period. An audit of the records revealed approximately
$51,208 was owed to 24 employees. Company has corrected the violations prospectively.
Company has agreed to enter into Settlement Agreement, paying restitution in ftill and a $4,000
penalty by July 31, 2004 .
• Mediplex Group, Inc. d/b/a Sunbridge Healthcare Nursing home owner in Millbury sold
the flicility on July I, 2003. Sunbridge had an agreement to Kmd Paid lime Off pool for
employees to retain benefits with new owner. Discrepancies in the tracking of time between
local and centtiil management during changeover to centralized tracking system in April 2004
led to an under-funding of the pool. It was agreed that $58,000 would be paid in restitution
and penalties as part of a Settlement Agreement with a compliance plan.
• TruGreen Lawn Care Landscape company is subsidian' corporation of TVuCreen/Chemlawn.
Overtime complaint affecting 92 emplo\'ees. Settlement Agreement with citation; $63,000 in
restitution and penalties.
• Drive O'Rama, d/b/a Mill Stores. Inc. v. Office of the Attorney General. Fair Labor and
Business Practices Division Decision granting simimarv judgment in the Office of the Attorney
Generals favor in declaratory judgment action filed in Barnstable Superior Court, declaring
18
bL SINLSS AND LABOR PROTECTION BUREAU PAIR LABOR AND BUSINESS PR,AC1 ICE^. DIVISION
that "gift shop" retail employer is obligated to pa\' holiday pay to its hourly non-exempt workers
on certain holidays, and that failure to tlo so is a violation of the Wage Payment Statute.
• Best of Care Non-pa\'meni ot overtime irnestigation. This ILunham home health care
agenc)' admitted to not [ia)'ing overtime and agreed to pertorm self-audit. Entered into
Settlement Agreement and paid restitution ot approximatel)' $2.^,000 to }'■) employees.
• Other non-payment cases Another portion ot the ca.ses resolved b\- the division involved
successfully concluding another 465 cases resulting in S230 or less in restitution ($57,543) for
individuals, and another 290 cases resulting in restitution between $25 1 and $500 for individu.ils
($105,184). The restitution for these low wage earners was in excess of $162,700.
PUBLIC CONTRACTS OVERSIGHT
The Attorney General's Office continued to provide a professional and accessible forum for the
resolution ot public construction bidding disputes, including investigating allegations ot improprietv
in connection with public-works project bidding. 1 he Attorney Generals primary enforcement efforts
in this area have been undertaken by FLBP's Public Contracts Unit. The primary tool emplo\'ed by the
Public Contracts Unit includes adjudication ot disputes through an administrative hearing process. In
Fiscal Year 2004, the unit issued written decisions in 42 cases.
The unit also provided informal advice by telephone to the Commonwealth's awarding authorities
and contractors who bid on public-works projects. During Fiscal Year 2004, 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. Felephone assistance also has served as a
significant prevention tool, often delivering the information necessary to prevent (or tjuicklv remedy)
a \ iolation of the public bidding laws.
Enforcement efforts also included an educational component that provided public contracting
participants with information regarding the public bidding laws. Among other things, the Attorney
Generals Office distributed the written public contracts bid protest decisions to the public construction
communit)'. In addition, FLBP's staff participated in educational programs that provided substantive
and procedural information to the construction industry and their counsel necessary to properl)' solicit
or submit public-works construction bids. Such proactive efforts have served many useful purposes.
The following are two examples of significant public contract disputes resolved by FLBP in Fiscal
Year 2004:
19
BUSINESS AND LABOR PROTECTION BUREAU FAIR LABOR AND BUSINESS PRACTICES DIVISION
• General Mechanical v. Town of Dedham A HVAC sub-bidder intended to subcontract
commissioning oi Automatic lemperature Controls system and other software work for the
$2.2 million HVAC subcontract. This was not "construction" labor for which a sub-subbitl
listing was required at Paragraph E of the statutory sub-bid hirm. Protest DENIED.
• Millwrights Local Union # 1121 v. Massachusetts Port Authority $4 million contract for
"maintenance" of a four-mile, conveyor belt baggage handling system that was bolted, wired
and welded to Terminal E at Logan was a contract for repair of public-worlcs that must be
publicly bid. Protest ALLOWED.
CHILD LABOR
The Attorney General remains committed to ensuring a safe workplace for the youth of the
Commonwealth. During Fiscal Year 2004, FIBP inspectors investigated reports of child labor violations
and conducted workplace site inspections, visiting businesses where minors were employed, noting
violations and advising employers of their responsibilities and legal obligations to provide a safe and
harmonious work environment for minors. The division also provided outreach to children through
programs presented at the schools and through career day events.
Among the routine investigations handled throughout the year, the division also continued to
monitor prior cases for compliance with the child labor laws.
Dunkin Donuts FLBP continues to monitor a three-year compliance plan following an investigation
that revealed thousands of child labor and wage violations. The agreement included a $150,000 civil
fine as well as an oversight plan by an outside auditor. The Attorney Generals OfTice and the L'nited
States Department of Labor conducted second and third round training sessions for Dunkin' Donuts
managers. The Office also conducted training for .300 franchise owners and managers its part of a
multi-agency New England training.
WAIVERS AND INDUSTRIAL HOMEWORK
FLBP is charged by statute with the authority to waive certain rec]uiremeuts of the labor laws uruler
certain conditions. During Fiscal Year 2004, FLBP processed more than .340 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.
20
BL SINESS AND LABOR PROTECTION BUFtEAU
1 AIR LABOR AND BUSINESS PIUCIICUS DIVISION
STATISTICAL SUMMARY
Rcsiiiuiioii Recovered
Hotline Cills
Formal (Complaints Filed
Cases Closed
Civil Citations Issued
I'liblic Contract Dispute Decisions
In excess of $1,971,045
In excess of 70,578
3,381
3,292
227
42
OUTREACH, EDUCATION, AND TRAINING
Attorney General Reilly has long believed that public education plays an important part in promoting
compliance with workplace laws. Accordingly, outreach to the employee and employer communities,
and their unions, trade associations, counsel, and other advocates, has been a FLBP priority. One
means to this end has been FI.BP's telephone hotline, which has served as an information source for
workers and businesses. In Fiscal Year 2004, the FLBP hotlines received over 70,500 inquiries. In
many instances, workers were apprised ot their rights and were assisted in obtaining their rightful
wages.
The Immigrant Worker Outreach Project, established several years ago, has sustained the test of
time. Due to the successful establishment of this program, FLBP continues to receive a large volume of
complaints and referrals from the immigrant community. FLBP stall members made several
presentations to immigrant advocacy groups during the year to inaintain this important program. Ihe
program iilso began to make presentations to employer groups in an effort to educate that group regarding
their rights and responsibilities concerning immigrant employees.
Outreach was conducted in orher areas as well. During Fiscal Year 2004, FLBP staff made a total
ol 52 presentations to bar association and continuing legal education groups, professional organizations,
trade associations, labor imions, and employee advocacy- groups. Lhese presentations covered topics
21
BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT
such as wage and hour laws, employee and employer rights and responsibilities under these laws, worker
classification under the prevailing wage law, and the treatment of accrued vacation time as wages.
The division has also sought to educate relevant communities about wage and hour issues through
the production and distribution of advisories and other publications, including a Mininuini Wage and
Workplace Rights poster. Currently, the division has such publications in eight different languages.
MEDICAID FRAUD CONTROL UNIT
The Medicaid Fraud Control Unit (MFCU) was established to protect the Massachusetts Medicaid
program from fraudulent practices. The Office of Medicaid administers the provision of over $6 billion
of health care services to over 900,000 indigent and disabled recipients in Massachusetts. In addition
to prosecuting corporate and individual health care providers that commit crimes against the Medicaid
program, MFCU also was responsible for prosecuting companies and individuals, whom abused,
neglected, or mistreated elderly and disabled residents of the Commonwealth's 525 long-term-care
facilities, most of which have been funded extensively by the Medicaid program.
During this reporting period. Attorney General Tom Reilly's MFCU remained committed to
aggressively investigating and prosecuting Medicaid provider fraud, and those who abuse, neglect, or
financially exploit elder and disabled residents of long-term-care facilities. The MFCU brought several
recovery actions utilizing the state's civil Medicaid fraud statutes, and reviewed over 529 patient abuse
and neglect referrals. In addition to the criminal cases reported herein, the Massachusetts MFCU
returned $13,233,595.26 to the Medicaid program through restitution, tines, and penalties.
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 has produced.
MFC'U included the following staff members during Fiscal Year 2004: Nicholas J. Messuri, Division
Cfiief; David Marks, Deputy Division Chief: Steve McC^arthy, Deputy Division Chief and Chief ot
Investigations; Steven Devlin, Deput)' Chief ot Investigations; Ann Ackil; Bruce Anderson; Al Brown;
Eileen Casey; Julie Chattopadhyay; Peter Clark; John Curley; Bessie Curtis; Catherine Fielding; Richard
Heidlagc; Linda Landry; Teresa Ho Liu; Anthony Megathlin; Thomas O'Neill; Robert Patten; Shirley
Rokosz; Mike Russo; Joseph Shea; Siisanne Snow; Christine Soloperto; Jody Soucie; Toby Unger; and
Kris Wilhelmi.
22
BrSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT
SIGNIFICANT INITIATIVES, EFFORTS. AND ACTIVITIES
During Fiscal Year 2004, MFC'U brought both criniiii.il and civil eiilorccnienr 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 the\' provided to the Medicaid progr.mi, inflated the costs of their services,
provided medically unnecessary services, or violated Medicaid's anti-kickback laws. As a result of its
efforts, MbCU initiated and conducted approximately 160 investigations, in addition to reviewing
over 500 patient abuse and neglect relerrals, obtained intlictments, and secured convictions against
corporate and individual defendants.
In the past fiscal year, a great deal of MFCU attention was focused on prescription drug pricing,
from two very different perspectives: (1) manufacturer price inflation through average wholesale price
(A\XT) fraud, kickbacks, and other schemes; and (2) diversion of prescription drugs for non-medical
use b\' physicians and other providers. Much of the work on the first set of investigations is being
undertaken with various MFC^Us in other states and the United States Attorney's Office. MFCU has
also continued to devote resources to its mission of protecting elders in nursing homes, through
prosecution of abusers, investigation of financial fraud by nursing homes and elder care facilities, and
coordination with the Department of Public Health's Division of Fiealth Care Qualit)'.
In addition, MFCU investigated physicians and psychiatrists who prescribed controlled substances
for non-medical reasons, or that were not supported by medical diagnosis or necessity. MFCU
investigated dentists and durable medical equipment companies for upcoding and unbundling their
services. MFCU also looked at the area of pharmacy chains and pharmaceutical companies that
overcharged the Medicaid program, and inflated the costs of prescription drugs. In Fiscal Year 2004,
MFCU also investigated the relationships between physicians, hospitals, and laboratories to detect
illegal referrals, kickbacks, and issues of substandard patient care.
SIGNIFICANT CASE SUMMARIES
Consistent with its mission to protect the Medicaid program on a statewide basis, MFCU made
extensive use of the Special Crandjurv' sitting in Boston as well as its statutor)' and regulatory discover}'
authority, to obtain indictments and convictions, and to recover funds for the Medicaid program well
in excess of its budget.
23
BUSINESS AND LABOR PROTECTION BUREAU MEDICAID PRAUD CONTROL UNIT
With increased professional training and a multi-disciplinary approach to investigating and
prosecuting health care fraud and nursing home abuse, the Massachusetts MFCU is proud to highlight
the following significant case activities during this reporting period. Ihese accomplishments represent
a sampling of activities during this period and do not reflect all cases handled by the Unit during the
fiscal year.
The following is a sample of cases undertaken by MFCU during Fiscal Year 2004.
PHARiMACEUTICAL PRICING
• Massachusetts MFCU files suit against 13 of Nation's Leading Generic Pharmaceutical
Manufacturers Attorney General Tom Reillys MFCU filed suit against 13 of the nations
leading generic pharmaceutical manufacturers, alleging that they separately participated in pricing
and marketing schemes that resulted in a loss of more than $50 million to the state Medicaid
program. The case is pending in the United States District Court for Massachusetts.
• Abbott-Ross $<S36, 123.42 returned to Massachusetts Medicaid based on allegations that
Abbott-Ross fraudulently billed for enteral feeding pumps and supplies.
• GlaxoSmithKline $1,797,016.21 returned to Medicaid based on allegations that
GlaxoSmithKline violated Medicaid "Best Price" requirements thtough the labeling of anti-
depressant Paxil and inhalant Flonase, specifically for Kaiser Permanentc.
• Bayer $3,727,074.52 returned to Medicaid based on allegations that Bayer violated
Medicaid "Best Price" requirements through the labeling of antibiotic Cipro and anti-
hypertensive Adalat CC, specificdly for Kaiser Permanentc.
• Schering-Plough Pharmaceutical manufacturer paid $9,949,026 to the Massachusetts
Medicaid program to settle charges that it avoided its responsibility to pay tebate funds by
failing to report discounts and other improper inducements to keep health maintenance
organizations providing the antihistamine Claritin.
MEDICAL EQUIPMENT AND SUPPLY COMPANIES
• Elaine Mishel Shoe Store A Brighton-based durable medical equipment company agreed
to repay more than $336,000 to the state Medicaid program, and was banned from future
participation.
lA
BL SiNtSS AND LABOR PROTECTION BUREAU MEDICAID \'R.\VD CONTROE UNIT
• All American Home Aid A Brighroii-bascd duuhlc mcdK.il Lqiii[inunt company entered
into a civil settlement agreement with MFCU and tiic Division of Medical Assistance to rest)lve
$175, ()()() in Medicaiil I'lograni overpa\-ments.
PHARMACIES
• Richard Bonneau and New Bedford Pharmacy, Inc. A New Bedford pharmacist and
pharmacy corporation pleaded guilty to 31 counts of larceny over $250, and Medicaid fraud
for fraudulently submitting claims to Medicaid for filling prescriptions that were never ordered
by physicians and/or never obtained b\' patients. The pharmacist was sentenced to 18 months
in the House of Correction, suspended tor three years, and ordered to pa\' restitution of $85,747
within six months to the Medicaid program.
PHYSICIANS
• Vasant Thacker, M.D. A Belmont physician agreed to pay the state and federal governments
a total of $203,427 to resolve claims tiiat she exaggerated tiie level of patient visits billed to
Medicare and Medicaid.
• Frederick Wagner, OD A Melrose optometrist agreed to repay the state Medicaid program
$50,000 for payments he obtained by submitting improper claims for optometrj' services to
elderly nursing home residents. The optometrist billed the state Medicaid program for more
costly and complex eye examinations than he actually performed.
NURSINC HOMES
• Commonwealth v. Isaac loseph A former certified nursing assistant was charged with
multiple criminal complaints for patient abuse and assault and batterv' on five elderly Alzheimer
nursing home residents.
HOME HEALTH
• VNA of Middlesex-East A Wakefield visiting nurse association repaid the Massachusetts
Medicaid program $88,990 for overpayments made after the agency submitted erroneous claims.
STATISTICAL SUMMARY
Health Care Fraud hivestigations 82
Formal Health Care Fraud Cases Opened 62
25
BUSINESS AND LABOR PROTECTION BUREAU MEDICAID FRAUD CONTROL UNIT
Formal Health Care Fraud Cases Closed 37
Patient Abuse Referrals Reviewed 529
Patient Abuse Investigations 139
Formal Patient Abuse Cases Opened 3
Formal Patient Abuse Cases Closed 3
Civil Dispositions 12
Criminiil Indictments 1
Criminal Dispositions
Restitution and Fines Recovered $13,233,595.26
OUTREACH, EDUCATION, AND TRAINING
Outreach and education initiatives have served as integral components in inaintaining MFCUs
high level of efficiency. MFCU staff had regular dealings with the Division of Medical Assistance,
which administers the Medicaid program, in connection with a range of issues, including working with
the Department of Public Health and the Pharmac}' Board in an effort to ameliorate prescription drug
abuse, including Oxy<"ontin. MFCU also worked with the Department of Mental Health in connection
with patient abuse issues. In addition, staff were involved in a drug diversion tasklorce with the
Massachusetts State Police and the DEA. MFCUs Director of Investigations continues to lead the
Northeast Healthcare Law Enforcement Association's efforts in coordinating joint investigations and
training for rhe Northeast MFCUs. MFCU staff also were actively involved with the Boston office of
the FBI on a healthcare fraud working group.
MFC'U staff continued to take advantage of the rich training opportunities available nationwide to
health care law enforcement personnel, with several new investigators and lawyers attending multi-day
trainings and conferences. The Massachusetts MFCU Director served as Vice President of the National
Association of Medicaid Fraud Control Units. The Association coordinates multi-state investigations
and creates and sponsors health care fraud training sessions for AA(iS and investigators. Staff also
continued to attend in-house programs that targeted areas such as improved courtroom techniques.
26
BLSINESS AND LABOR PROTECTION BUREAU MEDICAID tR.U'D CONTROL UNIT
The Massachusetts MHCU is committed to providing its pcisoiinel with training and education
regarding current techniques and information pertinent to the objectives olthe unit. A substantive "in-
house" training program has been maiiuained to augment the stalt's knowledge regarding admimstrative
and procedural operations.
I he MFCUs training directive is consistent with Attorney General Reilly's overdl conunitment to
enhancing the breadth, quality, and professionalism of services provided by the Office of the Attorney
Cicneral. In addition, assistant attorney generals, investigators, and support staff have participated in
training seminars and conferences offered b)' various state, federal, ami national organizations. Kxternal
training opportimities provided a major vehicle through which the MHC.'U staff sta)'ed abreast of
investigative and prosecutorial techniques and developments; and allowed for the exchange and discussion
of information and ideologies with colleagues from multi-disciplinary perspectives.
MFCU staff made numerous presentations on Medicaid fraud prevention and hcLilth law to outside
groups, such as the Healthcare Corporate Compliance Conference, National Association of SURS
Officials, Colleges and Universities, and the Medical Payment Systems Association. Staff also gave
presentations on elder abuse and attended programs aimed at enhancing prosecution of this heinous
crime.
During the upcoming year Attorney General Reilly will continue to target health care providers
that commit Medicaid provider fraud as well zs caretakers who abuse and neglect elder and disabled
27
CRIMINAL BUREAU
Appellate Division
Corruption, Fraud, and
Computer Crime Division
Victim/Witness Assistance Division
Specl\l Investigations and Narcotics Division
Environmental Crimes Strike Force
Insurance and Unemployment Fraud Division
Criminal Justice Policy Division
Victim Compensation and Assistance Division
Financial Investigations Division
Safe Neighborhood Initl\tive Division
CRIMINAL BL:r<EAU
Criminal Bureau
The Attorney General s C'riininal Bureau has tour broad missions: investigate and prosecute violations
oi state criminal law, promote ettective law enforcement, criminal justice, and crime prevention, and
provide assistance to crime victims.
The Criminal Bureau's staff o( experienced Assistant Attorneys General, State Police detectives, and
investigators tocus on investigating and prosecuting violations of state criminal law that result in or
involve significant economic loss or injur}', harm to the environment, misconduct b}' public employees
or elected otficids, crimes against public agencies, organized crime, large-scale drug trafficking, complex
criminal conspiracies, consumer fraud, and crimes involving computers and other forms of technolog)'.
The majorit)' of criminal ca.ses prosecuted by the Criminal Bureau result from investigations conducted
by the Bureau's 23 State Police detectives, three Environmental Police officers, and seven civilian
investigators. Ca.ses are developed through citizen complaints and referrals from other local, state, and
federal agencies. During Fiscal Year 2004, the Criminal Bureau received more than 2,243 inc|uiries and
complaints from citizens and other agencies. Additionally, Assistant Attorneys Generiil in the Criminal
Bureau reviewed 89 rendition and extradition requests forwarded to the bureau by the Executive Office
of the Governor.
A.ssistant 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 emplo)'ees who
are sued in the performance of their duties.
The Criminal Bureau promotes effective law enforcement through its Criminal Justice Policy
Division. This division reviews crime data and trends, proposes legislation, participates in training
programs for law enforcement officers and other criminal justice professionals, and maintains working
relationships with many local, state, and federal criminal justice agencies. Through these working
relationships, bureau members regularly convene or participate in multi-agency working groups dealing
with criminal justice issues, such as anti-terrorism planning, drug and alcohol abuse, court and sentencing
reform, prisoner re-entry initiatives, domestic violence, juvenile justice, and child abuse.
The Criminal Bureaus Safe Neighborhood Initiative Division promotes crime prevention in
communities by fostering partnerships between schools, communit)' groups, prosecutors, police officers,
courts, and other criminal justice professionals. Through these partnerships, the division helps
communities implement crime prevention programs and other initiatives to prevent and deter
involvement in crime, steer those involved in minor crimiuiil offenses into prevention programs, and
31
Cr<IMINAL BUREAU
aggressively prosecute those responsible for crimes that severely impact the communitys quality of life.
During Fiscal Year 2004, there were Safe Neighborhood Initiative programs in lainuon, Brockton,
Lawrence, Methiien, Orange, and the Dorchester and Cirove Hall sections of Boston.
The fourth primar)' mission of tiie Criminal Bureau is to provide support to victims of crime. The
Bureaus Victim Compensation and Assistance Division provides fmancial support and social services
assistance to crime victims and relatives of homicide victims. The division reaches victims and their
families through outreach efforts and relationships with police departments, court officials, and social
service agencies. During Fiscal Year 2004, the division received more than 1,200 applications for
financial assistance from crime victims and their family membeis, and distributed almost $3 million to
these victims and family members.
In April 2004, the Insurance and Unemployment Fraud Division (lUFD) was transferred from the
Business and Labor Protection Bureau to the Criminal Bureau. lUFD has as its core mission the
investigation and prosecution of fraud against all t)'pes of insurers in Massachusetts, and against the
Commonwealth s imemplovment security system. Prior to 1 993, such crimes were prosecuted through
the Criminal Bureau. Lhe return of the division to tiie Criminal Bureau has allowed for greater
coordination on cases involving a range of white-collar criminal offenses and has facilitated
communication with the State Police on insurance fraud investigations.
The Chief of the Criminal Bureau is Kurt N. Schwartz. The Dcput)' Chief of the Bureau is
Michele L. Adelman.
The Criminal Bureau is organized into the following divisions, each of which reflects an area of
specialization and expertise: Appellate; C^orruption, Fraud, and Computer Crime; Victim/Witness
Assistance; Special Investigations and Narcotics; Environmental Crimes Strike Force; Insurance and
Unemployment Fraud; Financial Investigations; Crimin;il Justice Policy; Safe Neighborhood Initiative;
Victim Compensation and Assistance; and State Police Detective Unit.
The Divisions Chiefs within the Criminal Bureau during Fiscal Year 2004 were: Appellate Division,
Cathryn Neaves; Corruption, Fraud, and Computer Crime Division, John A. Grossman; VictimAX'itness
Assistance Division, Kathleen Morrissey; Special Investigations and Narcotics Division, William F.
Bloomer and thereafter Eileen O'Brien; Environmental Crimes Strike Force, Paul J. Molloy; Insurance
and Unemployment Fraud Division, Eliot Green; Financial Investigations Division, Paul Stewart;
Criminal Justice Policy Division, James O'Brien; Safe Neighborhoods Initiative, Ellen Frank; \^ictim
Compensation and Assistance Division, Cheryl Watson, and thereafter Deborah Fogart}-; State Police
Detective LJnit, Captain Stephen Matthews.
32
CRIMINAL BUREAU APPELLATE DIVISION
1 he C^riminal Bureau also hail two bureau attoine\'s during Fiscal Year 2004. Assistant Attorney
(Jeneral Mary A. Phillips ser\ed as the Bureau s ( .rand Jury ( 'oordinator, and Assistant Attorney (leneral
Beth Merachnik served a.s the Senior Litigation ( "ounsel for the bureau.
APPELLATE DIVISION
The Appellate Division handles a wide variety ot criminal, federal habeas corpus, state habeas
corpus, and other civil cases that impact criminal prosecutions and the criminal justice system. The
division's caseload includes appeals and post-conviction matters in criminal cases prosecuted at the trial
level b\' the Attorney Generals 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 sued civillv in state or
federal court for actions taken during the criminal justice process. The Assistant Attorneys General in
the division defend the constitutionalit)' of criminal statutes as well as other statutes, court rules, practices,
and procedures that concern ;ill aspects of the criminal justice sj'stem; represent the interests of prosecutors
when subpoenaed to testi^' or provide documents in federal civil cases; supervise agenq' staff attorneys
handling litigation involving the Department of Correction, the Parole Board, and the Commissioner
of Probation; and handle appeals and federal court litigation concerning the Parole Board.
In addition to their casework, division attorneys provide assistance to other Oiminal 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 identif)'ing and acting as a clearinghouse on criminal law issues of statewide importance and interest.
The Appellate Division files approximately 50 appellate briefs per year in the United States Supreme
Court, Court of Appeals for the First Circuit, Supreme Judicial Court, and Massachusetts Appeals
Court. The division files a»iicui briefs on behalf of the Attorne)' General in cases having broad impact
and importance to the criminal justice s)'stem, consistent with the Attorney General's statutory
responsibility as the chief law enforcement officer of the Commonwealth. The division also files in the
United States District Court approximatelv 130 substantive memoranda of law per \'ear in opposition
to federal habeas corpus petitions.
a
CRIMINAL BUREAU APPELLATE DIVISION
The Appellate Division included CJathryn Neaves, Division C'hief; James Arguin; Eva Badwav;
Annette Benedetto: Olivia Blanchette; David Lieber; Dean Mazzone; Maura McLaughlin; Natalie
Monroe; Susanne Reardon; Michelle Sheridan; Daniel Sniulow; and Linda Wagner.
SIGNIFICANT CASE SUMMARIES
• Sarourt Noni v. Luis Spencer (First Circuit) Appeal from denial of federal habeas petition
challenging Middlesex County conviction for first-degree murder. On July 29, 2003, the First
Circuit affirmed the district court's denial of habeas relief
• Arthur Jackson v. William Coalter (First Circuit) Appeal horn denial of federal habeas
petition challenging 1998 Suffolk County conviction for armed robbery. On July 28, 2003,
the First Circuit affirmed the district court's order denying habeas relief
• Felix Santiago v. Luis Spencer (First Circuit) Appeal from denial of federal habeas petition
challenging ability ot Commonwealth to retr)' the juvenile in Suffolk Count}' for murder after
he passed jurisdictional age for juvenile court, claiming ex post facto violation and due process
violation. On September 22, 2003, the First Circuit affirmed the district court's denial of
habeas relief
• Juan Castillo v. lames Matesanz (First Circuit) Appeal from denial of federal habeas
petition challenging 1996 Essex Count}' trafficking conviction. On October 22, 2003, the
First Circuit affirmed the district court's denial of habeas relief
• Commonwealth v. Frederic Lepper (Massachusetts Appeals Court) Appeal from conviction
for larceny scam. On November 19, 2003, the Appeals Court affirmed the defendant's
convictions for multiple larcenies.
• Roger Norton v. Luis Spencer (First Circuit) Appeal from a district court order granting
a writ of habeas corpus in a challenge to a Hampden Count}' conviction for indecent assault
and batter}'. On October 30, 2003, the First Circuit affirmed the district court's order granting
a writ of habeas corpus.
• Carlos Luna v. Commonwealth (First Circuit) Appeal from district court's denial of federal
iiabeas petition challenging Suffolk County convictions for perjury and for filing false police
reports concerning the investigation of the murder of Sherman Criffiths. In October 2003, the
First Circuit affirmed the district court's order denying habeas relief.
34
CRIMINAL BL^RtAU
AI'I'tLLATL DIVISION
• Commonwealth v. Maxine Sneed (Supreme Judicial Court) Commonwealth's appeal
from an order of rhe Boston Municipal (Jourt that suppressed the defendant's statements in a
pending prosecution h)r larcen\' premised upon an alleged Miranda violation. In October
2003, the full Lourt \acatei.l the order grantint; the motion to suppress.
• Joseph DeCicco v. Luis Spencer (First Circuit) Appeal from denial of federal habeas petition
challenging 1994 Suffolk County conviction for second-degree murder. On March 24, 2004,
the First (Circuit affirmed the district court's denial of habeas relief.
• Russell Horton v. George Correia (First Circuit) Appeal hom denial of federal habeas
corpus petition challenging 19^>8 Pl\'mouth Count)' convictions for first-degree murder and
armed iissault with intent M murder. On May 26, 2004, the First Circuit atfirmed the district
court's denial of habeas relief.
• George Correia v. Timothy Hall (First Circuit) Appeal from denial of federal habeas
petition challenging 1996 conviction for Assault and Battery with a Dangerous Weapon. On
April 16, 2004, the First Circuit affirmed the district court's denial of habeas relief
• Thomas Bates v. Michael G. Grant, Sr. (First Circuit) Appeal from dismissal as unexhausted
federal habeas petition challenging 1991 Worcester County convictions for, among others,
rape of a child. On May 4, 2004, the First Circuit affirmed the district court's order dismissing
the petition as unexhausted.
STATISTICAL SUMMARY
CASES
CASES
TOTAL CASES
OPENED
DISPOSED
HANDLED
Federal Habeas
176
107
538
Federal C^ivil
14
6
65
State Civil
28
21
93
State Habeas
8
10
49
35
CRIMINAL BUREAU APPELLATE DIVISION
Criminal 15 11 94
c. 211, §3 and Other
Single Justice Cases 16 6 40
TOTAL 257 161 879
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
In addition to the large caseload handled by the division, the division became involved in a number
of significant initiatives. Among these efforts were the following: Elder Task Force, Clerk, American
Middle Eastern Lawyers Association, Paul McLaughlin Center, Volunteer Reader, and Council Member,
Criminal Justice Section Council of the Massachusetts Bar Association.
OUTREACH, EDUCATION, AND TRAINING
The Appellate Division devoted a substantial amount ol energy and resources to training and
outreach. These efforts included the following:
Massachusetts District Attorneys Association Conference;
Commonwealth Appellate Attorneys Action Project;
Lecturer and Clinical Coordinator at Harvard Law School;
Comments Editor, Masscichusetts Law Review,
Associate Editor, Massaehwetts Law Review-,
Representative at the Massachusetts Citizen Corps Coiuicil;
Tutor at the Paul McLaughlin Center;
Co-chair of the BBO's September 1 1''' Victim Compensation Fund Committee;
Committee Member: Regaining Ones Self-Esteem (violence prevention organization);
Volunteer Reader at the Marr Boys and Cirls Club; and
Panelist, Clerks Seminar Series by Administrative Office of the Trial Court.
36
CRIMINAL BURLAU CORRUPTION. FR.-\UD, AND COMPUTER CRI.ML DIVISION
CORRUPTION, FRAUD, AND COMPUTER CRIME DIVISION
riic Corruption, Fraud, and Computer Crime Division (CFCC) within the Criminal Bureau protects
individuals and businesses residing or working in the Commonwealth by focusing on the following.
(1) Public Corruption — investigating and prosecuting crimes that compromise the publics
confidence in the government or harm public agencies. These cases include crimes committed
against state and local public entities and government-funded organizations as well as crimes
committed b\' govcrnniciu enipl()\'ces, agents, and contractors. (";Lses successfully prosecuted
by the division have included charges oi briber)-, larcenw prociuemcnt fraud, tax fraud, perjury,
filing filse reports, and accepting unlawful gratuities.
(2) Economic Crime — in\estigating and prosecuting all t\pes ot private-sector economic
and white-collar crime, including cases involving tiduciarx' embc/./.lement, conijilcx financial
fraud, and insider theft.
(3) Consumer Crime — investigating and prosecuting crimes targeting consumers, with an emphasis
on cases involving the Internet, charitable solicitations, unlicensed practice of law and other
professions, and home improvement contracting. The division pursues high-impact cases,
such as frauds perpetrated against children, the eldcrh', and immigrants, and cases involving
multiple victims in multiple counties.
(4) Computer Crime — incre<isingly, criminals, including con artists, cyberstalkers, hackers, child
pornographers, and child predators, use computers, the Internet, and other forms of technology'
to victimize others. In response, the division's specially-trained prosecutors and computer
kirensics specialists work with the State Police and financial investigators to investigate, arrest,
and prosecute c\'bercriminals, whether they tiy to attack the computer inh;istructure, compromise
the safety of our children as they "surf the Net,' or defraud consumers and businesses. In
addition, the division provides support and training in computer searches and forensics to law
enforcement throughout the Commonwealth. Cases handled by the division have included
charges of larceny, copyright infringement, unauthorized access to computers (hacking),
possession and dissemination of child pornographi,', and stalking anil harassment.
CFCC included the following staff members: John Crossman, Division Chief; Denise Barton;
Carolyn Bradshaw; Lillian Cox; I3ana Leccese; Madeline Leone; Laura Marlin; Ingrid Martin; Molly
Parks; Tina Skerrit; Dave .Swan; and Debra Wdsh. A significant number of our cases were also handled
b\' the Criminal Bureau's representative in "Western Massachusetts, Assistant Attorney Ceneral Matt
Shea, and b\- Senior Trial Counsel Beth Merachnik. CFCC worked as an integrated team with the
37
CRIMINAL BUREAU CORRUI'TION, FRAUD. AND COMPUTER CRIME DIVISION
members of the Financial Investigations Division, the State Police High Tech Unit, the State Police
White Collar and Public Corruption Unit, and the Victim/Witness Assistance Division. On various
occasions, we collaborated also with the Criminal Investigation Bureau of the Department of Revenue,
the Criminal Investigations Division of the Office of the Inspector Ceneral, the State Auditor, and a
number of other federal and local law enforcement agencies.
SIGNIFICANT CASE SUMMARIES
• Commonwealth v. Richard Anzivino (Suffolk Superior Court) Anzivino pleaded guilrv to
stealing over $800,000 from his employer, the Massachusetts Teachers' Union, and spending
much of the cash at Foxwoods and other casinos. The court sentenced him to two }'cars in the
House of Correction with one year to serve.
• Commonwealth v. Paul Cullinane (Ph'mouth Superior Court) CuUinane was caught
disseminating child pornography over the Internet to someone he believed was a 15-year-old
girl, and asking "her" to pose naked. The "girl" was actualh' an undercover Massachusetts State
Trooper. Cullinane pleaded guilty to disseminating child pornography and other charges and
was sentenced to two and one half years in the House of Correction with six months to serve.
• Commonwealth v. Kevin Fernandes (Fall River District Court) Fernandes was operating
a .series of cons on the Internet targeting consumers around the country. He was arrested as a
result of a joint New Bedford Police and United States Postal Inspector investigation. He
pleaded guilty to multiple counts of larceny over $250, and was sentenced to serve one year in
the House and was ordered to pay restitution to his victims.
• Commonwealth v. lames Pahlete (Cambridge District Court) Pahlete, a career criminal,
called a dentist's office, identified himself as a police officer assigned to the Office of the Attorney
General, .stated he was calling to collect a $12,000 debt on behalf of Verizon, and threatened to
send three police officers to collect the debt. He then hired a courier service to pick up the
money from the victim. After State Police followed the courier to Pahlete and executed a search
warrant, Pahlete pleaded guilty to extortion, larceny, identity fraud, and other charges and was
sentenced to serve two- and one-half years in the House of Correction followed by six months
in the House of Correction.
• Commonwealth v. Stephen I. Milstein (Norfolk Superior Court) Milstein was hired as
legal counsel by multiple clients for the sale of their real estate and stole approximately $462,000
38
CRIMINAL BL:R[:aL' CORRUITION. FRAUD. AND COMPUTER CRIME DIVISION
in escrow mom.)'. I Ic was disbaned from the practice ot law on Janiiar\- H), 2001. He pleaded
guilty ro eight counts of larceny ovei $250, and was sentenced to serve two years in the House
of Correction, suspended tor seven years, and ordered to pa}' full restitution, and perform
communit\' service.
• Commonwealth v. Timothy Nguyen (Suffolk Superior Court) Nguyen was a systems
administrator at a local investment firm. Knowing his expertise, a friend asked him to repair
his laptop. Instead, Nguyen installed a program that allowed him to sp\' on his "friend" and
gain information that he used to break into his victim's online investment and e-mail accounts
and harass the victim. Ngu\'en pleaded guilt}' to hacking, criminal harassment, and identity
fraud, and was senteticed to three years probation.
• Counterfeit DVD Cases (Suffolk Superior Court) Recognizing the persistent problem
with the overt sale of counterfeit DVDs and CDs in seemingly legitimate stores in the Downtown
Crossing area of Boston and responding to industiy concerns, CFCC prosecuted three individuals
for selling this contraband. All three admitted their guilt and were sentenced to probation. As
a result, thousands of contraband sound and video recordings were taken oft the market.
• Commonwealth v. Arlene Parker (Berkshire Central District Court) Parker failed to file
tax returns four \'ears in a row and filed a false return in a fifth year, hiding over $420,000 in
taxable income from the Commonwealth. She pleaded guilty to all charges and agreed to work
with the I)(^R to calculate and pay taxes, interest, and penalties.
• Commonwealth v. Helen Nevyton (Suffolk Superior Court) fhis case serves as a model of
how CFCC strives to handle public corruption. When the Department of Environmental
Protection (DEP) discovered that Newton, an emplo}'ee, had stolen some $75,000, the}' referred
the matter to the Office. The division then worked with the DEP and the Office of the State
Auditor to investigate the crime, but also to identif}' and correct the systemic problems that
allowed Newton to steal the mone}'. Newton pleaded guilt)' to larceny over $250, was sentenced
to two }'ears in the House of Correction with eight months to serve, and the balance suspended
for five years, and was ordered to pa}- full restitution.
Additionally, charges were brought dining this fiscal year as the result of three significant public
corruption investigations:
• Registry of Motor Vehicles (Boston Municipal, Waltham District, and Maiden District
Courts) Thirteen people, including six Registr}' of Motor Vehicles emplo\'ces, were arrested in
39
CRIMINAL BUREAU CORRUPTION, IRALID, AND COMPUTER CRIME DIVISION
relation to separate corrupt schemes at three Registr)' offices. In Watertown, employees and
others were selling new identities and licenses; in Maiden, employees and a co-conspirator were
selling licenses to people who were otherwise ineligible to drive; and in (diinatown, employees
and others were restoring licenses that had been revoked for operating under the influence and
habitual traffic violations.
• Everett School Bid Rigging (Middlesex Superior Court) After an extended investigation
by State Police assigned to the Office of the Attorney General and the Office of the Inspector
General, the Grand jury indicted 10 contractois, five companies, and a school district manager
in connection with a procurement fraud scheme that rook place over a several years. Ihe
School Superintendent, the manager, and one of the contractors were also charged in coimection
with the theft of two air conditioners from the school system.
• Department of Public Safety (Suffolk Superior Court) After an extended Grand Jun,'
investigation, the number two official at the Department of Public Safety was indicted for
issuing licenses to operate hea\')' equipment to multiple individuals that had failed to take the
requisite test or display the requisite skills. He was also charged with interfering with the
investigation by attempting to procure several other individuals to perjure themselves.
STATISTICAL SUMMARY
During Fiscal Year 2004, CFCC charged 53 individuals and corporations with various crimes,
including bribery, larceny over $250, unauthorized access (computer hacking), illegal wiretapping,
identity fraud, making false entries in corporate books, and dissemination of child pornography. Twent}--
nine people or companies pleaded guilty or othei'wise admitted to sufficient facts in Superior or District
Courts across the Commonwealth. Eight of these defendants were ordered to serve time in a counn'
House of Correction. Additionally, these defendants have been ordered to pa}' in excess of S5'^0,0()0 in
restitution.
The following chart summarizes the case referrals that CFCC screened for possible investigation
and prosecution during Fiscal Year 2004, and the number of those referrals that matured into formal
investigations. When a case fell into more than one category, we have tried to place it based on the
prospective lead charge.
40
CRIMINAL BURLAIJ
C:ORRUPTION, FRALJD, AND COMPUTER CRIME DIVISION
CASEDESCRIPIION
SCREENED
INVfLSTICArEr)
COMPUTER CRIMK
Auction/Internet Fraud (not troin IFCC)
Child Exploitation
CoinputLT Intrusions/Hacking
Threats/Harassment
Spam
Miscellaneous
Forensics Assistance
33
3
49
16
11
6
19
2
64
1
?
7
3
N/A
TOTAL
199
35
CASE DESCRIPTION
SCREENED
INVESTIGATED
FR,AUD
Fiduciary and Insider Embezzlement
47
22
Home Improvement Fraud
11
2
Identit)' Fraud
24
6
Other Consumer Fraud
73
12
Theh of I'rade Secrets or
Other Intellectual Property
Miscellaneous
TOTAL
165
43
41
CRIMINAL BUREAi:
CORRUI'TION, FRAUD, AND COMPUTER CRIME DIVISION
CASE DESCRIPTION
SCREENED
INVESTIGATED
corruptr:)N
State Emplo}'et' Corruption
Municipal Employee Corruption
Theft from the Commonwealth,
Cities, and Towns
Tax Fraud
Miscellaneous
Legal Advice or Assistance
Auditor's Reports and
Ethics Notifications Reviewed
46
37
5
19
12
7
56
24
22
2
16
3
N/A
N/A
TOTAL
CASE DESCRIPTION
MISCELLANEOUS MATTERS
182
SCREENED
13
67
INVESTIGATED
TOTAL
559
146
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
The division historically has been very involved in encouraging and coordinating efforts between
the public and private sectors to promote Internet and coniputer seciuit}'. This year those efforts took,
on added significance. For instance, two Assistant Attorneys General spent substantial time working
with the Executive OfFice of Public Safet)', the state Information Technology [division (ITD), the City
of Boston, MITRE and Dartmouth s Institute for Security Technolog)' Studies planning the state's role
in and then observing "Livewire ', the first national cyber- security' exercise. Additionally, an assistant
42
( RIMINALBURtlAll CORRUPTION. FFCVUD. AND COMPUTER CRIME DIVISION
;uc()rnc\' general sits on rhe .subeoniniittcc of I IDs Hntcrprisc Security Board that is planning the
Commonwealtli's participation in tlie niulii-state Information Sharing and Anah'sis Center (ISAC).
This ISAC will allow the Commonwealth to share information regarding cyber- and physical-security
with other states and with the federal government, and then will he a mechanism to disseminate
apfirojiriate information throughout state government, and to large municipalities as well. The Ofiflce
of the Attorney ticneral Iuls been hosting the monthly meetings of this group. Additionally, division
members continued to pla\' a leadership role with Infragard Boston, the FBI's public/private cyber-
security outreach program.
Without a doubt, however, the highlights of the outreach efforts come as a result of participation in
the Internet Crimes Against Children (ICAC) Task Force. The OfFice's dedicated ICAC prosecutor —
the first in the country — spends a significant amount of time on outreach and training both inside the
Commonwealth and throughout the countt}' as well as prosecuting cases and providing legal advice to
the Fask Force. Most notably, the ICAC prosecutor has created the Computer Crime Working Croup.
I'his group meets quarterl)' and includes prosecutors, police officers, and computer forensic analysts
from Massachusetts. Experienced in computer crime, these individuals discuss techniques and insights
in this dynamic area and provide support and training to be shared with colleagues in this specialized
field.
In the area of public corruption, the Office continues to work hard to maintain and renew
relationships with other agencies working in similar areas and now has regular contact with the Office
of the State Auditor, the Inspector ( ieneral, the Stare F^thics ( Ajmmission, the Department of Fducation,
and the Public F'niployee Retirement Board. Finally, CFCC prosecutors worked closely with staff from
the Executive Bureau to research, draft, and/or promote various legislative changes. The changes included
amendments to the administrative subpoena and search warrant statutes that would ensure that local
law enforcement has the tools to protect its constituencies from computer crime, and a new identity
theft bill.
OUTREACH, EDUCATION, AND TRAINING
CFCC devoted a substantial amount of energy and resources to formal training and outreach
efforts, particularly in the area of computer crime. This effort allowed the division to (a) teach people
and institutions to avoid becoming victims of high-tech crimes and (b) where the Office cannot prevent
the crimes from happening, ensure that law enforcement has the capacity to respond.
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CRIMINAL BUREAU VICTIM/WITNESS ASSISTANCE [)IVISION
Among the highlights in this area over the last fiscal year were participation in a number of law
enh>rcement training conferences focused on computer crime that were sponsored by various entities,
including the ICAC Task Force, the American Prosecutors Research Institute, and the National
Association of Attorneys General (NAAC).
The Office also offered training in other areas, such as teaching at a National White Collar Crime
Center program on anaij-zing financial records and providing training on identity fraud to a community
group at the West Roxbury District Court.
In addition, CFCC also participated in various communit}' service programs, including the Eighth
Grade Academy and the mock trial program of Citizen Schools. Finally, to ensure that the Office
remain current in the dynamic field of computer crime, assistant attorneys general attended a number
of free training programs including NAAG and NAC classes, seminars sponsored by the National
Center for Missing and E.xploited Children, and computer forensics training.
VICTIM/WITNESS ASSISTANCE DIVISION
The Victim/Witness Assistance Division (VWA) was developed to meet the following go;ils: (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 secondar)'
victimization associated with victims and witnesses' involvement in the crimin;il 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. 238B). Advocates provide victim advocacy, witness management, and consultation to the
following divisions in the Criminal Bureau: (1) Appeals; (2) Criminal Justice Polic)'; (3) Corruption,
Fraud and Computer Crime; (4) Environmental Crimes Strike Force; (5) Financial Investigations; (6)
Special Investigations and Narcotics; and (7) the State Police Detective Unit.
In some instances, advocates are assigned to prosecutions in other bureaus of the Office when the
prosecutor identifies the need for victim/witness services. Ihe nature of these cases varies depending
on the referral source. Advocates also provide victim/witness assistance on conflict cases referred to the
Office by the 1 1 District Attorneys' Offices across the Commonwealth. These referrals typic;ill\' involve
ca'ses of violent crime. The Victim/Witness Assistance Division, in an effort to build communit}'
partnerships and to address victim issues identified as mandated priorities of Attorney General fom
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, criminal justice polic)', and
curative legislation.
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CRIMINAL BL:RHAU VICnMm'ITNLSS ASSISTANCE DIVISION
During Fiscal Year 2004, VWA staff included Kathv Morrissey, Director; and Kelly McDonough,
Victim/Witness Advocate.
SIGNIFICANT CASE SUMMARIES
Four cases of particular note illustrate work in priority areas set by Attorney General Tom Reilly,
and thev are child protection, elder protection, identity theft, and consumer protection.
CHIli) PROTF-CTION
• Commonwealth v. Robert Druken, |r. (Corruption, Fraud, and Computer Crime Division)
In 1998, the defendant, Robert Druken, Jr., sent pornographic images depicting children
(reasonably believed to be under the age of 18 years old) to an imdercover Massachusetts State
'I'rooper assigned to the Office of the Attorney Cicneral, and engaged in sexually graphic chat
room discussions with the trooper.
During an inten'iew with the Massachusetts State Police, Druken confessed to having sexual contact
over a period of several years with a young male. This Office contacted the young miile, who revealed
that Druken had sexually assaulted him and had also shown him adult and child pornography. On
Wednesday, July 23, 2003. Druken, who currently resides in Florida, pleaded guilt)' before Judge Peter
Agnes in Middlesex Superior Court to the following charges:
(1) Dissemination of Visual Material of a Child in a State of .Sexual Conduct;
(2) Possession with the Intent to Disseminate Visual Material oi a Child in a State of Sexual
Conduct;
(3) Possession of Visual Material of a Child Depicted in a State ol Sexual Conduct;
(4) Dissemination ot Obscene Matter;
(5) Dissemination of Matter Harmful to Minors; and
(6) Attempted Dissemination of Matter Harmful to Minors.
Judge Agnes sentenced the defendant to five years ol probation to be supersTsed b)- the Florida
Department of Correction. Judge Agnes imposed 23 special conditions oi probation, and ordered that
the defendant comply with all conditions as required by the Interstate Compact agreement. The judge
also prohibited Druken from having any contact with the victim. A $90 Victim Witness Assessment
Fee was also imposed.
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CRIMINAL BUREAU VICTIM/WITNESS ASSISTANCE DIVISION
The advocate was assigned to the Druken case to provide victim advocaq' to the aforementioned
victim in this case. The advocate provided case updates by both telephone and mail. The advocate
acted as a liaison between the victim and the assistant attorney general, ensuring that the victims voice
was heard thtoughout the pendency of the case by stipulating that: ( 1 ) the victims privacy be protected
through a Motion to Redact all identifying information regarding the victim from court documents;
and (2) the defendant pay the victim's hospitiil and counseling bills by way of an order of restitution. In
addition, the advocate assisted the victim in completing a Victim Impact Statement, portions of which
were read aloud at the time of sentencing.
ELDER ['ROTF.CTION
• Commonwealth v. Anthony lace (Corruption, Fraud, and Computer Crime Division)
On September 24, 2003, the defendant, Anthony Jace, pleaded guilty before Judge Goggins in
Springfield District Court to a charge of criminal harassment. He was .sentenced to seven
months committed in the House of Correction aher which time he was released on a detainer
to the authorities in New Jersey. He did not receive any credit for the time he served awaiting
disposition.
The co-defendant, Robert Jace, posed as a Maaco mechanic in a Springfield grocerv store parking
lot and offered to do auto bod)'work on the car of a 9 1 -year-old man. At the victims home, the
Jace spray-painted part of the car and, over the next two weeks, demanded multiple pa),'ments
for the "work" done to the car. Robert Jace was charged with Extortion and Larceny under
$250 from a Person 60 Years Old or Older. On September 24, 2003, this case was continued
without a finding, subject to conditions, for six months before Judge Goggins in Springfield
District Court. Conditions of the continuance were as follows: (1) the defendant was ordered
to pay restitution in the amount of $700 ($600 forthwith and $100 within one month); and
(2) he was to have no contact with the victim.
The advocate was assigned to the Jace case to provide information and ongoing support to the 91-
year-old victim — crisis counseling regarding the victim's fear of retaliation, consultation regarding the
victims thoughts on sentencing, and linkage and follow-up with probation regarding restitution.
IDENTITY THEFT
• Commonwealtii v. Timothy Nguyen (Corruption, Fraud, and Computer Crime Division)
On February 3. 2004, the defendant, Timothy Nguyen, pleaded guilty before Judge Brady in
Suffolk Superior Court to unauthorized use of his former friend's computer, criminal harassment,
and identit}' fraud. The defendant was sentenced to three years of probation with the following
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CRIMINAL BUREAU VICTIM/WITNESS ASSISTANCL DIVISION
condicions: 100 hours ot communitj-sciviLcaiul no contact, direct or indirect, with the victim.
Prior to this incident, tlie defendant was employed b\' Brown Brothers and Harriman as a
Network Security Engineer. I he defendant obtained tiie victim's investment accoum numhcrs
and social seciirit)' immber and e-mailed the iniormaiion to the \'ictims friends.
The advocate was assigned to the Nguyen case to provide victim advocac}' to the identity fraud
victim who became increasingly anxious over time about the boundary violation inherent in this crime
and its attendant consequences. Victim services included: ongoing notification of case status; screening
victim inquiries; consulting with the victim to provide linkage with the Federal i'rade (Commission and
the three credit reporting agencies; and consulting with the victim regarding his Victim Impact Statement.
CONSUMER PROTECTION
• Commonwealth v. John Cassidy (Corruption, Fraud, and Computer Crime Division) On
June 3, 2004, before Judge Minehan in Wareham District Court, the defendant, a 75-year-old
travel agent, admitted to sufficient facts to warrant a finding of guilt)' relating to 73 larceny
charges. Judge Minehan ordered the matters continued without a finding for three years with
probation. Special conditions of probation included: (1) the defendant disclose his criminal
record if he works with money; (2) the defendant no longer operate in the travel business; 3)
the defendant not act as a fiduciary; and (4) the defendant perform 300 hours of comnmnity
service. Prior to sentencing, the defendant paid full restitution of more than $160,000 to the
victims in this case — money he obtained from tfic sale of his house and the surrender of his life
insurance polic)'. Additionally, the defendant was ordered to pay a statutor}' $90 Victim Witness
Assessment Fee and a $21 Administrative Probation Fee.
Kathy iVIorrissey was assigned to the Ciissidy case to provide victim advocacy and witness management
to 73 victims who were former clients of the defendant. The defendant, allegedly, stole approximately
$160,000 in vacation money — including honeymoons and long-planned anniversary trips. The
victims were obviously irate. Multiple victims appeared at each court date. Victim advocaq' and
witness management included crisis inter\'ention, ongoing notification of case status — in person, by
telephone and first-class mail — court accompaniment, guidance with completing Victim Impact
Statements, drafting of disposition letter, and oversight of the restitution process.
The sentiments of the victims were ca[nuied in a Victim Impact Statement written b)' a victim
couple:
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CRIMINAL BUREAU VICTIM/WITNESS ASSISTANCE DIVISION
It took US a year to save up for a dream 10-day Caribbean cruise to celebrate our 35'''
wedding anniversary. Because we were unable to come up with another $2,800, this
important milestone in our lives was celebrated at home — not quite what we had
dreamed of. This unscrupulous, nasty man has ruined many planned honeymoons,
anniversary, and birthday vacations.
STATISTICAL SUMMARY
During Fiscal Year 2004, the Victim/Witness Assistance Division provided services to a high volume
of victims and witnesses. Victim advocacy and witness management services were provided by the
victim/ witness advocates on 38 cases across the Commonwealth. The case breakdown is as follows:
REFERRAL SOURCE NUMBER OF CASES
Appeals Division 7
Corruption, Fraud, and Computer Crime Division 24
Special Investigations and Narcotics Division 5
Conflict Cases 1
Other — United States Attorney's Office 1
TOTAL 38
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
The division provided daily in-house consultation to prosecutors, investigators, and state troopers
by screening and responding to duty calls and correspondence from the public when victim/witness
issues were identified.
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CRIMINAL BlRLAi; SPECIAL INVESTIGATIONS AND NAKCOTICS DIVISION
OUTREACH, EDUCATION, AND TRAINING
During Fiscal Year 2004, the ilivisions advocates niaiiii. lined ruuncroiis ouircach efforts in coniiminity
activities and both taiii;lTt and attended training classes inside and outside ol theOlficeol the Attorney
Cetierid, including:
• Attending bi-monthly meetings of the Victim and Witness Assistance Board, chaired by Attorney
General Tom Reilly;
• Attending regular meetings for statewide Victim/Witness Directors, sponsored by the
Massachusetts District Attorneys Association;
• Serving as the Attorney General Liaison at bi-monrhl)' meetings of the Boston Area Sexual
Assault Coalition at Massachusetts General Hospital and at Beth Israel Deaconess Medic;il
Center;
• Continuing to provide telephone consultation to clergy abuse survivors;
• The division director served on the Planning Committee tor "A Celebration ot 20 Years of
Victim Rights in Massachusetts," and attended the event at the State House in Boston.
• The division director served on the Planning Committee and attended the Annual Victim
Rights Conference in April 2004 , sponsored by the Massachusetts Office for Victim Assistance,
the Victim and Witness Assistance Board, Attorney General 7bm Reilly, and the Massachusetts
District Attorneys Association.
• Attending the Second Annual Victim/Witness Advocate Conlerence, Hancock, MA;
• Attending 24 educational training seminars across the Commonwealth relating to victim/witness
issues;
• Consulting with the Victim Services Coordinator and Policy Anal}st at the Massachusetts Office
for Victim Assistance (MOVA) regarding the state-of-the-state of victim services for fraud victims;
and
• Conducting training related to the implementation of the Victim Rights Law and the role of
the Victim/Witness Assistance Division to the Criminal Bureau summer interns.
SPECIAL INVESTIGATIONS AND NARCOTICS DIVISION
The Special Investigations and Narcotics (Sl&N) Division coordinates and prosecutes a variety of
complex, multi-jurisdictional criminal cases. The division also proactively investigates traditional criminal
49
CRIMINAL BUREAU SI'ECIAL INVESTIGATIONS AND NARCOTICS DIVISION
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 of the division is to ideniif\' 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 SI&N Division, through its Asset Forfeiture Dnit, initiates and pursues civil and criminal
forfeiture and nuisance actions of propert)' related to the sale, distribution, and facilitation of drug-
related offenses as well as gaming violations. Funds recovered by the Unit are distributed in accordance
with the forfeiture laws.
Among the general categories of crimes the SI&N Division investigated and/or prosecuted during
Fiscal Year 2004 were the following: armed robbery; narcotics trafficking and related offenses; armed
career criminal violations; armed assault with intent to murder; assault and battery with a dangetous
weapon; breaking and entering with intent to commit a felony; petjuiy; larceny of a motor vehicle;
larceny of construction equipment; gaming; extortion and loan sharking; and habitual criminal ofienders.
This division also investigated possible acts of violence related to the Democratic National Convention,
although no such activity or cases were realized.
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 E!nforcement
Administration, the Bureau of Alcohol, Tobacco and Firearms, the Federal Bureau of Investigations,
the Suffolk County Sheriffs Department, the Department of Corrections, District Attorneys (3ffices,
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 laundeting organizations, organized larcein' rings, and armed career
criminals.
Members of the division for all or part of Fiscal Year 2004 included Assistant Attorney Cieneral
William F. Bloomer, Division Chief until April 2004; Assistant Attorney General Eileen M. O'Brien,
Division Chief after April 2004; Jennifer Doherty; Tracie Fernandes; Robert Fisher; Joanna Kennefick;
Patrick Lee; Peter Paulousky; Mar}' P. Phillips; and Matthew Shea. Approximately 16 Massachusetts
State Troopers are assigned to the Sl&N Division within the Office of the Attorney General. During
Fiscal Year 2004, C'aptain Stephen Matthews oversaw the command of all State Police Detectives assigned
50
(RIMINAL BUREAU SPECIAL INVESTIGATIONS AND NARCOTICS DIVISION
to the Ottkc, including SI&N troopers. Lieutenant hrancis Matthews, with lieutenant Kichard I'rior,
formed the central core ol rlie remaining command structure tor SI&N troopers.
SIGNIFICANT CASE SUMMARIES
• Commonwealth v. Anthony Rizzo (Suffolk and Middlesex Superior Courts);
Commonwealth v. Anthony Cardillo (Suttolk and Midtllesex Superior C'ourrs); Commonwealth
V. Paulo Tizzano (Sulfolk Superior Court); Commonwealth v. Pasquale Regnetta (Suffolk
Superior Court); Commonwealth v. Richard Moretto (Suffolk and Middlesex Superior C^ourts);
Commonwealth v. William Meehan (Suffolk Superior Court); Commonwealth v. Andrew
Arinello (Suffolk and Middlesex Superior Courts); Commonwealth v. Dean Rosati (Suffolk
and Middlesex Superior Courts); Commonwealth v. Louis Carpinto (Suffolk Superior Court
and I'eabod)' District Court); Commonwealth v. Wilberto Pag an (Middlesex Superior ("ourt);
Commonwealth v. Norge Olivero (Middlesex Superior Court); Commonwealth v. Frank
Coscarelli (Middlesex Superior Court) On December 19, 2002, over 130 local, state and
federal police officers executed 17 search warrants at locations in the North End and throughout
Greater Boston, following the SI&N Division's investigation into the criminal activities of "La
Cosa Nostra." Police seized 13 guns, explosive devices, himdreds of Percocets, trafficking
quantities of cocaine and marijuana, and approximately $132,000 in drug money. Lhe 15-
month investigation, dubbed "Operation Neighbor-Hoods," involved the electronic surveillance
of seven telephones and the placement of a bugging device and CPS Tracking S\stein in a
target's vehicle. Eighteen individuals were arrested or charged, including the primar)' target,
Anthony Rizzo, an alleged "made" mafia soldier. As a result of the concerted efforts of the state
police and Assistant Attorney General Patrick Lee, five of the defendants have already pleaded
guilt}' to a variety of offenses, including conspiracy to traffick in a controlled substance and
possession of a firearm, in state courts.
• Commonwealth v. Paul Allen (Middlesex and Suffolk Superior Courts); Commonwealth
V. William Wadman (Suffolk Superior Court); Commonwealth v. Brendan Houlihan (Suffolk
Superior Court); Commonwealth v. Gerald Poliskey (Suffolk Superior Court); Commonwealth
v. Nelson Perez (Suffolk Superior (Jourt) In 2001, police and prosecutors were confronted
with a rash of pharmacy robberies targeting the theft of Ox)'Contin pills — a highly addictive,
opiate painkiller. Facing a public safety and public health emergency due to the escalating
number of pharmacy robberies. Attorney General Reilly formed the "Ox)'Contin Task Force"
in August of 2001 . The Task Force consisted of members of the State Police, the Boston Police,
local police departments, federal law enforcement agencies, and prosecutors assigned to the
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CRIMINAL BUREAU SPECIAL INVESTIGATIONS AND NARCOTICS DIVISION
SI&N Division and District Attorneys' Offices throughout Eastern K4assachusetts. By the end
of Fiscal Year 2003, Task Force members had arrested and charged 1 2 individuals in connection
with six armed robberies ni pharmacies occurring in Suffolk, Middlesex, and F^ssex Counties,
and an additional four people, including a Suffolk County Deputy Sheriff, for drug-related
offenses. Firearms, including a "Tec 9" large-capacity weapon and handguns with obliterated
serial numbers, knives, a bullet-proof vest, masks, gloves, thousands of dollars, and hundreds of
OxyContin pills and other narcotics were seized by Fask Force members. During Fiscal Year
2003, as a result ol the efforts of A.ssistanr Attorneys General Eileen O'Brien and William
Bloomer, 1 1 of the 16 individuals pleaded guilty in a niunber of courts to charges ranging from
armed robber)' while masked to trafficking in oxycodone to armed career criminal violations.
Three of the leaders of the organized armed robbery rings, Sean Noonan, Paul Allen, and
Philip O'Neil, received sentences of more than 10 years in state prison for their offenses. The
Task Force investigation relating to Paul Allen took another turn in January 2003 when State
Police assigned to the Attorney General's Office arrested Nelson Perez, a Nashua Street Jail
guard, as he was bringing cocaine, oxycodone, and marijuana into the jail. Follow-up
investigation resulted in charges against Paul Allen, William Wadman, Gerald Poliskey, and
ultimately Brendan Fioulihan. All of these defendants had long prior criminal records and
were indicted on narcotics trafficking charges. By the end of Fiscal Year 2004, Allen had pleaded
guilty to another 15-year sentence. The other defendants, including Perez, are scheduled for
trial in Fiscal Year 2003.
• Commonwealth v. Timothy White ; Commonwealth v. Robert Crisafuiii (Norfolk Superior
Court) On January 27, 2003, Sergeant Timothy White of the Massachusetts State Police was
arrested at his home at 65 Southworth Court, Stoughton, MA, after he allegedly assaulted his
wife, Maura White, with his service weapon — a .40-caliber Sig Saur handgun. At the time of
his arrest, Sgt. White was assigned to the Narcotics Inspection Unit (NIU) of the State I'olice.
Subsequent investigation revealed approximately 13 kilograms of cocaine and other narcotics
as missing from the NIU storage facility in Framingham. After interviews of witnesses and
search warrant executions, Sergeant White w;is indicted for, among other things, the theft and
distribution of nearly all of the missing cocaine as well as var}ang amounts of marijuana and
ecsta.sy taken from the bunker. An acquaintance of the Whites', Robert Crisafuiii, allegedly
sold multiple-ounce cjuantities of cocaine for White from October through December of 2002.
On February 28, 2003, troopers searched a storage bin in Hvde Park rented by Crisafuiii and
discovered approximately 700 grams of cocaine. These Ciises came to the Attorney General's
Office, specifically to the SI&N Division, upon requests from the Massachusetts State Police
and the Norfolk ("ounty District Attorney's Office.
52
CRIMINAL BUREAU SPECIAL INVESTIGATIONS AND NARCOTICS DIVISION
• Commonwealth v. lason King (Middlesex Superior C.ourt); Commonwealth v. Antonio
Centeno (Middlesex Superior C'ourt) During a six-month investigation, proseciiiorsand troopers
from this division iussisted the Drug F.nlorcemetu Administration and Lowell Police Department
in conducting a wiretap investigation ol an organization that was responsible for importing .
sizable quantities ot 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. At the conclusion ot the investigation, 18 search warrants
were executed at locations in Middlesex and Hssex Counties. Police and federal agents seized
approximateh' one kilogram of cocaine, heroin, ecstasy pills, steroids, and tens ol thousands of
dollars. The primar\' targets of the investigation, Luis Cotto and Jason King, and five others
were arrested. Four additional individuals were indicted following a grand jury investigation.
To date, as a result of the efforts of Assistant Attorney General Aloke Chakravarty, all but one of
the defendants have pleaded guilty to a variet)' of offenses ranging from trafficking in cocaine
to conspirac)' to distribution of controlled substances. Lhis investigation exemplified the
successful cooperative efforts of three separate law enforcement entities working together with
one prosecution entit)' to attain one goal. King is a cooperating, testif^'ing witness. As a result
of that cooperation, Centeno decided to cooperate in the federal investigation of the murder of
Aislyn Silva. He will be testifying in the federal trial in exchange for a concurrent five-year
sentence on his remaining charges.
• Commonwealth v. lames Hayes (Middlesex Superior Couri); Comtnonweaith v. Anthony
Cardillo (Middlesex Superior Court); Commonwealth v. Scott Sanders (Middlesex Superior
Court); Commonwealth v. Patrick McGonag le (Middlesex Superior Court); Commonwealth
v. Christian Petrillo (Middlesex Superior Court): Commonwealth v. C^Tithia Hug hes (Middlesex
Superior Court); Commonwealth v. William Mosher (Middlesex Superior Court);
Commonwealth v. Alfonso Velasc]uez-Londono (Middlesex Superior Court); Commonwealth
V. Christian Kelley (Suffolk Superior (^)uit); Commonwealth v. David Kelley ; (Middlesex
Superior Court); Commonwealth v. loseph Rosato (Middlesex Superior C^ourt) During 2000,
troopers assigned to the SI&N Division of the Office of the Attorney General conducted an
investigation into three separate but overlapping Percocet, cocaine, and ecstasy distribution
rings operating in the Greater Boston area. From July 10, 2000, through August 15, 2000,
through the use of wiretap warrants, officers intercepted communications over eight different
telephones and two paging devices relating to the importation and resale of large quantities of
Percocet pills, kilogram quantities of cocaine as well as ecstasy pills. On March 1 2, 2004, Scott
Sanders pleaded guilty and was sentenced to 10- and one-half years for trafficking over 200
grams of cocaine, conspirac\- to traffick cocaine, and conspiracy to traffick oxycodone. On
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CRIMINAL BUREAU SI'LCIAL INVESTIGATIONS AND NARCOTICS DIVISION
March 29, 2004, James Hayes pleaded guilty to trafficking over 200 grams of cocaine. He was
sentenced to 10 years. Anthony Cardillo was sentenced to 10 years from and after Suffolk
Superior docket #2003-10201 for trafficking both cocaine and oxycodone. Patrick McConagle
was sentenced on Jime 1, 2004, to two- and one-half years for conspiracy to trafFick cocaine.
Cynthia Hughes was sentenced to two years on June 4, 2004, for Possession of Cocaine with
Intent to Distribute. On June 16, 2004, Christian Kclley was sentenced to 10 and one-half
years for trafficking oxA'codone. Of the approximately 20 defendants, there are three remaining
from this wiretap. One of these defendants, David Kelley, defaulted at his trial date on June 21 ,
2004, and his $75,000 bail was forfeited. A warrant was issued and OlA has also issued a
provisional arrest warrant for Costa Rica where the defendant is believed to have fled.
• Commonwealth v. Mario Reyes (Middlesex and Suffolk Superior Courts) : Commonwealth
V. Monica Reyes (Middlesex and Suffolk Superior Courts); Commonwealth v. lames Abreus
(Suffolk Superior Court); Commonwealth v. Faber Aldana (Middlesex Superior Court);
Commonwealth v. Gilberto Cruz (Middlesex Superior Court); Commonwealth v. lose Rivera
(Suffolk Superior Court); Commonwealth v. William Torres (Middlesex and Suffolk Superior
Courts); Commonwealth v. Carlos Parra (Suffolk Superior Court) Operation Colombian
Gold Wiretap Investigation with DEA and MSP. DEATask Force investigation of international
drug distribution organization revealed that the principals of the organization regularly obtained
and distributed kilograms of cocaine and heroin as well as thousands of MDMA (ecstasy) pills,
and also imported the drugs into the United States. From September 200 1 to November 200 1 ,
agents and officers monitored five telephones pursuant to court-ordered electronic surveillance
warrants. The initial target, Monica Reyes, sold over 100 grams of heroin to an undercover
trooper on several occasions, and approximately 1 kilogram of heroin was interdicted from
Costa Rica based on the information from the wiretap. Additionally, the New York office of
DEA initiated a wiretap investigation based on the intelligence from this case, which led to the
seizure of approximately one- and one-half additional kilograms of heroin and a handful of
arrests. A shipment of 18 kilograms of cocaine, part of which was destined for Monica Reyes,
was also seized. On November 2, 2001, after another principal target, Mario Reyes Jr. was
intercepted bringing approximately 700 grams of cocaine to the Boston area from New York,
nine search warrants were executed and approximately 500 grams of additional cocaine were
seized. Currently, eight defendants stand charged in Middlesex and Suffolk.
• Commonwealth v. James A. Nolan (Suffolk Superior Court) In February 2004, the
defendant, James Nolan, was arrested after he shot a Boston Police Special Operations officer
through the front door of his apartment with a .4'S-caliber handgun while that officer was
attempting to execute a search warrant along with other Mobile Operations (MOP) team
54
CRIMINAL DLiRLAi; SPECIAL INVESTIGATIONS AND NARCOTICS DIVISION
members. Ilic bullet sriuek the otfiLer in his side aiul lodyed itself into liis taetical vest. A
Superior (^ourt judj;e had previously issued the warrant — which authorized a search of the
residence for marijuana, firearms, and ammunition — to troopers assigned to the Attorney
General's Office. A search of the defendant's apartment uncovered one loaded H & K .45-
caliber handgun, a spent .45-caliber shell casing, several rounds of loose amminiition, a bullet-
proot vest, a couple of oimces of marijuana packaged for distribution, a digital scale, approximately
$ 1 ,565 in U.S. currency, and personal papers in the defendant's name as well as his belongings.
On April I, 2004, a Suffolk (JoiuU)' (Jrand jun,' returned indictments charging Nolan with
Armed Assault with Intent to Murder in violation of c. 265, § 18(b), Assault and Ratters- with
a Dangerous Weapon in violation of c. 265, § 15A(b), Assault and Battery of a Police Officer in
violation of c. 265, § 13D, Possession of a Firearm in violation of c. 269, § 10(h), Possession of
Ammunition in violation of c. 269, § 10(h), Possession of Marijuana with Intent to Distribute
in \iolation of c. 94C, § 32C(a), and Violation of a Drug (Offense within a School Zone in
violation of c. 94C, § 32J.
• Commonwealth v. Clyde Bog le (Hampden Superior Court); Commonwealth v. Jiiana
Edmonds (Hampden Superior Court); Commonwealth v. Myra Marabie (Hampden Sufierior
C^ourt); Commonwealth v. James Voorhies (Hampden Superior Court); Commonwealth v.
Brenda Featherstone-Holloman (Hampden Superior Court); Commonwealth v. Cynthia Green
(Springfield District Court); Commonwealth v. Myoshi Dickson (Springfield District Court);
Commonwealth v. Yuri Rankin (Hampden Superior (Jourt) During this fiscal year, Sl&N
initiated an investigation targeting a violent crack-cocaine trafficking organization headed by
an individual named Clyde Bogle. Bogle had successfully avoided prosecution for years in the
Springfield area when witnesses repeatedly recanted their prior statements at trial. Bogle and
his crack-cocaine business were shut down after an intense two-week wiretap investigation led
to the issuance of search warrants, resulting in the seizure of trafficking quantities of crack and
thousands of dollars in proceeds. As a result of this investigation, 1 1 individuals have been
charged witli narcotics offenses.
• Commonwealth v. Jason Bodiford (Springfield District Court); Commonwealth v. Pernell
Bodiford (Springfield District Court); Commonwealth v. Joao Alves (Springfield District Court);
Commonwealth v. Otis Gaynor (Springfield District Court); Commonwealth v. Brian Searles
(Springfield District Court) On June 8, 2004, an undercover trooper assigned to the Attorney
General's Western Massachusetts Office met with a target, Joao Alves, a/k/a "Far Johnny", to
purchase a large quantit}' of Ox)'Contin pills in the Springfield area. Ihe trooper had already
made undercover purch;ises from the target. On this night, however, Alves set up the undercover
55
CRIMINAL BUREAU SI'ECIAL INVESTIGATIONS AND NARCOTICS DIVISION
trooper, and after directing him toward an isolated area, he left while three other men approached
and robbed the trooper ol the money at gunpoint. Two of the three men brandished gims,
while the third stood ready to help. All three then fled through a path in the nearby woods.
Another state trooper, listening to the report of the robbery from her undercover surveillance
crui.ser, found the getaway vehicle and, after a pursuit to another section of the city, successftilly
held them until backup arrived. Ultimately, the money was recovered, along with two handguns.
Alves and three others are charged with armed robbery.
STATISTICAL SUMMARY
At any given time, the division generally has in excess of 100 cases pending in various courts
throughout the Commonwealth, over 15 ongoing investigations, and a handful of post-trial motions
that require written responses and court appearances. The statistical breakdown of the number of
arrests, criminal ca.ses initiated, and cases disposed during Fiscal Year 2004 is set forth below.
GENERAL CASE INFORMATION
Felony Arrests 35
Crimiuiil Cases Initiated 29
Cases Disposed 93
From July 1, 2003, through June 30, 2004, State Police assigned to the SI&N Division made
approximately 35 felony arrests. Prosecutors in the division in turn successfully disposed of 93 pending
cases in the Massachusetts Superior and District Courts, while initiating approximately 29 new cases in
those same courts. Four of those convictions were attained by means of guilty verdicts following jury
trials in Superior Courts in Worcester, Essex, and Norh)lk Counties. One of those trials also entailed
the presentation of intercepted communications Irom a 2000 wiretap. Of the number of drug cases
investigated by the division in Fiscal Year 2004, approximately five percent of these involved two
controlled substances rapidly growing in popularity among )'oimg adults: ox)'Codone, a highl)- addictive
painkiller (the active ingredient in pharmaceutical OxyContin) , and Methylenedioxy-N-
Methylaniphetamine (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. Virtually all of these cases involved trafficking quantities of these drugs.
56
CRIMINAL BUREAU SPECIAL INVESTIGATIONS AND NARCOTICS DIVISION
FIREARMS
Guns Seized (ir Puixh.).scd 1 8
Individuals Cdiaii^cd with Firearms Offenses 5
f'roni Jul\- 1, 2{)()3, through June 30, 2004, state poUce assii^ned to the SI&N Division seized at
least 18 guns ranging horn an AR 7 to several weapons with obliterated serial numbers and a .y-mm
semi-automatic. Based upon these seizures, prosecutors in the SI&N Division charged five individuals
with a variety oi firearms offenses, including armed career criminal violations and armed robbery. One
investigation resulted in the seiziue ol a large stash of guns in Boston. NX'hilc the Al F traces are still
pending, it was determined that at least one of those firearms was stolen from out of state.
ASSET FORFEITURE
Civil Forfeiture Cases Initiated 5
Civil Forfeiture Cases Disposed 25
During Fiscal Year 2004, the Asset Forfeiture Unit initiated five new civil forfeiture actions (not
including forfeitures pursued by means of criminal motions), and concluded 25 actions involving
money, cars, and jewelry. By way of example, the unit commenced civil actions against cars that were
used to facilitate the distribution of narcotics or were purchased with the proceeds of the distribution of
narcotics, including one 2000 Mercedes, one Ducati Motorcycle, one 2000 jaguar XJ, and one 1993
Audi. In June 2003, the forfeiture assistant attorney general organized and facilitated an automobile
auction in Middleboro in conjunction with the Plymouth District Attorney's Office. The Office of the
Attorney General auctioned seven luxiny vehicles and one motorc)'cle, all of which had been seized and
forfeited from drug dealers and grossed $ 1 1 1 ,675.
WIRETAPS
Wiretap Warrants Applied for 2
Wiretap Wiirrants Received 2
Devices Tapped 2
57
CRIMINAL BUREALI SPECIAL INVESTIGATIONS AND NARCOTICS DIVISION
One-Party Consent Warrants Applied for 15 +
One-Party Consent Warrants Received 15 +
Electronic surveillance was a significant tool that the division utilized to penetrate and dismantle
complex illegal enterprises during Fiscal Year 2004. Over the past year, troopers assigned to this division
have on numerous occasions equipped themselves and informants with electronic body wires, pursuant
to so-called fi/flo^ warrants, to intercept and record criminal conversations with unsuspecting targets.
Additionally, from July 2003 through June 2004, the SI&N Division executed two court-authorized
wiretap warrants (excluding one-party consent/ Bloo^i warrants). The.se warrants authorized law
enforcement officers to intercept, monitor, and record criminal communications occurring over one
cellular and one residential telephone. These electronic surveillance measures, coupled with traditional
investigative techniques, have proven invaluable in securing the convictions of individuals with ties to
a variety of sophisticated criminal enterprises. Because of their considerable expertise in this area,
attorneys in the division are frequently asked to assist police officers and fellow prosecutors in the law
of search and seizure and electronic surveillance.
POST-TRIAL MOTIONS
Post-Trial Motions Filed by Defendants 4
Post- Irial Motions Disposed 4
In addition to prosecuting their pending criminal cases. Assistant Attorneys General in the SI&N
Division responded to four post-trial motions. These motions, filed by convicted felons, sought new
trials, jail credit, or sentence reductions. Of the number of post-trial motions filed, three were denied,
and one motion to strike speedy trial was allowed because it was the wrong defendant.
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
Assistant attorne\'s general assigned to SI&N Division continued to provide service and assistance
both in and out of the Office that exceed the scope of traditional prosecutorial responsibilities. Some
of these extracurricular contributions include service on the Youth Violence Task Force; "The Law and
You" presentation to eighth-grade students at the Courtis Middle School; the Citizens School Community
Outreach Program, which allows students an opportunity to participate in a mock trial as prosecutors
and criminal defense attorneys; Northeastern Universitys Moot Court Competition; the Springfield
58
CRIMINAL BUREAU ENVIRONMENTAL CRIMES STRIKE FO[<CE
Task Force aiidressint; innci-cir)- dru^ and gun prolilcms; the Sdiith Asian Bar A.ssociacion; the ( lovcinors
Racial I'rotlhng lask Force; MC^I.K; tlie Attorne\- (ieneral's loan Forgiveness and Assistance IVogram
for Public FJnployecs; and the Massachusetts 1 aw Review. In addition, Assistant Attorney General
Eileen O'Brien drafted a new wiretap legislative proposal and Assistant Attorne)' Oiieral William
Bloomer submitted testimoin' in support of that bill to a legislative committee.
During Fiscal Year 2004, attorney's in the Sl&N Division were also rccjuired to act as point persons
for the office on a variety' of topics that rec]uiie specialized knowledge in certain areas of law. For
instance, prosecutors in the di\ision jirovided advice anel assistance to attoriie\s and police officers
acioss the state in rendition matters. In aildition, an a.ssistant attortiey general fields all public record
inquiries directed to the division. Prosecutors also served as the divisions intern coordinators, who in
that capacity supervise and monitor the progress of law student interns assigned to the division.
OUTREACH, EDUCATION, AND TRAINING
Members of the division attended trainitigs both inside and outside the Office during Fiscal Year
2004, in an effort to keep abreast of important current issues and trends in the law. These trainings
encompassed a variety of topics, including ethics, anti-discrimination, coinputer forensics, international
investigative issues, and trial advocac)' techniques. Some of the trainings attended by Assistant Attorneys
Gener;il in the division included MCLE's program on Attacking and Defending Search Warrants;
NAACis Trial Advocacy Trainitig; the NDAA's Computer Forensics and Cyberstalking Investigations
Training; the NDAAs Cross Examination Course; the MDAAs DNA Training; and the NDAAs
Prosecuting Drug Ciises Training.
Assistant Attorney's General in the division also served as faculty for (1) the National Association of
Attorneys General, Trial Practice Academy, (2) the National Advocacy Center for the National District
Attorneys Association; and (3) Massachusetts Continuing Legal Education.
ENVIRONMENTAL CRIMES STRIKE FORCE
Fhe Massachusetts Environment.il Crimes Strike Force (ECSF) is a unique interagency enforcement
tool used in the investigation and prosecution of the Commonwealth's environmental enforcement
efforts. Through the cooperation of the Attorney General, the Secretar)' of Environmental Affairs, the
Department of Environmental Protection (DEP), and the Massachusetts Environmental Police, the
ECSF brings specialized prosecutoriiil, technical, and police resources under a single umbrella. The
59
CRIMINAL BUREAU ENVIRONMENTAL CRIMES STRIKE FORCE
ECSF thus provides the legal, scientific, and investigative expertise necessary to identify environmental
violations, evaluate their impact on public safet}' and the environment, and develop the evidence necessar)'
to prosecute environmental crimes. Among the general categories of environmental crimes the ECSF
Division investigated and/or prosecuted during Fiscal Year 2004 were the following: illegal treatment
and disposal of hazardous waste; discharging pollutants to the waters of the Commonwe;ilth; illegal
dumping; open burning of hazardous wastes; illegal removal of asbestos; and filling or altering of wetlands.
In addition, the ECSF Division investigated or prosecuted traditional white-collar crimes, for example:
larceny by false pretense; procurement fraud; and identity haud. In addition, division attorneys often
work with local police and fire departments, federal law enforcement officials. Attorney Generals' Offices
from neighboring states. District Attorneys' Offices from across the state, and investigators assigned to
other state agencies.
Members of the division for all or part of Fiscal Year 2004 included Paul J. Molloy, Division Chief;
Jennifer Doherty, Stacey Glynn, and Kevin Plante. The three Massachusetts Environment,il Police
Officers assigned to the tlCSF were l.t. Gail Larson and Elnvironmental Police Officers Michael Moore
and Pat Halev.
SIGNIFICANT CASE SUMMARIES
Highlights of cases handled by the Environmental Crimes Strike Force in Fiscal Year 2004 include:
• Commonwealth v. Karl D. Clemmey/Quirk Trust LLC (Bristol Superior Court) The
defendants were indicted in December 2003 by the Bristol County Grand Jury on 10 counts
each of violating the Wetlands Protection Act for clear cutting and filling over six acres of
wetlands, making it the largest Wetlands Protection violation in state history. The defendants
wete arraigned on Januar}' 22, 2004. On May 17, 2004, Judge Connon granted the Defendants
Motion to Dismiss. The Commonwealth appealed this decision, and the case is scheduled for
oral argument before the Supreme Judicial C^ourt in May 2005.
• Commonwealth v. Brian Dodg e (Springfield Housing Court) This case was brought upon
a request b)' the Department of Public He;ilth to take over the prosecution of a lead paint case
already filed in Housing Court. On April 26, 2004, the defendant pleaded no contest to ( 1)
unauthorized lead paint abatement; (2) Contempt of Court Order; and (3) illegal disposal of
hazardous waste (lead). The defendant was fined $3,000, and placed on probation fot one year.
A condition of probation was that all lead paint be legalh' abated by a licensed contractor.
60
( RIMINALBLiREAU ENVIROMMENTAL CRIMES STRIKE PORCE
• Commonwealth v. BATG tinvironmental. Inc./Richard Denham (Suffolk Supeiior C^oiiit)
I he (.k-fcnd.iius, a Big Dig ('omi.tcioi ami it.s vice presicieiu, l<ii.hard Deiiiiam, were iinlietcd
in April 2003 by the Suffolk County Special Grand Jur\' on four counts of Identity Fraud and
four counts of Procurement Fraud. On April 1 , 2004, BATC Environmental pleaded gtiilty to
four counts of Identity Fraud and received the niiiximuni fme of $20,000. The corporation was
placed on pre-trial probation on the procurement fraud charges. One condition of probation
stated that BAI'C must enter into an Administrative C]onsent Order with DEP to assure future
compliance, and pay $40,000 to an environmental fund. A trial of the charges against Richard
Denham is scheduled in Fiscal Year 2005.
STATISTICAL SUMMARY
Investigations Opened 26
Investigations Closed 24
Defendants Indicted in Superior Court 2
Defendants Disposed in District Court 1
Defendants Disposed in Superior Court I
During Fiscal Year 2004, the Environmental Crimes Strike Force opened 26 investigations and
closed 24 (some of which were opened in Fiscal Year 2003). There were one corporation and one
individual indicted in Superior Court. Two cases resulted in guilty pleas, one in Superior Court and
one in the Housing Court, in addition, the F^nvironmental Police executed rvvo search warrants.
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
In addition to the cases that we investigated and prosecuted, division staff undertook significant
initiatives. ECSF attorneys worked clo.sely with the Executive Bureau to draft the Environmental
Endangerment Act ,and testified before the legislature in support thereof. 1 he Act became law in July
2003.
61
CRIiMINAL BUREAU ENVIRONMENTAL CRIMES STRIKE FORCE
In response to rhe Bouchard 120 oil spill on April 27, 2003. in Buzzards Bay, the Fiscal Year 2004
budget formed a special commission to study the ecological and environmental impacts of said spill.
On February 9, 2004, Attorney General I'om Reilly appointed Assistant Attorney General Paul J.
Molloy his designee to the commission. The commission conducted public hearings in New Bedford
on March 2, in Bourne on March 4, and in Gloucester on March 1 5, 2004. Assistant Attorney General
Molloy also met with representatives of the United States Coast Guard, the Department of Environmental
Protection, and the Executive Office of Environmental Affairs. The goal of the commission wa.s to
draft com-prehensive legislation to prevent future oil spills. "An Act Relative to Oil Spill and Prevention
and Response in Buzzards Bay and Other Harbors and Bays of the Commonivealth'\,-As, signed into law by
the Governor on August 4, 2004. The Act amends the Environment;!) Endangerment Act, which was
submitted by the Attorney General last year and passed by the legislature. The amendment provides
criminal penalties for negligent violations of environmental laws that result in serious personal injury
or substantial damage to the environment. It further provides that the fine in these circumstances can
be up to twice the pecuniary gain to the defendant or twice the amount of the loss or damage.
OUTREACH, EDUCATION, AND TRAINING
During Fiscal Year 2004, ECSF staff were involved in various activities as well as attended and
taught training classes inside and outside the Office of the Attorney General, including:
• On October 21, 2003, the division chief was the featured speaker at the Boston Bar Association's
(BBA) Environmental Luncheon on the criminal enforcement of environmental laws.
• On June 7, 2004, the division chief gave a presentation to the Northeast Environmental
Enforcement Project in Princeton, New Jerse)', on the Massachusetts Environmental
Endangerment Bill.
• On May 6, 2004, the division chief was a featured speaker at the BBA Luncheon regarding the
Buzzards Ba)' Oil Spill.
• In April 2004, the division chiet was a member of the tacult}' at the NAAG Trial Advocac)'
Telemarketing Fraud Training.
• Throughout Fiscal Year 2004 Strike Force prosecutors and police officers conducted training
for DEP regional offices on identil\'ing potential environmental crimes.
62
CRIMINAL BL^REAU INSURANCE AND UNEMPLOYMENT FRAUD DIVISION
INSURANCE AND UNEMPLOYMENT FRAUD DIVISION
Tlic mission of the Insurance and Uneinploynicni Hraiid Division (lUHD) lias been to investigate
and prosecute fraud against all types ot insurers in Massachusetts and against the Commonwealths
unemployment sccurit)' system. lUFD prosecuted these crimes to protect Massachusetts businesses,
consumers, and taxpayers from the higher premiums and taxes that arc the ultimate result of the fraud.
lUFD's cases varied vvideh', including fraud in auto repair businesses, staged motor vehicle accidents,
multi-million-dollar workers' compensation premium fraud cases, conspiracies by medical and legal
professionals, inflated claims against homeowners policies, cases involving claiinants working while
collecting workers' compensation benefits, and fraud by businesses on the Commonwealth's
unemploN-ment security fund. lUFD gave special attention to policing fraud b\' insurance industn,'
insiders, including insurance agents, claims adjusters, and damage appraisers, whose frauds could have
h.id an especi.illy corrosive effect on public confidence in the insurance and unemployment compensation
s)'stems.
lUFD received referriils from a number of sources. One source was the Massachusetts Insurance
Fraud Bureau, a non-governmental entity created b)' the Massachusetts Legislature and funded pursuant
to statute indirectly by the Massachusetts insurance industry. In addition, lUFD received referrals
from the Commonwealth's Human Resources Division, the Covernor'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. lUFD also received
complaints and referrals from concerned citizens, private attorne)'s, and court personnel. The wide-
range of referrals helped demonstrate lUFD's efforts in fighting insurance fraud throughout the
Commonwealth.
lUFD also is a part of the Cooperative Disability Investigations (Cfi)!) Unit. CDl is funded by the
Social Security Administration (SSA), and comprises the SSA's Office of Investigations/Office of the
Inspector Ceneral, the Massachusetts Disability Determination Services, and lUFD. lUFD provides
CDI with two investigators who conduct surveillance and provide the evidence used to prosecute
Social Security disabilitj'-related fraud. Because a portion of Social Security disability benefits is paid
via state funds, this crime robs the Commonwealths taxpayers twice: once as federal taxpayers and
again as state taxpaj'ers. In Fiscal Year 2004, the CDI Unit completed investigations in a total of 104
cases. SSA savings for this time period was $3,478,883 and non-SSA savings for this time period was
$2,182,689. Thus, lUFD contributed to helping recover a total of $5,690,212 in taxpayers' monies.
63
CRIMINAL BUREAU INSL^RANCE AND UNEMPLOYMENT FRAUD DIVISION
During Fiscal Year 2004, lUFD staff included Eliot Cjreen, Division Chief; Glenn Cunha and Tim
Malec, Deput}' Division Chieh; Jennifer Adams; David Andrews; Kenneth Belson; Robert Benson;
Julie Brady; Tracy Turner-Brown; Kajal Chattopadhyay; John Compton; Colleen Connor; John
Crimmiiis; John Curseaden; Brian Delaney; Daniel Koriietsky; Gloria Luk; Lea May; Ian McKeimy;
Michael McNally; Shauna Neuhauser; Ray Rowland; Vicky Scolnick; John Talbot; and Cindv WaJsh.
SIGNIFICANT CASE SUMMARIES
FRAUD BY PROFESSIONALS
• Commonwealth v. Robert Therrien (Barnstable Superior Court) A Cape Cod-based
architect committed arson to his office. A two-week jury trial resulted in a guilty verdict.
Sentencing is scheduled for a date in Fiscal Year 2005.
• Commonwealth v. Harry Markarian (Worcester Superior Court) This case was one of the
final cases associated with the series of Ellis & Ellis cases, involving a Worcester law firm involved
in perpetrating provider fraud. Markarian pleaded guilt\' on tax fraud charges and was sentenced
to two years probation.
FRAUD BY INSIDERS
• Commonwealth v. Marco Anthony Watkins (Suffolk Superior Court) Watkins, a licensed
insurance agent, sold policies and then fraudulenth' applied for additional policies under the
insureds' names, pocketing premiums and commissions. Over 40 victims were defrauded,
involving 1 1 insurance companies, with the fraud totaling $1 10,000. Watkins pleaded guilty
and was sentenced to two years in the House of Correction, 90 days to serve, with the balance '
suspended for three years of probation, and full restitution order.
• Commonwealth v. Kevin Hunt (Worcester Superior Court) Hunt, an owner of a small
insurance company, was involved in a fraudulent loan scheme as well as failing to remit client
payments. In the first scheine. Hunt prepared finance agreements for five bogus companies for
workers' compensation insurance. The loans totaled over $177,000. In a separate incident,
several auto insurance policies lapsed. The insurance provider sent cancellation notices to the
policyholders; the policyholders informed the insurer that they had sent the premiums to Himt.
All told, Hunt failed to remit over $22,000 in premiimi payments. Hunt pleaded guilt)' and
was sentenced to two years in the House of Correction, suspended for 20 years, with 1 8 months
of home confinement wearing an electronic bracelet. Hunt was also ordered to pa\' full
restitution.
64
CRIMINAL BL'REALl INSURANC1£ AND UNEMI'LOYMLNT FFUUC) DIVISION
• Commonwealth v. Howard Levitz (Norfolk Siipciior C^ourt) Lcvitz, an insurance broker
since 1983, failed to remit premiums on at least 48 occasions in 1996, totaling more than
$100,000. Pursuant to an agreed plea reconuneiKl.irion, Levit/ pleaded t;uilt)' and was sentenced
to one year in the House of Correction, suspended lor tlitee years ol probation, with 120 days
of home confinement. Levitz paid $96,777.91 in restitution on the date of the plea.
• Commonwealth v. William McGowan (Suffolk Superior Court) As an insurance agent,
McCowan conspired with his client to avoid workers' compensation insurance premiums. He
was sentenced to two years in the Hotise of Correction, 60 days to serve, with the balance
suspended lor two years, and ordered to pay $65,000 in restitution and a $20,000 fine. Ihe
restitution and fine were paid in full on the date of plea.
• Commonwealth v. Darryl Hodges and Kevin Scott (Dorchester District Court) An
insurance compan\- claims adjustor and his accomplice embezzled funds from an insurance
company. Hodges, the claims adjustor, pleaded guilt)' and was .sentenced to three years probation,
and ordered to pay $10,000 restitution. Scott admitted to sufficient facts and was ordered to
be on probation for three years and to pay $10,000 restitution.
MOTOR VEHICl h INSUI-IANCF HUUD
• Commonwealth v. Damarys Vasquez (Salem Superior Court) A Lawrence/Haverhill auto
body shop owner, two vehicle owners, and multiple additional participants engaged in a paper-
staged accident, resulting in phony claims for personal injury and property damage. Vasquez
pleaded guilty to Motor Vehicle Insurance Fraud and Attempted Larceny Over $250. She was
sentenced to three years probation on both counts, per the Commonwealth's recommendation.
Eight co-defendants were arraigned on related charges in Fiscal Year 2004; however, those cases
were still being litigated at the close of the fiscal year.
• Commonwealth v. Richard Sullivan (Norfolk Superior Court) Richard Sullivan, 49, of
Quincy, former manager of All Points Class in Quincy, pleaded guilty to si.x counts of motor
vehicle insurance fraud, one count of larcen\' and three counts of attempted larceny. Norfolk
Superior Court Judge Malcolm C]rahain Sullivan sentenced Sulli\ati to serve two- and one-
half-years in the House of Correction, with six months committed and the remainder of the
sentence suspended for two years. Sullivan was also ordered to complete 100 hours of community
.service. According to investigators, customers would bring in automobiles for windshield tinting.
Sullivan counseled them on how to file a fraudulent broken glass claim with the custoiner's
insurance company. Ihe proceeds from that frauduleiul)' filed claim would be used to pay for
the tinting.
65
CRIMINAL BUREAU INSURANCE AND UNEMPLOYMENT FRAUD DIVISION
WORKERS' COMPENSATION FRAUD
• Commonwealth v. leFfrey Hurley (Essex Superior Court) Hurley and his wife Tracey were
involved in multiple schemes in which one ol them alleged they were injured in a motor vehicle
accident and submitted false wage information to increase their personal injur)' or bodily injury
payments from insurance companies, while continuing to earn income through self-employment.
Jeffrey Hurley pursued his claims in an aggressive, intimidating, and often threatening manner.
Other charges involved obtaining credit by submitting fraudulent information about income
and attempts to involve an adverse driver in an insurance fraud scheme. Jeffrey Hurley pleaded
guilty and was sentenced to 10 years of probation. He was also ordered to pay $60,000 in
restitution and fined $40,000. Tracey Hurley's case remained pending at the close of Fiscal Year
2004.
• Commonwealth v. Rlcci DeGaetano (Suffolk Superior Court) This case involved workers'
compensation fraud by a former corrections ofTicer, valued at approximately $82,000. DeGaetano
was sentenced to six months committed at the BerLshire House of Correction, five years probation
and restitution and fines in the amount of $ 1 26.039.98. DeGaetano also was ordered to forfeit
his entitlement to state retirement benefits, per the Commonwealth's recommendation.
• Commonwealth v. Patrick O'Shaughnessy (Sufh)lk Superior Court) O Shaughnessy was
self-employed as a contractor. With the help of his insurance agent, he avoided paying workers'
compensation premiums. O'Shaughnessy pleaded guilty and was sentenced to one year in the
House of Correction, with 30 days to be served in home detention with a tracking bracelet; the
remainder was suspended for two years. O'Shaughnessy also was ordered to pay $65,757.50
restitution and $25,000 in fines.
• Commonwealth v. Jesse Maxwell (Boston Municipal Court) This was a workers'
compensation fraud case involving a $9,000 baud. A guilty plea resulted in a sentence ol one
year in the House of Correction, suspended for three years of probation, and restitution.
• Commonwealth v. Donald Higgins (Boston Municipal Court) A carpenter working on
the Big Dig collected total disability due to a job-related injury while he was working at another
job. Higgins admitted to sufficient tacts to warrant a finding of guilt}' and was ordered to pay
full restitution.
• Commonwealth v. Steven Smith (New Bedtord District ("ourr) Smith worked hilltime
while collecting $3,000 in disability. A guilty plea resulted in one A'ear in the House of Correction
concurrent with a sentence curretuU' being served on unrelated charges, followed by one year
suspended, and full restitution.
66
( RIMINALBUREAl' INSURANCE AND UNEMI'LOYMENT FRAUD DIVISION
• Commonwealth v. Mark Gomes (Bosroii Munici|xil Clouit) Cionics allcgcdlv iniiiad liis
neck and hack while working for a cdii.snuciion coniiiaii}-. He collecrecl workers' conipeiisaiion
benefits and continued to do so even after returning to work. Gomes fraudulently received
$5,300 in benefits. After a bencli trial, lie was found guilty and sentenced to two years in the
House of Correction, six months to serve, with tlie balance suspended for three years, and a
$1,000 fme.
I'ROPERTY FRAUD
• Commonwealth v. Thomas O'Brien (Essex Superior Court) This construction contractor
submitted phony claims for the theft of $125,000 of equipment. O'Brien pleaded guiltv and
was sentenced to five years probation, full restitution and fined $21,000.
• Commonwealth v. Gary Baker (Stoughton District Court) Following a move, Baker
submitted two fraudulent claims to his insurer alleging the loss or theft of business papers and
personal pro[X'rt\'. His claims totaled over $64,000. Baker pleaded guiltv and was sentenced to
two \'ears probation and a $1 ,800 fine.
• Commonwealth v. Claudio Velez (Quinc}' District Court) Velez pawned two watches,
reported them stolen, and collected insurance proceeds. He was sentenced to nine months in
the House of Correction, suspended tor 18 months, and ordered to pay restitution in the
amount of $24,839.28.
• Commonwealth V. Leslie Weiser (Dedham District Court) Weiser made a claim under his
homeowner's insurance policy for alleged water damage to, among other things, an oriental rug
valued at $5,000. Subsequent investigations showed that the rug was not in Weisers home at
the time of the water damage. Weiser admitted to his fraudulent activities, pleading guilty at
his arraignment. He was sentenced to one year probation, ordered to pay $2,700 restitution,
and fined $20,000.
UNEMPLOYMENT COMPEN.SATION FRAUD
• Commonwealth v. Cecedio Tramontozzi (Suffolk Superior Court) Tramontozzi, as owner
of two businesses, failed to remit payments to the Division of Employment and Training (DET)
in the amount of $ 1 24,000. He dissolved one company, A.L. Corporation, and formed another,
A.L. Limited, to escape the former's accrued liabilities, which included federal and state payroll
tax withholding as well as non-payment to DET. Tramontozzi pleaded guilt)' and was sentenced
to one year in the House of Correction, suspended for three vears, ordered to perform 100
hours of communiry service, fined $ 1 ,000, and ordered to make a restitution payment of $67,000.
67
CRIMINAL BUREAU INSURANCE AND UNEMPLOYMENT FR.'KUL) DIVISION
• Commonwealth v. Valerie Prouty & Steven Salerno (Hampden Superior Court) While
operating a securit)' guard company, Prouty Failed to pay DEI approximately $139,000. To
avoid paying the money owed, Proiit)' and her fiance, Steven Salerno, put the company in his
mother's name. The amount still owed to DET after the title transfer was $48,840. Both
Prout)' and Salerno pleaded guilty. Salerno was sentenced to one yeat in the House of Correction,
suspended for five years. Prouty was sentenced to one year in the House of Correction, 30 days
to serve, with the balance suspended for five years.
• Commonwealth v. Beau Boyle (Concord and Wrenrham District Courts) Boyle committed
separate instances of unemployment compensation ftaud, using two social securit)' numbers.
He pleaded guilty and was sentenced to thtee years probation with full restitution, over our
objection. In the second instance, Boyle was sentenced to two years in the House of Correction,
with six months to serve, balance suspended for three years, and $19,602.28 restitution, per
the Commonwealth's recommendation.
• Commonwealth v. Adam Collins (Suffolk Superior Court) Collins committed larceny
and uttering in connection with passing counterfeit DUA checks through Citizens Bank branches
and was working while collecting benefits. (Collins pleaded guilty to all 40 counts and was
sentenced to two- and one-half years, committed, in the House of Correction, probation tor
three years and restitution of $18,138.
DET POST-CONVICTION CASES CLOSED IN FISCAL YEAR 2004
The ILIFD has a cooperative agreement with the Division of Employment and Training, helping
ensure that outstanding restitution is paid to DET. One of lUFD's roles in collecting these outstanding
balances included court appearances at post-conviction restitution status hearings. Assistant Attorneys
General were assigned to DET post-conviction cases on a rotating basis throughout the year. The
lUFD Assistant Attorneys General represented the Commonwe.ilth's interests in these settlement
agreements, ensuring that the taxpayers" interests were taken into account.
The following cases were fully closed out in Fiscal Year 2004, after restitution settlements were
agreed upon.
• Commonwealth v. Robert Gelles (Boston Municipal Court) This case involved fraud
perpetrated against DET. In this particular case, the total amount defrauded was $1^,288.56.
Gelles was in good standing with the coiut, having appeared when required and having made
the required payments. An agreed-upon settlement for Gelles' remaining balance was paid in
court, and the case was dismissed at a final restitution status hearing.
68
CRIMINAL BfREAU
INSURANCE AND UNEMPLOYMENT ERAUD DIVISION
• Commonwealth v. Raymond Aho (Boston Municipal CJourt) This case involved fraud
perpetrated against I)F T. 'ilie total amount dclrauded was $24,360.64. The defendant paid
all his rei]tiirctl restitution, and the case was dismissed and ofllcialN' closetl in the DF.T tiatabase.
PFRSONAI. INIURY FRAUD
• Commonwealth v. Edward Lopes (Bristol Superior Court) Lopes had collected workers'
compensation benefits and committed perjiuy in connection with a Division of Industrial
Accidents proceeding, hlis ginlty plea resulted in two )'ears probation, a $1,000 fine, and an
atlditional order to pay $1,250 in court costs.
STATISTICAL SUMMARY
During Fiscal Year 2004, lUFD indicted or charged 48 cases. A total of 45 cases were disposed of,
cither by trial or change of plea. Of these 45 cases, 16 defendants were ordered to serve committed
time in a county House of Correction. The disposed cases resulted in assessed fines of $130,822.
Restitution in these 45 cases totaled $967,795.
REFERRALS
REFERR/\L SOURCE
NUMBER OF REFERRALS
Insurance Fraud Bureau IS
Insurance Fraud Bureau/Division of Insurance/
Attorrney Cicneral/District Attorney Referrals 4
Other Insurance Companies 18
Department of Employment and Training 2
Department of Emplo\inent and Training — Post-conviction 72
Department of Employment and Training Referrals
to the Attorney Ceneral's Fair Labor and Business Practices Division 96
(jovernor's Auto Theh Strike Force
Letter
16
69
CRIMINAL BUREAU
INSURANCE AND UNEMPLOYMENT PRAUD DIVISION
National Insurance Crime Bureau
Suffolk County District Attorney's Office
Telephone
Walk- In
Other Divisions at the Attorney Ceneral's Office
Federal Agencies
Police Agencies
Other State Agencies
9
5
95
1
6
1
6
TOTAL
INVESTIGATIONS OPENED
REFERRAL SOURCE
359
NUMBER OF REFERRALS
Department of Employment and Training 3
Department of Employment and Training — Post-conviction 53
Department of Employment and Training Referrals to the
Attorney General's Fair Labor and Business Practices Division
Governor's Auto Theft Strike Force
Insurance Fraud Bureau 21
Insurance Fraud Bureau/Division of Insurance/
Attorney General/District Attorney Referrals 9
Letter
National Insurance Crime Bureau 9
70
( KIMINALBL'RHAi: INSURANCE AND UNEMPLOYMENT FRAUD DIVISION
Suffolk Clounry District Attorney's Office 9
Telephone 3
Walk-In
Other Divisions at the Attorney General's Office 2
Federal Agencies
Insurance Companies 20
Police Agencies
Other State Agencies 3
Insurance Fraud Bureau — Post-conviction 2
TOTAL 134
O IHER STATISTICS
Investigations Closed without Prosecution 148
Cases Charged 48
Cases Disposed of 45
Case Disposed with Committed Prison Time 16
Restitution and Fines Recovered $1,098,617
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
During Fiscal Year 2004, lUFD continued efforts to develop and investigate health insurance fraud
cases. As part of this effort, the division fostered its relationship with the FBI's Health Care Fraud Task
Force, focusing on provider fraud cases. lUFD has also established a private health insurance task force
with Blue Cross/Blue Shield, Tufts, and Harvard Pilgrim in an effort to identif}- appropriate cases to
71
CRIMINAL BUREAU INSURANCE AND UNEMPLOYMENT FRAUD DIVISION
investigate and prosecute. Several cases are currently being investigated as a result of the task force.
lUFD also receives case referrals directly horn the health insurers in cases that are beyond the scope of
the task force, and that also are being evaluated and investigated by lUFD.
lUFD contiruied efforts to combat arson-related cases by furthering its relationship with tiie ATF
and the State Fire Marshiill's Office. Several cases have been referred to lUFD. One such case against
Robert Thcrrien was successfully prosecuted this fiscal year.
Another area in which lUFD focused significant efforts was in fighting fraud related to the Central
Artery Tunnel Project, also known as the "Big Dig." lUFD investigated a number of cases involving
employees who were allegedly injured while working on the Big Dig. All of these workers went out on
disabilit)' because of theit purported injuries, and began collecting workers' compensation insurance.
In each instance, evidence has been developed suggesting that the employee began working another job
or jobs and misrepresented his employment status to the relevant insurer. Our objective in the coming
fiscal year will be to charge several of these cases together, to serve as a deterrent a.s well as punishing
these wrongdoings.
OUTREACH, EDUCATION, AND TRAINING
During Fiscal Year 2004, lUFD staff attended trainings on a regular basis, including the Eastern
Regional Trial Advocacy Training Academy sponsored by the National Association of Attorneys General
in Washington, D.C.; National District Attorney Association Training in Columbia, South Carolina;
Detective/New Criminal Investigator School offered by PATC; Electronic Surveillance Techniques
offered by NATI; and Financial Analysis training given by the NW3C. Staff also attended programs
offered by the AG Institute and in the Citizen Schools Legal Apprenticeship Program, helping grade
school students with writing skills in preparation for advanced studies.
lUFD Division Chief Eliot Green gave r\vo speeches to outside groups, the National ^XTlite Collar
Crime Center and the Board of Professional Licensure. I'he first was a lecture for investigators on the
topics of effective report writing, and effective preparation and delivering testirnonv. The second
presentation was delivered at a chiropractic seminar regarding chiropractic fraud.
72
CRIMINAL BL'REAU CRI.MINAI JUSTICE fOLICV DIVISION
CRIMINAL JUSTICE POLICY DIVISION
The Crimiiiiil Justice Policy Diviiion (CJPD) was created in Jul)' 1001, in conjunction wiih tiie
consolidation of the Community-Based Justice Bureau into the Criminal Bureau. The mission of
CJPD is to understand and assess topiciil criminal justice policy issues and advise the Attorney Cenerai
and his staff so that the\- may effectively carr)- out the Attorney Cenerals leadership role as the Chief
1 .aw Enforcement Officer in the Commonwealth. Through collaborative relationships with all members
ot the criminal justice communit)', CJPD is uniquely positioned to use its knowledge and experience to
furtiier decision-making that is in the public interest. Toward this end, CJPD's responsibilities fall into
five broad categories: 1) liaison to external criminal justice and law enforcement agencies and
organizations; 2) criminal justice legislation; 3) criminal justice education; 4) crime prevention initiatives;
and 5) policy-based appellate briefs, aviiciis briefs, investigations and prosecutions, and various other
special assignments.
The Criminal Justice Policy Division included James O'Brien, Division Chief; Marsha Cohen;
Jean Fanning; Pamela Hunt; EmiK' Paradise; and Catherine Sullivan.
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
An important role of the division's attorneys is serving as liaisons to external law enforcement
agencies and organizations. The meetings and personal contacts are one of the primary means by
which CJPD learns of, and becomes knowledgeable about, the important criminal justice issues of the
day. During Fiscal Year 2004, CJPD attorneys interacted with the Anti-Terrorism Task Force, Appellate
Bench Bar Committee, Boston Bar Association Criminal Justice Section, Massachusetts Statewide
University and College Coalition on Underage and Problem Drinking, Commonwealth's Appellate
Attorneys Action Project, Commonwealths Criminal Justice Research Croup, Criminal History Systems
Board, Department of Public Health Drug Trends Advisory Croup, Department of Public Health
Emerging Drugs Task Force, Elder Abuse Project Steering Committee, Equ.il Justice Partnership,
Governor's Advisory Council on Alcoholism and Drug Rehabilitation, Massachusetts Association of
Campus Law Enforcement Administrators, Massachusetts Chiefs of Police Association, Massachusetts
Sentencing Commission, Massachusetts Bar Association Corrections and Sentencing Practice Group,
MDAA/ACO Criminal Rules Training Working Croup, MDAA Legislative Subcommittee, MDAA
73
CRIMINAL BUREAU CRIMINAL JUSTICE POLICY DIVISION
Juvenile Justice Subcommittee, MDAA DNA Working Ciroiip, MDAA Sexually Dangerous Person
Working (iroup, Massachusetts F.meigency Management Agency, Municipal Police Iraining Committee,
SJC Standing Advisory Committee on C'riminal Rules, Statewide Cliild Fatality Review Team, and the
Trial Court Criminal Standing (2ommittee of the MassCourts Project.
Criminal justice legislation is another core finiction of CJPD. It works closely with, and serves as
the Criminal Bureau's primary liaison to the Attorney General's Policy and External Affairs Division.
In Fiscal Year 2004, CJPD played a coordinating role in soliciting ideas and making recommendations
on the Office of the Attorney General's slate of criminal bills. It drafted and testified on behalf of
various proposals. In addition to the Attoiney (leneral's own bills, CJPD also: I) participated on the
MDAA Legislative Subcommittee and shared information, ideas, and respective priorities within and
between a variety of law enforcement agencies; 2) helped draft, edit, and review other legislation affecting
the criminal justice system; and 3) made recommendations to the Attorney Gener;il on supporting or
opposing specific pieces of legislation.
During Fiscal Year 2004, significant bills that either were sponsored bj' the Attorney (lenerals
Office or were the subject of noteworthy CJPD involvement included: Sentencing Guidelines; Wronghil
Conviction Compensation; DNA Database Expansion; ID Theft; Home Improvement Contractor
Regulations; Assault Weapons Ban; CORI Checks lor Certain Businesses and Nursing Homes;
Mandating Courts to Advise Defendants About Deportation Consequences During Change of Plea
Colloquy; Safe Havens for Unwanted Newborns; Child Endangerment; Needle Exchange; Sexually
Dangerous Persons; Information Sharing About Juveniles; Conducting Fyewitness Identifications; Post-
Conviction DNA Testing; Electronic Recording of Interrogations; Victim Bill of Rights; Empanelling
Grand Jury with Statewide Jurisdiction; Taxpayer ID Numbers for Immigrants Without Socid Security
Numbers for Driver's License Application; Mandating Police Training for Interaction With Persons
With Mental Illnesses; Gun Legislation Making FID Cards Good for Life; Mandating Reporting of
Suspicions of Child Abuse by Doctors and Other Health Profession's to District Attorneys in addition
to DSS; and Outside Sections to the Budget.
The Environmental Endangerment Act, G .L. c. 2 1 L, an itnportant piece of the Attorney Generals
criminal justice legislative slate, was enacted into law and became effective on July 1, 2003.
CJPD's primary function is policy, not programs. Notwithstanding, from time to time CJPD
becomes involved in crime prevention initiatives, cither because the program started as a policy idea
within the division, or because there is a particular interest or expertise in that area. Noteworthy crime
prevention initiatives included:
74
c RIM1NALBL:REAL.' CRIMINAL JUSTICE I'OLICV DIVISION
• 9/11 Hate (Crimes Working (iioup/Aiui-rtrrorism: C^Jl'I) coiuiniicd to represent the Criminal
Bureau in activities related co tiie events ol 9/11, including as a liaison to law enforcement
personnel involved in anti-terrorism ettorts, and civil rights staff working to protect people,
who arc or nuis- be the subjecr ol hate crimes and other animosity as a result of the terrorist
attack;
• Sportsmanship Alliance of Massachusetts (.SAM): Formerly known .is the Ma.ssachusetts Alliance
tor the Promotion of S[iorismanship (MAPS), SAM is an alliance of professional sjiorts teams
and other organizations committed to changing the culture of sports in the Commonwealth b)'
promoting sportsmanship and reducing sports violence and un.sportsmanlikc conduct. CJPD
has pla)'ed a significant role on the Polic)- and Ciuidelines Committee, attending meetings,
contributing to the proposal of the structure and governing rules for a freestanding 501 (c) (3)
charitable organization that will conduct the business of the Alliance, redrafting Alliance bylaws
to meet its specific needs, and assessing the support level from professional teams in order to
determine whether it is feasible to incorporate.
SIGNIFICANT CASE SUMMARIES
• DYS Cases: Andrew v. Department of Youth Services, Commonwealth v. Andrew, and
Commonwealth v. Eliot E. (SJC and L\-nn juvenile Courts; all of the cases were impounded).
These cases involve constitutional and legal challenges to the statutor)' process for extending a
juvenile's commitment to the Department of Youth Services (DYS) beyond his or her 18'"'
birthday. Working closely with DYS legal counsel and the qualified examiners contracted by
DYS to evaluate, CJPD helped DYS set up a process to handle these cases that would pass
constitutional muster and have a good record for appeal. Before the end of Fiscal Year 2004,
CJPD presented oral argument in the SJC in Andrew v. DYS on whether there was a right to
bail or other process while awaiting trial on continued control and subsequently filed a post-
argument supplement to the brief addressing the courts concerns. The case was under
advisement. CJPD represented DYS on appeal in Commonwealth v. Eliot E ., which raises
similar issues.
• RCAB Grand jury Investigation (Suffolk Cirand jury) I he Division C^hief was involved
extensively as a member of the Office of the Attorney Ceneral team that investigated the Roman
Catholic Archdiocese of Boston (RCAB). The investigation consisted of two phases: 1 ) assessing
whether clergvVRCAB personnel, with a histor\' of sexual misconduct involving a minor, remained
in positions that presented a current risk for committing such misconduct; and 2) historical
75
CRIMINAL BUREAU CRIMINAL JUSTICE POLICY DIVISION
review of management knowledge and decision-making regarding clergy/RCAB personnel
accused of sexual misconduct involving a minor, and whether the management conduct rose to
the level of criminal misconduct. In Fiscal Year 2004, the Attorney (ienerals 16-month
investigation into the RCAB ended, and the Office issued its final report on the "Sexual Abuse
of Children in the Roman Catholic Archdiocese of Boston." The 76-page report was a
collaborative effort of staff from acro.ss the Office of the Attorney General, including the Criminal,
Public Protection and F.xecutive Bureaus. The Division Chief was involved in drafting, reviewing,
and editing the report as well as preparing the Attorney General for a news conference announcing
the investigation results.
• Commonwealth v. William Rodriguez, et al. (Lawrence B&E case) (Middlesex, Essex,
Norfolk, and Hampden Superior Courts) This case involved the prosecution of a burglary ring
that targeted retail stores around the state. One-hundred-sixteen indictments were returned
against nine men on six break-ins that took place in four counties (Middlesex, Essex, Norfolk,
and Hampden). Previously, four of the defendants had pleaded guilty to all charges against
them and received committed sentences. In Fiscal Year 2004, a fifth defendant was rendited
from Florida (where he was serving a state prison sentence) back to Massachusetts, and arraigned
in the four counties where he had cases pending. He pleaded guilty in all of the cases and to all
charges pending against him, and received a state prison sentence for his involvement in the
B&E ring. Also in Fiscal Year 2004, the purported ringleader and one of the two remaining
defendants went to trial in Hampden County. 1 he ringleader was convicted by a jur)' on the
lead charge of B&E in the nighttime with intent to commit a felony, and acquitted on three
stolen motor vehicle charges. He received a committed sentence, from and after a second-
degree murder sentence he was currently serving. The sole remaining defendant (excluding the
cooperating witness) had his case put over for trial past Fiscal Year 2004.
• Commonwealth v. leffrey Bly (Supreme Judicial Court and Suffolk Superior Court) This
case is the appeal from the conviction of Bly for the 1 995 murder of Assistant Attorney General
Paul McLaughlin. The Superior Court held a hearing on the Commonwealth's motion for a
colloquy with the defendant on a potenti;il conflict of interest by appellate counsel. After
appointing separate counsel for the defendant for purposes of the colloquy, and conducting a
thorough and lengthy collocjuy, the court found the defendant knowingly and voluntarih' waived
any potential conflict and consented to have the particular attorney as appellate coimsel.
• Coe v. Sex Offender Registry Board (SORB) (Supreme Judicial Court) ('JPO was involved
in working with the Covernnieni Bureau in Coe, a case challenging the constitutionalit)' of
76
( RIMINALBL^REAU CRIMINAL JUSTICE I'OLICV DIVISION
legislation that allows .SORB to post iiilomiation abotit LlvlI .5 sex otteiulers on the Internet.
Division attorneys reviewed drahs ol the S( )RB brief and were activel)' involved in the solicitation,
preparation, and ciliring of ainiciis hriehs as well as participating in the moot court preparation
for argtinient.
OUTREACH, EDUCATION, AND TRAINING
Another core function of ("Jl'D is to educate and inform on issues of importance to the criminal
justice community. This task is accomplished in three distinct ways: 1) through publication of the
(yi)ni)ial Justice News (CjN); 2) through formal educational training; and .3) through informal education;il
training.
In Fiscal Year 2004, the division produced a special four-page CJN issue focusing on the topic of
consular notification requirements after the arrest or detention of foreign nationals, discussed in the
Appeals Court decision (Commonwealth v. Diemer , 57 Mass. App. ("t. 677 (2003). Ihe Attorney
(jenerai's Office filed an iiniicus brief in Diemer , which dealt with the consular rights and requirements
under the Vienna Convention on Consular Relations. The specid issue, which fulfilled the commitment
made in the amicus brief by the Office of the Attorney General to continue to educate law enforcement
and state and local officials on their obligations under the Vienna Convention, was distributed statewide.
In addition, the State Department attached the special CJN issue to its brief filed in the International
Court of Justice as an example of efforts by the United States to educate local law enforcement about
the Vienna Convention and consular notification. All CJPD members played a role in producing the
special issue.
The four attorneys in CJPD are experienced prosecutors, with both trial and appellate backgrounds.
They arc frequently invited to serve as faculty/staff for formal training programs. These trainings
afford CJPD law)'ers the opportunity' to share their experti.se with other criminal justice professionals.
Significant Fiscal Year 2004 trainings in which CJPD staff participated as faculty/staff included:
• ACO/MDAA Criminal Rules Training Croup;
• N AAC Trial Advocacy Trai n i ng;
• MDAA Annual Conference on Handling Sexually Dangerous Person Cases;
• AC Institute;
• SJC Historical Society;
77
CRIMINAL BUREAL' VICTIM COMPENSATION AND ASSISTANCE DIVISION
• National Moot Court Competition;
• Boston College Law School Constitutional Law Moot Court Team;
• New Jersey Attorney Ceneral Trial Advocacy Training;
• Citizen Schools Program to help eighth-graclc students improve writing skills and get into the
high school of their choice; and
• Annual Prosecutors" Conference.
In addition to the more forni;vl educational assistance and training, CJPD attorneys routinely fielded
leg;il queries and an array of other requests for information and guidance from professionals throughout
the criminal justice community. Without giving formal legal opinions, division members provided
objective guidance and assistance. A large part of ever\' workweek was spent providing this service to
law enforcement officials and others within the criminal justice network. During Fiscal Year 2004,
assistance was provided to the Criminal Histor)' Systems f^oard, the Massachusetts District Attorneys
Association, Massachusetts District Attorneys" Offices, the Massachusetts Chiefs of Police Association,
and the Massachusetts Department of Public Health. The subjects covered were varied, including
sexually dangerous person cases, sealing of criminal records, sentencing issues, prosecution of "peeping
toms, " juvenile records, numerous issues regarding CORI, problems with drug destruction, discover)'
of investigator notes, criminal record checks of grand jurors for security purposes, notification to state
and county retirement boards of conviction of state and locaJ government employees, issues relating to
the legal and practical impact of the Supreme Court decision in Crawford v. Washington , bringing an
individual serving a Massachusetts sentence in Rhode Island back to Massachusetts to commence sexually
dangerous person commitment proceedings, underage drinking and prevention, illegal liquor sales to
minors, the legal standard of review of a regulations statutory authorization, and related appellate
procedures, possible crimes involved in assisted suicide, the HIPAA law, law and procedure on detainers
fileci by other states, an ivniciis brief concerning suggested procedures for Bishop-Fuller subpoena issues,
gun deder licenses, recall of bullet-proof vests, curfews on college campuses, protocols the Office of the
Attorney proposed in 1980 for ]\xry selection, drafting of a further appellate review application on the
form of second or subsequent offender indictments, stays of execution, and sentencing and probation
matters.
VICTIM COMPENSATION AND ASSISTANCE DIVISION
The Victim Compensation and Assistance Division provides financial compensation, referrals, and
other assistance to victims of violent crime. Most significant!)', it assists qualif)'ing victims and their
78
CRIMINAL HL;RLAU \l( I IM COMPENSATION AND ASSiSTANCH DIVISION
families in paying for out-of-pocket medical expenses, lost wages, funeral and burial, mental health
counseling, and other crinic-related expenses. Since 1994, the division has assumed legal and
adniinistiaiive responsibilir\- lor receiving, investigating, and determining all compensation claims in
accordance with the requirements of Ci.L. c. 258C. PreviousI)', compensation claims were determined
through a litigation-based process in the district courts. In addition, since 2002, the Office of the
Artorne)' General assumed responsibilit\- for the payment of claims, taking over that responsibility
from the Stare I'rcisurers OfVice.
I)i\ision staff included (."her)'l Watson, Division Director until October 2003; Deborah Fogarry,
Division Director after October 2003; Sandra C'lark; Elizabeth Desmond; Krica Johnson; Joanna
Kennefick; Julie King; Amanda McCee; Laura Michalski; and Linda McDonough. The division
operated with four investigators for most of Fiscid Year 2004, and was successful in clearing up a
significant backlog of cases from the prior fiscal year, during which the division operated with two
investigators. The departure of Linda McDonough in February meant that the division was without an
Advocate/Outreach Coordinator for about half of the fiscal year. The position was posted and Gad}'flor
Nicolas-St. Clair was hired as the new Advocate/Outreach Coordinator.
STATISTICAL SUMMARY
CLAIM INFORMATION TOTAL # CLAIMS
New Claims Received 1,277
New Claims Opened 1,536
Supplemental Claims Opened 770
Administrative Review 114
Decision Affirmed 98
Decision Modified or Reversed 16
Fiomicide Claims 195
Judicial Review 6
79
CRIMINAL BUREAU VICTIM COMPENSATION AND ASSISTANCE DIVISION
In Fiscal Year 2004, die Victim Compensation and Assistance Division received 1 ,277 new claims.
1 his number represents a slight decline hom the 1 ,392 new claims received in Fiscal Year 2003- During
Fiscal Year 2004, the division received 195 homicide claims, down hom the 224 claims received in
Fiscal Year 2003. The division continued to work on claims submitted by (amily members of victims
of the September 1 1, 2001 attacks, and paid $53,122 on 31 claims in Fiscal Year 2004.
EXPENDITURES
During this fiscal year, the total compensation awarded to victims was $2,780,826.60. Approximately
$2.1 million came from state funds, and the remainder from federal Rmds. This amount represents a
decrease in awards of approximately 30% from Fiscal Year 2003 total payouts. This year is the ninth
consecutive year in which the division had adequate funding to support expenditures.
PROGRAM EVALUATION
An applicant survey was sent to each claimant with decisional letters. The division received 482
completed surveys from claimants. Surveys were overwhelmingly positive, with approximately 85% of
claimants agreeing or strongly agreeing that the application was easy to fill out, the letters were easy to
understand, and victim compensation staff treated them with respect. In spite of the periodic
understaffing, most claimants agreed that these phone calls were returned promptly, and that they were
satisfied with the amount of time it took to process their claim.
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTI\aTIES
GRANT ACTl\aTY
The division applied for and received a continuation grant for Fiscal Year 2004 from the Fxecutive
Office of Public Safety through tlie Department of Justice, Violence Against Women Act (VAWA)
funds in the amount of $49,988. These funds continue to support Julie King, and subseqiiendy
Elizabeth Desmond, an investigator/victim advocate, who provides specialized services to domestic
violence, sexual assault, and stalking victims seeking compensation and services from the division.
The division applied for an annual grant for Fiscal Year 2004 from the Department of Justice
through Victims of Crime Act Funds (VOC^A) in the amount of $1,520,000. This amount represents
60% of the total state appropriation paid out in the prior fiscal year, and is an increase over the prior
VOCA grant amount of $1,142,000.
80
CRIMINAL BUREAU \ICTIM COMPENSATION AND ASSISTANCE DIVISION
FEDERAL REPORTING RhOUlREMENTS
Tile division submitted its annual C^citiUcaiion Report and C^uartcrl\' i^epoits to tlic Dcp.utmciit
of Justice, Oftlce for Victims of Crime for tlie Victims ot Crime Act. In addition, the division submitted
quarterly reports to the Executive Office of Public Safety for the grant under the Violence Against
Women Act, referenced above. Finally, an annual Performance Report and Grant Application were
submitted requesting coiuinuatioii ttuuling tiom the Department of Justice through the Victims of
Crime Act.
AUTOMATION
The division continued to work with the Genoa Group in Colorado to improve with the new
victim compensation software. Previous issues have been resolved and staff is pleased with the ease and
efflcienc\' of the program. The Division Director will continue to work with the software developer to
enhance reporting capabilities in order to eliminate the need to manually compute information necessary
to complete the quarterly and atmual reports to the Office of the Attorney General and the federal
government.
DIVISION MATERIALS
For the third year, in recognition of Victim Rights Week, division staff developed a new calendar
using posters created b\' art students at the Paul McLaughlin Youth Center. The calendar was distributed
at the annual Victim Rights Conference in Marlboro held in April 2004.
Using funding available in the VAWA grant, the division reprinted the small "palm" cards that
contain information about the Victim Compensation Program. The cards include division contact
information as well as the Domestic Violence Safelink 24 Hour Hotline number. Ihere had been
several rec]uests from police departments for the cards so that they can be made available to police
officers to give to victims at first response.
As a result of a division investigation regarding a mental health provider, the division also enhanced
the new mental health verification and treatment form. The form requests more comprehensive
information about the mental health treatment being provided to victims. The form was created after
reviewing a number of forms that are used by other victim compensation programs across the country.
CRIMINAL BUREAU RNANCIAL INVESTIGATIONS DIVISION
OUTREACH, EDUCATION, AND TRAINING
Outreach and training about the program and its benefits continued to be a major focus for Fiscal
Year 2004:
• SAFF.PLAN domestic violence advocates in Worcester, Pittsfieid, and Bridgevvater, MA;
• Administrators ofVOCA fimdcd programs, sponsored by MOVA;
• Boston Area Sexual Assault Coalition, Norfolk District Attorney's Children's Advocao' Mental
Health Providers, Brockton Family Resource Center, Rape Crisis Counselor training at Tufts
University, Children's Hospital, Middlesex District Attorney's Office, The U.S. Attorney's Office
and U.S. Probation Department, Worcester Youth Cuidance Center, Center for Community
Health, Education and Research; and
• Members of the division participated in the Office's Sexual Flarassment/Diversit)' Trainings
and a training on dealing with difficult callers/walk-ins.
Division staff also represented the Attorney General at a number of committee meetings
throughout Fiscal Year 2004:
• Executive Office of Public Safety VAWA Advisory Committee;
• Norfolk District Attorney's Children's Advocacy Advisor}' Board;
• MOVA Victim Witness Assistance Board;
• MOVA Victim Rights Legislation Working Group;
• MOVA Victim Rights Planning Committee and the 20''' Anniversary of Victim Rights Law
Statehouse F.vent; and
• Staff were also active on the Office's Employee Benefits Committee and the Diversity Committee.
Division staff attended the NACVB regional conference in Burlington, V 1"; the Massachusetts
District Attorneys Association Training for Experienced/Advanced Advocacy; and the U.S. Attorney's
Office Conference on Multi-Jurisdictional Issues in Victim Services in New Hampshire.
FINANCIAL INVESTIGATIONS DIVISION
The Financial Investigations Division (FID) provides the Criminal Bureau with seven experienced
civilian investigative professionals who investigate and assist in the prosecution of white-collar criminal
CRIMINAL BUREAU PINANCIAL. INVESTIGATIONS DIVISION
cases. Tlicse investigations inclnde laiccn\', idcntit)- theft, public coriLiption, securities fraud, tax fraud,
and all other white-collar frauds, which are referred to the liivision. The investigators bring to the
tlivision many years ot experience from investigating cases in local, state, and federal government as
well as private-sector venues. Investigators assigned to the Financial Investigations Division work as
part of the bureau's team approach to criminal investigative work. Division members become involved
in matters at the start of investigation and work closeh' throughout with Cjiminal Bureau prosecutors
and also Massachusetts State Police assigned to the Bureau's C'riminal Investigation Division.
Investigators also ma\' be asked to work on a case-by-case basis with investigative or aiulit personnel
from referring agencies such as the Board of Bar Overseers (BBC)), Criminal Investigations Bureau of
the Department of Revenire (CIB), Department ot Education (DOE), Office of the State Auditor
(OSA), and Securities Division of the Secretary of States Office (SOS).
As part of the in\cstigation and prosecution team, division investigators assist in the design and
implementation of an investigative plan for each investigation. Ihe planning requires that each member
of the division understand the nature ot the allegations, elements of the crime, and evidence required to
prove the matter at trial.
Criminal Bureau investigations involve prolific documentary evidence, and recjuire division
investigators to perform extensive examination and analysis of business, personal, and financial records
to document the illegiil activities of the white-collar criminal. Additionally, division investigators conduct
interviews of victims, witnesses and targets, and provide summar)' witness testimony before grand
jiuies and at trial. Furthermore, utilizing modern computerized technolog}', 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 divisions investigative assignments come from the Bureaus Corruption, Fraud,
and Computer Crime Division. The division works closely with the Chief of the Corruption, Fraud,
and Computer Crime Division during the screening process, and then with the assigned assistant
attorney general when a matter has been accepted for formal investigation.
During Fiscal Year 2004, the division also committed investigative resources to the Special
Investigations and Narcotics Division. Since FIDs formation in 1995, it h;is also performed investigative
assignments for the Bureau's Environmental Crimes Strike Force and Appeals Divisions.
This fiscal year, division personnel included rvvo Certified Fraud Examiners and five investigators
with backgrounds from the banking and insurance industries. Members of the division for the year
83
CRIMINAL BUREAU FINANCIAL INVESTIGATIONS DIVISION
were: Paul Stewart, Division Director, Certified Fraud Examiner (CFE); David Baiter; Jennifer Chaves;
Michael Cuarin; Jen Hoihngsvvorth; Jim McFadden, CFF; and Sailyann Nelligan. Investigator Raker
was the recipient of the Attorney Geiienil Edwiird McCommck Aivardior outstanding achievement awarded
at tile Attorney General's Office Staff Awards Ceremony in September 2003.
SIGNIFICANT CASE SUMMARIES
Division members served as Commonwealth sunmiar)' witnesses in the grand jury tor a number of
matters indicted during the year. Additionally, division members were scheduled to serve as summar)'
witnesses at trial for matters that reached a final disposition as a result of guilty pleas. The division
requesting Financial Investigations Division involvement in each matter was the Corruption, Fraud,
and Computer Crime Division, and more specific information about each of these matters can be
found by referring to the Corruption, Fraud, and Computer Crime Divisions section in this report. A
statistical summary of matters investigated by the Financial Investigations Division immediately follows
the case listings.
The following indicted cases involved multiple business or consumer victims:
• Commonwealth v. Herion Karbunara
• Commonwealth v. David Giovannucci
• Commonwealth v. Al Mondel
The following indicted cases involved employee embezzlement:
• Commonwealth v. Barbara Johnson
• Commonwealth v. Cynthia Perry Alves
• Commonwealth v. Helen Newton
The following indicted cases involved procurement fraud:
• Commonwealth v. Acme Waste Systems, Inc.
• Commonwealth v. Anita Rocheteaii
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CRIMINAL BUREAU IINANCIAL INVES1 IGATIONS DIVISION
STATISTICAL SUMMARY
Screenings/Intakes 295
Cases 59
TOTAL 354
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
1 he division also performs man)' administrative duties tor the Bureau witii respect to cars, seized
evidence, and tiie spending ot forfeited funds. The division is responsible for the assignment, reporting,
and maintenance of all bureau cars. The division maintains a log of all money seized by the State Police
in association with any arrest. The seized money is kept in safet}' deposit boxes and the contents are
inventoried on a quarterly basis by division staff. Additionally, the division prepares an accounting of
all funds forfeited through the Special Investigations and Narcotics Division, which are subsequently
disbursed in accordance with the Commonwealth's forfeiture laws. The accounting system is designed
as a management tool for the bureau, not only to retrospectively track spending but also to project
future needs.
1 he division also works with State Police command to assist with background and warrant checks
and NCIC incjuiries.
Division members also t;ike a turn in the rotation <xs dut}' officers. The daily duty officers' duties
involve dealing with all citizen inquiries for that particular day.
OUTREACH, EDUCATION, AND TRAINING
The staff is also an integral part of the bureau's outreach to referral agencies, maintaining contact
with the BBO's Senior Financid Investigator and CIB's Chief Investigator to update them periodically
on the status of all referrals from their respective agencies to the bureau. BBC) and CIB cases are
referred through the Corruption, Fraud, and Computer Crime Division. Our outreach efforts are
designed to complement those of the Corruption, Fraud, and Computer Oime Division ("hief
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CRIMINAL BUREAU t INANCIAL INVESTIGATIONS DIVISION
Division members maintain memberships in many exrernal organizations, including the Boston
Clearing House Association-Check Fraud Suhcommittee, High Tech Crime Investigators Association,
International Association of (^.ertified Fraud Fxaniiners, International Association of Financial Crimes
Investigators, and the International Association of Law Enforcement and Intelligence Analysts.
Internall)', division members are members of the Attorney Gener;il s Benefits Committee, Elder
Task Force, Office- Wide Health Care Committee, and Public Records Office, and have volunteered as
tutors at the Paul McLaughlin Center.
One member of the division is the Attorney Generals liaison with the National White Collar
Crime Committee (NW3C) and as a direct result ot her efforts, the Attorney General's Office hosted
an NW3C-taught course entitled Fi>ia>icial Records and Evidence Analysis in January 2004.
As part of the Attorney General Institute (ACi Institute), division members have prepared and
taught training sessions to their colleagues, as well as personnel from outside referral agencies and
groups, such lis Arson Investigators Association, Boston Chapter of the International Association of Certified
Fraud Examiners, Bosto>i Clearing House, and the Southeastern Alassacht/setts Fraud Investigators Association.
Presentations included:
• Financial Investigative Techniques;
• Bank Information: How to Get It and What It Tells You;
• Interview and Report Writing Techniques;
• Investigating and Preparing an FIder Financial Fxploirarion Case;
• Investigative Resource Sites on the Internet; and
• Financial Investigations Division Structure and Operation.
Division members attended a number oi external training sessions throughout the year including:
• United States Postal Service, External Crimes Training, |ul\' 2003;
• Bridgewater State College, Computer Forensic Training, August 2003;
• Ip3securir}'.com, IT Securini Workshop, September 2003;
• International Association of Certified Fraud pA'aminers, Handwriting Analysis Training.
September 2003;
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CRIMINAL BL:REAI.' SAFE Nr.lGHESORMOOD INITIATIVE DIVISION
• Association oi liucllij;encc and Sccurit)- Stiulics, Rei^ Interviewing lechniques, October 2003;
• International Association ot ("trtificd Fraud Examiners, Bank Fraud Training, October 2003;
• HT('/A Training, November 2003; and
• State Police Academy, Internet Crimes Against Children Training, December 2003.
The divisions intern program seeks to provide a valuable one-semester training experience for
iiueiested students th.it have a backgroimd in accounting, finance, business law, or criminal justice.
I h rough the efforts ot our intern coordinator, the division has been provided with a stead)' stream of
talented interns from graduate and undergraduate programs throughout New England.
As a direct result of their volunteer experience with the divisions program, Financial Investigations
Division interns have accepted jobs with Hewlett Packard Corporation, John Hancock Life Insurance
Company, Suffolk Count}- District Attorney's Office, and the Office of the Attorney General.
SAFE NEIGHBORHOOD INITIATIVE DIVISION
First established in Dorchester in Februai")' 1 993 by the Office of the Attorney General, the Suffolk
Comity District Attorneys Office, the Mayor's Office of the City of Boston, and the Boston Police
Department, the Save Neighborhood Initiative (SNl) has evolved and thrived under the leadership of
Attorne)' General Tom Reill)'. Based on the premise that no single entit}' alone can solve all problems
faced by a community, the SNI provided a framework for community residents and service providers to
work collaboratively with law enforcement and government agencies to identify and address priorit)'
public safet)' and quality-of-life issues in the communit)'. The SNl model has been replicated in a
number of communities across the C^ommonwealth — each using a somewhat different approach.
Some are law enforcement-driven while others are community-driven, but all are organized around the
three core principles of coordinated law enforcement; neighborhood revitalization; and prevention,
intervention, and treatment. During Fiscal Year 2004, the Office of the Attorney General participated
in active SNI partnerships in Taunron, Brockton, Orange, and the Grove Hall and Dorchester
neighborhoods of Boston. In addition to maintaining various ongoing SNI partnerships, the SNI
Division engages in a nimiber of innovative community-based activities to prevent crime and promote
public safet)', some of which are described in the sections below.
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CRIMINAL BUREAU ^^^^ SAFE NEIGHBORI lOOD INITIATIVE DIVISION
During Fiscal Year 2004, division staff included Division Director Ellen Frank; AAC Jennifer Adreani;
Helena Almeida; AA(i Linda DelCastilho; Jennifer Crigoraitis; AACI Katherine Hatch; AAG Cheryl
OConnell; Kristen Palma; (Christina Ruccio; Lenell Silva; and AAC Neil fassel.
SIGNIFICANT CASE SUMMARIES
Community prosecution is critical to the coordinated law enforcement component of the SNl
model. As a result of their close and ongoing work with communit)' partners, the Assistant Attorneys
Ceneriil assigned to the SNl establish roles beyond those ol traditional prosecutors. They participate in
regular community meetings and special events, and serve as valuable resources for law enforcement,
residents, and local service providers. As a result of their direct community involvement, the SNl
prosecutors are able to assess issues of importance to the community and help determine how resources
from the Attorney Generals Office, local District Attorneys Offices, and other agencies are best utilized
to address those concerns. 1 he Superior Court Assistant Attorneys General for the Dorchester and
Grove Hall SNls prosecute major felonies consisting primarily of serious drug offenses, large-scale drug
seizures, armed robberies, armed career criminals, and firearm offenses. The District Court Assistant
Attorneys General for the Grove Hall and Lawrence/Methuen partnerships prosecute primarily narcotics,
firearms, prostitution, and other quaiiry-of-life offenses that are priorities for the respective communities.
The District Court prosecutor for Orange prosecutes all District Coiut cases arising from the Town of
Orange as well as other cases in the Orange District (]ourt jiuisdiction involving defendants from
Orange. Summaries included below are examples of t\'pical cases handled by SNl prosecutors.
• Commonwealth v. Dwayne Boudreau (Orange District Court) The defendant was a
Level 111 sex offender. He was charged with failure to register with the Sexual Offender Registry
Board. He pleaded guilt)' and was sentenced to six months in the Fiouse of (Correction, suspended
for one year. The defendant was subsec]uently arraigned on a domestic assault and battery. The
Commonwealth moved to revoke bail; the motion was granted and the defendant was held.
He subsequently pleaded guilr\' to the assault and batter\' and was sentenced to one year in the
House of Correction. This situation subjected the defendant to SDP action since he was jailed
after commitment on the predicate offense.
• Commonwealth v. Thomas Smith (Orange District Court) The defendant committed
assault and battery on his girlfriend. Becau.se of his previous record, the Commonwealth moved
for detention under 58a. Fhe Commonwealth obtained copies of the police reports from the
cases in the early 1 990s and presented them as evidence along with the current victims testimonv.
The judge determined the defendant to be a dangerous person, and the case was set for tri.d.
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CRIMINAL BURtiAl.' SAFI- NEICIIBORHOOO INITIATIVE DIVISION
The Commi)nvvcaltli icconi mended two- and one-halt )'ear.s in the 1 louse of ("orrcction, 18
months to serve, the balance siispendetl two years with a condition that the defendant enter a
certified batterers' program. The judge sentenced the defendant to one year in the House of
Correction, six montiis to serve, the balance suspended for two years with a condition that the .
defendant complete a certified batterers' program.
• Commonwealth v. juvenile (Youthful Offender) (Lawrence District Court) This 16-year-
old juvenile and another bo\' accosted three teenage boys standing outside a variet)' store. The
juvenile pointed a gun at the bo\'s and demanded money and the items the\' had just purchased.
When the bo\'s refused and ran, the juvenile fired a BB gun several times, hitting one of the
boys in the back three times. Based on the serious and violent nature of this incident, the age
ot the juvenile, and his prior record, he was indicted as a vouthkil offender on charges oi Armed
Assault with Intent to Rob, Assault and Battery with a Dangerous Weapon, and Assault. The
Commonwealth was prepared for trial even if the juvenile changed his plea. The juvenile was
just 17 and had never been committed previoiisl}', so after careful consideration oi the impact
ot this crime upon the community but also the best interest of the juvenile, the juvenile was
sentenced to a House of Correction sentence suspended for xv.'o years with strict conditions of
job training, education, counseling, a stay-away order, a letter of apology to the victims, and
community service.
• Commonwealth v. Edward Britt (Suffolk Superior Court) Hearing noise outside before
dawn, a young teacher went to see what was occurring, and with his wife and )'oung son
watching, the defendant pointed a gun at him and threatened to shoot him. At the time of the
offense, the defendant was on probation in Suffolk Superior Court for carjacking. The defendant
was subsequently arrested and charged with Assault with a Dangerous Weapon (gun) as a habitual
offender. He pleaded guilty to the habitual offender charge and was sentenced to the maximum
five years.
SIGNIFICANT INITLA.TIVES, EFFORTS, AND ACTIVITIES
BROCKTON SNI
The Attorney Ceneral's OfFice supports the position of the SNI Community Liaison, who is based
in the Plymouth County District Attorney's OfFice and works closely with that office, with the other
principal partners from the City of Brockton and the Brockton Police Department, as well .is with
community residents and service providers. The Brockton SNI Advisor}' Council meets monthU' to
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CRIMINAL BUREAU SAF-E NEIGHBORHOOD INITIATIVE DIVISION
discuss communit}' concerns primarily related to crime and public safety. The Brockton SNI collaborates
with community service providers and public agencies on a number of initiatives. Two examples of
initiatives are listed below.
• Vacant Lot/Neighborhood Ciean-Ups: This initiative is a partnership among the Plymouth
Count}' District Attorneys Office, the Mayor's Office, the Office of Community Corrections,
and the Department oi Public Works. The purpose of the project is to provide community
residents with assistance in cleaning vacant lots and neighborhood streets in the SNI target area
that may pose crime or health and safet}' hazards if not maintained.
• Landlord Notifications: I'he purpose of this initiative is to provide notification to landlords
whose tenants have been charged with drug-related oHenses. Landlords are given information
regarding their obligations to maintain the safety of their properties. The SNI Community
Liaison works with the District Attorney's Office on this initiative and is responsible for
implementing the system for notifications.
DORCHESTER SNI
The Dorchester SNI Advisory Council continued to meet monthh' to identif)- and address the
most pressing public safety and quality-of-life issues, including many that have consistently plagued
the community (e.g., youth violence, truano,', and a lack of job and training opportunities). The
Boston Police Department and other law enforcement partners focused primarily on "impact players"
involved in criminal activit)' and qualit)'-of-life issues, while service providers focused on providing
after-school programming offering recreational, educational, and job training programs. In order to
bolster the capacity of community agencies to address these issues, the Attorney Ceneral's Office allocated
$200,000 of its Fiscal Year 2004 budget to eight community-based agencies and the Boston Police ,
Department for crime prevention initiatives in the SNI target area. Additionally, with $166,667 in
Byrne Memorial Grant funds from the Executive Office of Public Safety and an equal amount from
partners for the required hard-cash march, the SNI Division and Dorchester SNI partners implemented
the second year of the Dorcliester YoutLi and Family /^ra/(rf described in the "B)'rne Memorial Grants'
section later in this report.
In a cross-bureau initiative, the SNI Division worked with the Office of the Attorney General's
Mediation Services Division to implement Youth Mediating Solutions in the Dorchester SNI (as well as
in the Brockton and Grove Hall SNls). Youth Mediating Solutions was funded by a Byrne Memorial
Grant from the Executive Office of Ptiblic Safety and was a community-based peer mediation program
based on the Office's school-based SCORED [irogram. After a competitive REP process, the Eeen Center
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CRIMINAL BliF<i;AU SAI'L- NEK.HBORHOOD INITIATIVL DIVISION
;u St. I'crcrs, a Dorchester SNI partner ageiio', was selected to be tlie siib-grantce. horn adult coordinators
and 19 teens were trained as mediators tlirotigli this project.
GROVF. H.Al 1 SNI
hi October 2003. the C^itove Hall Sate Neighborhood Initiative began its eighth year as an officially
recognized Weed and Seed site as designated by the Department of Justice, Executive Office for Weed
and Seed. At that time, the Department of Justice, through the Attorney (lenerals Office, awarded
$225,000 to the (itove Hall SNI/Roston Weed and Seed Site to support its activities centered on the
toiu core Weed and Seed [principles; ( 1 ) Law F.nhircement; (2) Commiuiit}' Policing; (3) Neighborhood
Restoration; and (4) Prevention, Intervention, and Treatment. The Attorne)' General sub-contracts all
Weed and Seed funds to the Boston Police Department and other community-based agencies serving
the neighborhood. Also this fiscal \'ear, on behalf of the Grove Hall SNI/Boston Weed and Seed Site,
the Attorney General's Office applied for and was awarded an additional $100,000. These fimds
originate from HUD, are administered through the Department of Justice, and are designated to address
violent crime and i.lrugs in housing that is federally assisted. Ihe Grove Hall SNI/Boston Weed and
Seed Site is earmarking these funds to pay for increased law enforcement and coordination activities
and communit)' organizing and outreach to engage residents in improving public safet)' at several
multi-iniit housing units that are locations for some the most challenging criminal activity in the target
area.
Each year the Grove Hall SNI/Boston Weed and Seed Sire holds seven Coordinating ('oimcil
meetings and five meetings in the commiuiiry that are attended by dozens of community residents in
addition to representatives from law enforcement, government agencies, courts, service providers, and
faith-based organizations.
ORANGE SNI
Ihe Orange SNI is a collaboiation of the Attorney (ienerals Office and the Northwestern District
Attorneys Office, with the lown of Orange, the Orange Police Department, communit\' residents,
educators, government agencies, and service providers. The Orange SNI Advisor)' Council meets
monthly and this year continued working toward identifying priorit)' public safety and qualit)'-of-life
issues. Among this fiscal years activities, several Orange SNI partners, including the Office of the
Attorney General, joined forces to sponsor two educational workshops: (Da workshop on Elder
Protection issues for area seniors and local service providers, and (2) an educational workshop for
service providers on the sex offender registr)'. The Assistant Attorney Genera! assigned to the Orange
District Court prosecutes criminal cases occurring in the Town of Orange and offenses committed by
Orange residents in other towns in the courts jurisdiction. Her caseload primarily involves offenses
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CRIMINAL BUREAU SAFE NtlGI IBORHOOD INITIATIVE DIVISION
including domestic violence and other assaultive conduct, breaking and entering, and substance abuse
involving both alcohol and narcotics.
TAUNTON SNI
The Taunton SNI continues to focus on law enforcement, prevention, and neighborhood restoration
through the activities of its sub-committees and collateral activities (i.e., Criminal Justice, Treatment
and Prevention, Education, Neighborhood, Crisis Inter\'ention Team, and a Communit}' Crisis Spiritual
Care Response Team). Dining Fiscal Year 2004, the laiuiton SNI focused on escalating violence at the
Fairfax Cardens housing development, with each subcommittee developing a 12-month plan to address
the issues at the development. The Cit\' of Taunton plan's the primary leadership role for the Taunton
SNI. In addition to participating on the SNI Advisory Council, the SNI Division continued to facilitate
the collaboration of the Attorney General s Office with the City of Taunton and Pro-Home, Inc. on the
rehabilitation of a previously abandoned single-famil)' home on Highland Street. Rehabilitation oi the
propert)' was completed during Fiscal Year 2002, and in August 2003, a lottery was held to select a
prospective home-buyer from among a group of qualified applicants. During this fiscd year, the propert)'
was sold below cost to the selected tamily.
LAWRENCE AND METHUEN WEED AND SEED SITES
SNI program staff represent the Attorne\' Cjeneral on the steering committees of both the Lawrence
and Methuen Weed and Seed sites, each in its third year as an ofllcially recognized Weed and Seed site
as designated by the U.S. Department of Justice, Executive Office for Weed and Seed. Additionally,
the Office of the Attorney General supports the Lawrence and Methuen Weed & Seed efforts through
the provision of the Liiwrencc/Methuen Arlington Safe Neighborhood Initiative Communit)' Prosecutor -^ls
described in the '■B)'rne Memorial Grants" section later in this report.
SNI lOBS FOR YOUTH
One of the major SNI Division efforts aimed at prevention and intervention is the SNI JOBS FOR
YOLJTH Program. The program, which started in 1996, has grown from employing 2.3 youth in five
communities in that year to employing more than 80 young people in 1 2 communities throughout the
Commonwealth in Fi.scal Year 2004. In Fiscal Year 2004, the SNI Division expanded the JC)BS FOR
YOUTH program to include the communities of Lawrence, Methuen, and Orange, all of which have
SNI or Weed &: Seed collaborations in place. The program was advertised locally in each comnuuiit\'
and awardees were selected after a competitive RFP process. All JOBS FOR YOUTH sites offer job
opportunities throughout the school year, as well as a variety of workshops and enrichment activities
such as mock interviews, resume writing, and commimity ser\'ice projects. Each site is briefly described
below.
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CRIMINAL BL^RLAU SAFE NLICtlBORHOO0 INITIATIVE DIVISION
• Boston: I'is^htLcn youth tiDin thctircne H.ill and Dorclicstci SNI target areas were cmplincd
through tlic ( "ity of Bostons Clenters for Youth and ^anliHcs. The goal is to provide emplo) ineiit
opportunities, hands-on training, safe havens, and aduh support. Partnering with local businesses
and agencies, Boston Centers for Youth and Families placed young people in a variet)' of positions,
enabling them to learn skills related to entrepreneurship, leadership, and civic duty. Placements
included local comininiir}' centers, private businesses, and neighborhood social services agencies.
• Brockton: The Old C^olony YMCIA in Brockton just completed its eighth year as a JC^BS
FOR YOL) IH site. I'hc program serves teens in the Brockton area who reside in the SNI
target area and are enrolled in school or another educational program. The program's goal is to
provide job opportmiities, educational trainings, and recreational activities. Ihis fiscal year the
three teens, ages 16 to 17, worked at an aher-school communit^■ center.
• Chelsea: This year marked the City of Chelsea's ninth year as a JOBS FOR YOU'FH site.
In addition to emplo)'ment, the program offers opportunities for recreational team-building
and for helping the youth develop skills enabling them to choo.se challenging careers. This
fiscal year, the program provided positions for four Chelsea teens at several area businesses and
city agencies, including the Chelsea Public Library and Chelsea Cable TA'. The teens also
worked on a communit)' service project in which they researched Chelsea's fem.ile historical
figures as part of a Library exhibit.
• Holyoke: Holyoke's JOBS FOR YOUTFI program is administeied by the Teen Resource
Project, which serves youth from low-income neighborhoods, particularly in downtown Holyoke.
This program reinforces literacy skills, education, and responsible work behavior. Over the
course of the fiscal )'ear, fl\e )'outh, ages 13 to 15, assisted as readers and mentors, and read to
younger children at sites including famil)' shelters and after-school programs.
• Lawrence: The Lawrence JOBS FOR YOLITH program is administered by Lawrence
Community Works, Inc. Five youth, ages 16 to 22, ser\'ed a.s assistant instructors at after-
school programs with younger children. Lawrence Community Works, Inc. partnered with
the locil Workforce Investmeiu Board to offer a comprehensive job training curriculum and a
summer emplo\ment recruitment fair to its program participants.
• Lynn: Lynn's program is administered b\- the City of Lynn's Office of Economic and
Communit)' Development and serves disadvantaged and at-risk youth. During this fiscal year,
the program employed .seven teens who worked in various positions at after-school programs
and community arts programs.
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CRIMINAL BUREAU SAF E NEIGHBORHOOD INITIATIVE DIVISION
• Methuen: Five youth, ages 14 to 16, participated in tiie Metiiueii JOBS FOR YOUTH
program. All the teens are residents of the Methuen Weed & Seed target area and wotked at
the Methuen Arhngton Neighboilrood, Inc., whicli is considered the sale haven for the NX'eed
& Seed site. The teens provided after-school homework assistance and activities and also received
more than 40 hours of computer and job skills training.
• New Bedford: Ten at-risk youth, ages 1 6 to 2 1 , from 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 h)r youth to become employed and to continue
tlieir education. Internship placements include local businesses, coiuthouses, colleges, social
service agencies, and the Cir\' of New Bedford.
• Orange: The Orange JOBS FOR YOUTH program was developed through a collaboration
among the Town of Orange, the Franldin/Hampshire Career Center, the Department of Social
Services, and several community organizations. The Career Centet manages the program and
places DSS-involved youth residing in the Town ot Orange at work sites in town agencies and
local nonprofits. Program participants also participate in job training and academic support
sessions. In this fiscal year, 1 1 youth participated in the ptogram.
• Springfield: The Springfield SNI JOBS FOR YOUTH program is administered through
the Springfield Southwest Community Health Center and serves youth from low-income
families. The program provides youth with opportunities to inctease their employability, sell-
esteem, and knowledge and skills in the area of health promotion. Five }'outh, ages 13 to 19,
were employed as Youth Health Liaisons during this fiscal year, i'hey participated in delivering
he;ilth education information, including violence prevention, to other youth at local community
centers, and assisted with MassHealth and Health Center enrollment.
• Taunton: Five youth, ages 16 to 18, were placed through the Tiunton Department of
Human Services during this fiscal year. The youth were assigned to various agencies, including
the Boys and (lirls Club of Taimton, the City of I'aunton's Law Department, and the Taunton
Department of Human Services. The program's goal is to provide employment and educational
opportunities to youth to build skills and future employment capability.
• Worcester: The JOBS FOR YOUTH program in Worcester, run by the YMCA of Creater
Worcester, scr\'cs at-risk youth in the Worcester area. Eighteen youth, ages 1 5 to 1 7, participated
during the fisciil year and were emplo)'cd as computer technical assistants, ofilce assistants,
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( RIMINALBL'REAU SAI-lf NEIGHBORHOOD INITIATIVE DIVISION
farm assistants, and medical laboratory assistants, i he participants also completed an eight-
week emplo)'ment training prograni and pertormed 100 lioius ol si)hinteer work.
On May 5, 2004, apfiroximately 75 yoiitli, program coordinators, and emploxers from all 12 SNI
JOBS FOR YOUTH sites attended a recognition event at the Attorney General's Office. The purpose
of the event was to provide program participants the opportunity ut meet teens from other sites as well
as to be recognized b\' the Attorne)' General's Office for their achievements. A program coordinator, an
employer, and a participating youth each highlighted the value of the SNI JOBS FOR YOUTH program
in giving young people the chance to develop job skills and work experience. The Attorne\' General's
First Assistant made brief remarks and then awarded certificates ro each ol the partici[iants.
BYRNE MEMORIAL GRAN IS
• Dorchester SNI Youth and Family Project: Fiscal Year 2004 marked the second \ear ol the
Dorchester Youth and Family Project, which complemented the ongoing efforts of the Dorchester
SNI b)' focusing services on the diverse \outh in the SNI target area. Funding supported a
variety ot programming to coordinate enrichment and recreational activities for youth.
Additionally, Byrne funding also supported training for police officers on issues related to child
witnesses and violence and expanding therapeutic resources for adolescent witnesses to violence.
Ihe sub-grantees contributed the required 50% hard-cash matching hmds for this project.
• Lawrence/ Me thuen Arlington Safe Neighborhood Initiative Community Prosecutor: In
December 2003, an Assistant Attorney General was assigned to the Essex County District
Attorneys Office to provide a district court community prosecution component to Lawrence
and Methuen Weed and Seed initiatives. The SNI Community Prosecutor maintains a caseload
consisting primarily of narcotics and priorit)' quality-of-life offenses arising from the targeted
Arlington neighborhood that spans the cities of Lawrence and Methuen. The prosecutor also
seeks to improve coordination and communication between law enforcement and the communit)'
by regularly attending relevant public safety and commimity meetings in both cities. The
Office of the Attorney General contributed the required 50% hard-cash matching funds for
this project.
• SNI Community Re-Entry Project: The Re-Entiy Project began its third year of handing
diuing Fiscal Year 2004 and is integrated with the efforts of the Dorchester and Grove Hall
SNIs. There are two project components: (I) the Cjro\e Hall component focuses on juvenile
offenders ages 14-21 returning to the Grove Hall neighborhood upon release from custod)' in
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CRIMINAL BUREAU SAF E NE.IGHBORHOOD INITIATIVE DIVISION
a Department of Youth Services secure treatment facility; and (2) the Bowdoin-Ceneva
component focuses on offenders ages 17 to 24 returning to the Bowdoin-Geneva neighborhood
following a period of incarceration at the Sullolk County House of Correction. Both components
utilize an enhanced case-management model to provide the necessary assistance for participants
to successfully return to their communities. Re-entry coordinators for each component manage
a caseload of approximately 20 to 30 offenders over the year. The principal partners coordinating
with the Office of the Attorney General on the Grove Hall component are: The Department of
Youth Services, Roxbury Youthworks, Inc., the Boston Police Department, and the Suffolk
Count}' District Attorney's Office. The principal partners coordinating with the Office of the
Attorney General on the Bowdoin-Geneva component are: the Suffolk County Sheriff's
Department, Community Resources for Justice, Inc., the Boston Police Department, and the
Dorchester District Court Probation Department. The sub-grantees and the Boston Police
Department provided the required 50% hard-cash matching funds for this project.
• Youth Empowerment Skills (YES) Project: The YES Project was initiated in the fall of
2000 in response to a need for after-school and violence prevention programming as identified
by the Dorchester Safe Neighborhood Initiative. The Project was scheduled to end in September
2003; however, utilizing unexpended funds permitted the YES Project Coordinator to continue
through December 2003. The YES Project established a partnership between the Office of the
Attorney General and the Colonel Daniel Marr Boys and Girls Club/Paul R. McLaughlin
Youth Center in Dorchester. The Project aimed to provide teens with supervised after-school
activities that offered meaningful life skills education to help youth overcome the negative
influences that can lead to school hiilure, substance abuse, court involvement, or crime
victimization. The YES Project also provided training and educational programming for
McLaughlin Center staff A YES Project Curriculum Mamicil v/as one of the final products
developed in connection with the Project. The manual outlines many ot the programs offered
during the YES Project, thereby facilitating other youth-serving programs to replicate activities
and workshops.
The Attorney General's Office distributed the manual to youth-ser\'ing agencies across the
Commonwealth.
^X'Tlile the formal YES Project concluded in December, the Office of the Attorney General maintained
its commitment to the McLaughlin Centet throughout Fiscal Year 2004. More than "iO volunteers
from the Attorney General's Office participated in club activities, tor example: ( I ) Weekly one-on-one
academic tutoring for approximately 15 \'outh; (2) A workshop for peer leaders on conflict resolution
and mediation skills; (3) A college preparation program including college alumni panels, application
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CRIMINAL BURLAU SAFE NEIGHBORHOOD INITIATIVE DIVISION
worksliops, financial aid sessions, college tours, and essay-writing workshops; and (4) A holiday toy
drive.
A major focus of rhe VF.S Project during its fuial )'car of Byrne fLinding was developing and lllniing
UncLrstiUuling Violence, a film created to help yoiuh explore the underl\'ing causes and coiisec]uences of
violence. Tiie film (in DVD format) was developed in collaboration with the Gang Unit of the Suffolk
County District Attorneys Office and The Mirror Project. A facilitators guide was also developed in
collaboration with the District Attorney's Office. The DVD and guide are available to youth programs
throughout the ("omnionwealih.
The Office of the Atiorney Cleneral provided the required 50% hard-cash matching funds for the
YES Project.
OUTREACH, EDUCATION, AND TRAINING
The philosophy of the SNI is predicated on partnering with community stakeholders to enhance
public safety and quality of life for neighborhoods. As such, all SNI staff regularly participate in formal
and informal outreach activities to solidif}- existing working relationships as well as to build new ones.
Moreover, SNI staff ser\'e as resources and provide technical assistance and training both formally and
informally to community partners. Many of the SNI Division's outreach, education, and training
activities are described in the previous sections of this report.
97
GOVERNMENT BUREAU
Administrative Law Division
Trial Division
GOVERNMENT BURLAL)
Government Bureau
The CjovcrniiKnt Buivaii proN'idcs rcprcsciuation for tlic CDiniiionwcaltli and its agencies and
officials in ail npes of civil litigation, and for eniplo\'ees of the C\)inmonwealth with respect to certain
civil claims made against them resulting from the performance of their duties. Ihe bureau also provides
general advice and consultation to officials with respect to legal issues arising in connection with their
official functions, pariicularl)' in instances where such advance consultation may serve to prc\ent
iinnece,ssar\' liiigation. As in previous years, the bureau in Fiscal Year 2004, coiuiiuied its efforts to
develop and maintain close working relationships with agency counsel liy providing 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 Year 2004, several attorneys were assigned permanently to work in both the Administrative Law
and Irial Di\isions. A sampling of ca.ses 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 caies were handled by teams assigned to multiple divisions.
Both divisions initiated affirmative litigation on behalf of state agencies and the Commonwealth and
submitted briefs aminn curiae in cases presenting issues of law affecting the (Commonwealth's interests.
1 he Administrative Law Division defends suits concerning the legality of governmental operations,
particularly those seeking injunctive or declaratory relief. 1 he division also is 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 Massachu.setts Constitution to determine whether such questions are of
the t\'pe that may lawfully appear on the ballot.
The Irial 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 ;ilso
reviews certain contracts, leases, bonds, and various conveyancing documents submitted by state agencies
for approval as to form.
During Fiscal Year 2004, the Government Bureau included the following staff members: Stephanie
Lovell and then David Kerrigan, Chief; Sherrie Costa; Peter Sacks; and Ernest Sarason. Staff members
assigned to particular divisions within the Government Bureau are listed behnv.
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GOVERNMENT BUREAU
AFFIRMATIVK 1 ri'lCATION
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 Generals
priorities; and has a significant!)' higii monetar\' value or raises legal or polic)' issues ol concern to the
public and the Commonwealth. The Government Bureau maintained an active docket of affirmative
litigation in Fiscal Year 2004, to protect the public interest and the interests of its state agency clients.
Fiighlights of this affirmative litigation were as follows:
• Attorney General v. Second Chance, Inc. (Suffolk Superior Court) The Attorney General
sued the manufacturer of defective bullet-proof vests sold to Massachu.setts law enforcement
personnel from 1 999 to 2003. It is estimated that more than 4,000 of these vests were sold in
Massachusetts. The suit seeks to recover the replacement cost of the vests and other civil
damages. Discovery is proceeding.
• Commonwealth v. Dolphin Forwarding, Inc. and Mary M. White (Suffolk Superior
Court) The Attorney General continued to press a suit on behalf of the state Department of
Education against a storage company and its owner for allowing SI. 6 million of food, owned
by the Department and local school districts, to become contaminated. Fhe United States
Department of Agriculture had donated the food to the department for school lunch programs.
• Commonwealth v. Eligia Ratchell (Suffolk Superior Court) The Attorney General continued
to press this suit on behalf of the State Board of Retirement to recover $28,600 mistakenly
overpaid to a former state employee. The Court granted a restraining order on assets, and
attachments on real property, for the amount in controversy.
• Griffin v. Heck (Suffolk Superior Court) in this ongoing matter, a former state employee
filed a lawsuit against the owner of the office building where she had alleged!)' become ill. On
behalf of the State Board of Retirement, the Attorney General intervened and continues to
press a claim for recoupment of some of the disability retirement benefits previously paid to the
plaintiff
• Commonwealth and City of Eiasthampton v. William Chicoine (Hampshire Superior Couit)
The Attorney General, on behalf of the Department of Agriculture, continued to press a suit to
enforce the terms of an Agricultural Preservation Restriction (APR). I'hedefenilanr liad allegedly
violated the APR by subdividing the subject parcel into two lots of property.
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GOVERNMENT BUREAU ADMINISTRATIVE LAW OIVISION
• Commonwealth v. Young Dimensions Day Care (Suffolk Superior C'ourt) On luh.ilf of
the Office ot Cihild (^are Services (OCX'S), the Attorney Ceneral recovered nearly $1 iiiillion
from a day care provider tiiat allegedly had misappropriated state contract funds. Nearly
$!()(), 000 worth of used vehicles and office equipment were donated to child-serving charities.
• Commonwealth v. Anderson Nichols (Worcester Superior Court) Defendant is an
architectural firm that alleged!)' negligently designed a roof for the Glavin Regional Center in
Shrewsbury. The matter was settled with the defendant agreeing to pay $175,000.
• Commonwealth V. Bettuchi (Land Court) The Commonwealth filed a complaint to recover
possession ot state propert)' and to remove a shed erected on state land. The Commonwealth
was successful and the shed was removed.
Government Bureau attoriie\s also litigated cases through the Attorney Generals 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" indifkrcnce, have created
a health, safety, and crime hazard lor the communir\'. The Attorney General assists the community
groups by petitioning the appropriate court lor an order that permits the community group to appoint
their receiver and take charge of the blighted propert}', 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 lour principal lunctions: (1) to delend lawsuits against state
officials and agencies concerning the validin' ol statutes and regulations and the legidity ol governmental
operations, particularly those seeking injunctive or declarator)' relief; (2) to defend suits for judicial
review of adjudicator)' decisions of state administrative agencies; (3) to undertake a legal review of
newly enacted town by-laws; and (4) to prepare legal opinions for constitutional officers, heads of
agencies, and certain other officials concerning issues that arise from the performance ol their official
duties. During Fiscal Year 2004, significant events occurred in each ol these areas, as set forth below.
During Fiscal Year 2004, the Administrative Law Division included the following staff members:
William Porter, Division Chief; James Arguin; Luna Bacon; Christine Bail)'; Annapurna Balakrishna;
Dena Barisano; Thomas Barnico; John Bowman; Erin Browne; Romeo Camba; Judith Cassino; Victoria
Cole; Julie Collins; Pierce Cra)'; Daniel Hammond; John Hitt; Diana Leeman; Quinette Littleton;
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GOVErtNMEN'r BUREAU ADMINISTRATIVE LAW DIVISION
Beinadette Lovell; Maite Macdonald; Pauline O'Brien; Susan Paulson; Anthony Penski; William Porter;
Ann Preston; (Christopher Quaye; Robert (^uinan; William FWnolds; Juliana Rice; Deirdre Ronev;
Adam Simms; Cinny Sinkel; Am)' Spector; Steven Thomas; Rami Vanegas; Jane Willoughb}'; and
Sheila York.
SIGNIFICANT CASE SUMMARIES
Highlights oi some oi the most significant cases handled by the Administrative Law Division in
Fiscal Year 2004, grouped b}' subject matter, arc as follows:
CHILDREN AND FAMILIES
• Covell V. Department of Social Services (Supreme Judicial Court) The court set aside the
Appeals Courts decision, reversing the department's conclusion that there was reasonable cause
to support dlegations of sexual abuse ot a teenage girl by her stepfather. The court held that:
( I ) the department was ret]uired to have only "reasonable cause " to support the report of sexual
abuse; (2) the stephithers hiilure to submit a transcript of the administrative hearing precluded
him from challenging the sufficiency of the evidence; and (3) even it the stepfather was not
precluded from challenging the sufficiency of the evidence, the hearing officer had a sound
basis for affirming the support determination.
• Lindsay v. Department of Social Services (Supreme Judicial Court) In this case arising
from a supported report ot neglect against a child-care provider tor leaving a toddler alone in a
locked car tor severiil hours in the summer, the court rejected the provider's argument that a
determination of "neglect " must be predicated upon a finding of actual injury to the child, and
affirmed the department's conclusion that reasonable cause existed to believe that the provider
had neglected the toddler, even though the toddler appeared to have suffered no ph}'sical or
emotional injury as a result of the incident.
• Department of Revenue v. Mason M. (Supreme Judicial Court) The Court reversed an
order of dismissiil by the trial court and reinstated the department's complaint to increase the
defendant-father's child support obligation. The Court concluded that the father's obligations
to support the two children that were the product ot his intact marriage did not minimize his
obligation to the non-marital child that was the subject of the dc|"iartment"s complaint.
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GOVERNMENT BUREAU ADMINISTRATIVE LAW DIVISION
• Adoption of Saul {Appeals C^oui t) In upliolJing a termination of parental rights, the court
held that notations in the niodiers medical recortls of her psychiatric diagnosis were not privileged
ps\chotherapist-patienr communications.
• Adoption of Nancy {Appeals Court) Although the court agreed thai the a[ipellant-father
was an unfit parent, it reversed the Juvenile Courts decree, terminating his parental rights on
the grounds that termination was not in the best interest of the 1 1 -year-old child, who specifically
objected to being adopted, or ol her 10-year-old sister, who was in a residential placement and
not sutficienil}' stable to be a candidate for adoption in the foreseeable future.
• Adoption of Scott {Appeals Court) Hie court affirmed a trial court ruling that, once the
mothers parental rights were terminated b\- judicial decree, she lacked standing lo bring motions
concerning changes in her sons adoption plan.
CONSTlTUriONAL LAW
• Goodridge v. Department of Public Health {Supreme Judicial Court) Seven same-sex
couples challenged, on state statutory and constitutional grounds, the denial of their marriage
license applications. The court rejected the statutor)' challenge, but held, on state constitutional
equal protection and due process grounds, that there is no rational basis for excluding same-sex
couples from the benefits, protections, and obligations of civil marriage. The court stayed the
entry of judgment for 180 days to permit the Legislature to take such action as it might deem
appropriate in light of the opinion. 1 hree justices dissented.
• Largess v. Supreme ludicial Court {U.S. District Court and U.S. Court of Appeals, First
Circuit) Plaintiffs claimed that the Supreme Judicial Courts decision in Goodridge violated
the separation of powers and other provisions of the state constitution, and thus violated the
federal Constitutions guarantee of a "republican form of government." Plaintiffs' request for a
preliminar)' injunction against implementation of Goodridg e was denied, and plaintiffs appealed.
1 he First Circuit affirmed, holding that the republican form of government was intact because
the people of Massachusetts still retained ultimate control over all three branches of their
government, including through a constitutional amendnieiu process that was under way and
could alter the effect of Goodridg e in accordance with the people's wishes.
• Massachusetts Citizens for Marriage v. Secretary of the Commonwealth (Supreme Judicial
Court) Plaintiffs, as supporters of an initiative petition for a constitutional amendment
concerning marriage, argued that the Secretary was constitutionall)' required to transmit the
proposed amendment to the 2003 to 2004 Legislature for its action, as the second Legislature
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GOVERNMENT BUREAL^ ADMINISTRATIVE LAW DIVISION
to consider the proposed amendment, even though the 2001 to 2002 Legislatures joint session
had adjourned without voting on whether to approve the amendment. The court held that the
Secretary had no duty to transmit the proposed amendment to the 2003 to 2004 Legislature,
and that there vva.s no judicial remedy available for the inaction of the 2001 to 2002 Legislature.
• McGuirev. Reilly (U.S. District Court) The plaintiffs, who engage in "sidewdk counseling"
outside facilities where abortions are performed, challenged a state law that provides for a six-
foot "buffer zone" around persons entering reproductive health care facilities, within which
others ma\' not (without consent) enter "to engage in oral protest, education, or counseling."
In earlier proceedings, the First Circuit held that the law does not, on its fiice, violate the First
Amendment. On remand, the district court rejected the plaintiffs' claim that, as applied, the
law discriminates against the plaintiffs' viewpoint. The court held that the law's exemption for
clinic employees did not allow them to engage in preferential pro-choice advocaq', in view of a
limiting interpretation of the law advanced by the Attorney General and followed by local law
enforcement authorities.
ELECTIONS
• Wheatley v. Secretary of the Commonvyealth (Supreme Judicial Court) An unsuccessful
candidate for the state House of Representatives filed suit, alleging irregularities by local election
offici<ils. After the Superior Court ordered the Secretar}' to conduct a new election, the House,
in its constitutional role as "the judge of the returns, elections, and qualifications of its own
members," held a hearing and then voted to seat the victorious opposing candidate. The
Supreme Judicial Court held that the Secretar)' was entitled to relief from the order for a new
election, because the House's decision to seat the opposing candidate rendered moot the result
of any new election.
• Wyler v. Secretary of the Commonwealth (Supreme Judicial Court) Voters sought to
enjoin the holding of a special election to fill a vacanc}' created by a resignation from the state
Senate. Fhe Senate's order, calling the special election, was adopted before the effective date of
the resignation, and the special election coincided with a presidential primary in which one
party had an uncontested race for the partA's presidential nomination while the other part}' had
a hotly contested race. The Court held that the Senate had lawfulh' acted to c.ill a special
election to fill a vacancy certain to occur, where the election itself would not be held until after
the vacancy actually occurred, and that there was no proof that the timing of the special election,
to coincide with the presidential primary, would so unequally affect turnout as to violate the
state constitutional guarantee of an equ,il right to elect public officials.
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GOVERNMENT BL'REAU ADMINISTRATIVE LAW DIVISION
• Sholley v. Secretary of the Commonwealth (Appeals (xnut) State statute mandates that
candidates for state office disclose on their nomiiiaiion |\ipets their "residence, with street and
number thereof, if an\'." The court agreed with the Secretary that the statute recjuires candidates
to include on their nomination papers sufficient information to identif)' their city or town of
residence — not just their street name and house number.
• Boyette v. Secretary of the Commonwealth (U.S. District Court) The court granted the
Commonwealths motion for summaiy judgment in this action b\' the proponents cti an initiative
petition seeking to amend the state (Constitution to permit the state or political subdivisions to
provide financial assistance to students attending private schools, "regardless of any religious
affiliation or character of such institutions." In 1999, the Attorney Ceneral declined to certif)'
the petition because it addressed rwo subject areas excluded trom the state Constitution's initiative
process: the Anti-Aid Amendment and religious institutions. The court held that excluding
these subjects from direct popular lawmaking does not violate plaintiffs" rights under the federal
free speech, free exercise, or equal protection clauses.
EMPl.OVMHNT AND RE 11 REM EN I'
• Stonehill College vs. Massachusetts Commission Against Discrimination (Supreme judicial
Court) Partially overruling its decision in Lavelle v. MCAD , the court held that respondents
found by the Commission to have committed employment discrimination in violation of C.L.
c. 15 IB are entitled to judicial review of that decision under C.L. c. 30 A, but not to a jury trial.
The court also reaffirmed its decision in Palis v. Bu)'er Advertising , which held that Art. 1 5 of
the state Declaration of Rights guarantees a jut}' trial to plaintiffs that file sex discrimination
claims in the Superior Court pursuant to C.L. c. 151B, § 9.
• Boston Retirement Board v. Contributory Retirement Appeal Board (CRAB) and Public
Employee Retirement Administration Commission (PERAC ) (Supieme Judicial Couit) The
court agreed with PKRi^C^ and C'RAB that the Boston Retirement Board was required to recover
overpaid pension benefits that should have been offset against "earned income" in the form of
distribution of corporate profits to the retiree, a salaried shareholder-employee of the corporation.
The court affirmed PERACs interpretation of "earned income" to include such a distribution.
• Burns v. Civil Service Commission and Department ot Revenue (Appeals Court) The
court affirmed the Commissions decision refusing to vacate all provisional appointments to a
particular tax examiner position occurring during a certain period and refusing to appoint
plaintiff to one of the positions retroactively.
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GOVERNMENT BUREAl' ADMINISTRATIVE LAW DIVISION
• Pulsone and Leary v. PERAC (companion cases) (Appeals Court) Pulsone and Learv each
sought reinstatement from disablHty retirement, but failed to obtain imanimous reinstatement
recommendations from their respective medical panels. In Pulsone, the court upheld I'F.RACs
decision denying reinstatement, because Pulsone had sought reinstatement after PERAC had
promulgated its regulation explicitly requiring unanimity — a regulation that was ratified by
the Legislature. In Leary , the court reversed the decision denying reinstatement, because PERAC's
regulation requiring unanimity had not yet been promulgated.
• City of Boston v. Deputy Director of Employment & Training (Appeals Court) The
court reversed the grant ot unemployment benefits to a police officer who was fired for smoking
marijuana while under drug-related suspension. Ihe court held that the officer was barred
from receiving benefits because his discharge was "attributable to deliberate misconduct in
willful disregard of the employing unit's interest, or to a knowing violation of a reasonable and
imiformly enforced rule or polic)' of the employer."
EDUCATION AND HEALTH CARE
• Long Term Care Pharmacy Alliance v. Ferguson (LI.S. Court of Appeals, First Circuit)
The plaintiffs, pharmacies that serve nursing-home residents, sued the Division of Health Care
Finance and Policy, challenging regulations reducing certain Medicaid payments as contrary' to
federal Medicaid law. The District Court preliminarily enjoined implementation of the rate
cuts, but the First Circuit reversed, holding that the pharmacies had no private right of action
to enforce the so-called "equal access" provision of the federal Medicaid law. The First Circuit
further held that the procedural requirements for rate changes for "nursing facility services" did
not appi}' to the pharmacies.
• Boston Regional Medical Center, Inc. v. Division of Health Care Finance and Policy
(U.S. Court of Appeals, First Circuit) In this case of first impression, the court held that the
debtor hospital's $1.8 million in unpaid obligations to the Massachusetts Uncompensated Care
Pool were properly considered "excise taxes" and thus were entitled to priority treatment in the
underlying bankruptcy proceedings.
• Student No. 9 v. Board of Education (Supreme Judicial Court) The court upheld the
Board's requirement that seniors in the Class of 2003 and thereafter, demonstrate competenc)'
in math and Elnglish prior to graduating, most commonly by passing a written test administered
under the Massachusetts Comprehensive Assessment System (MCAS). 1 he court specifically
upheld the Board's authorit)' under the Education Reform Act to implement the graduation
requirement in phases, with English and math coming first. It iilso rejected a claim that the
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GOVERNMENT BL'REAU ADMINISTRATIVE LAW DIVISION
Board's substantial reliance upon the written MC^AS exam violated the Act's provision that the
Board use a "variety oi assessment instruments. "
• Centennial Healthcare Investment Corp. v. Commissioner of the Division of Medical
Assistance (DMA ) (Appeals Court) i'he Appeals ('ourt agreed that medieal providers do not
have standing to challenge the denial of their own patients' Medicaid eligibility. The Court
al.so affirmed some $50, ()()() in DMA-imposed sanctions for the appellants persistent refusal to
refund, as required by law, the difference between the higher fee paid by private-pay patients,
and the lower Medicaid fee th.ii a piovider is bound by law and contract to accept once patients
are declared Medicaid-eligible.
• Hancock V. Commissioner of Education (Suffolk Superior Court) After a lengthy trial, the
court recommended that the Supreme Judicial Court rule that the Commonwealth is Eiiling to
educate children in the public schools as required by Part II, c. 5, § 2 of the Massachusetts
Constitution, and order the state defendants to (1) determine the cost of implementing the
seven "curriculum frameworks"; (2) determine the cost of implementing measures to improve
local districts' effectiveness; and (3) implement funding and administrative changes resulting
from these determinations. The court recommended that the Supreme Judicial Court require
inclusion of special education, implementation of all seven curriculum frameworks, "adequate"
school facilities, and universal preschool for low-income three- and four-year-olds in the cost
determinations, and consider requiring the inclusion of other items such as teacher salary
increases, class size reduction, provisions for school libraries, and remedial [irograms.
SECURITIES
• Silvia V. Secretary of State, Securities Division (Appeals Court) The court upheld a Securities
Division ruling that the appellant (a lav\yer) had violated securities laws by selling unregistered
securities, by selling them without being licensed to do so, and by making material
mispresentations to buyers in connection with the sales. 1 he central substantive issue was
whether the instruments at issue were, in fict, "securities." In concluding that they were, the
court adopted the test set forth by the Supreme Court in Reves v. Ernst &.' Young .
TAXATION
• General Mills. Inc. v. Commissioner of Revenue (United States Supreme Court) The
Court denied General Mills' petition for a writ of certiorari to review a Supreme Judicial C'ourt
decision upholding the Commissioner's assessment of income tax on Talbots, Itic, a former
subsidiary of General Mills. General Mills alleged that the Commissioner had imposed an
extraterritorial tax in violation of the due process and commerce clauses.
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GOVERNMENT BUREAU ADMINISTRATIVE LAW DIVISION
• Peterson v. Commissioner of Revenue (Supreme judicial Court) The court held that the
mid-year effective date in a July 2002 act amending the capital gains tax statute, violates the
"uniformity" clause of the state Constitution. I'he court remanded the case to the single justice
to determine whether the legislature would have intended to impose the new tax rate beginning
on January 1, 2003, which would result in the loss to the Commonwealth of approximately
$250 million, or January 1, 2002, which would subject many taxpayers to additional tax.
• Alcoa. Inc. v. Commissioner of Revenue (Supreme Judicial Court) The court upheld a
corporate excise tax on Alcoa, rejecting its claim under federal law that it was immune from tax
because its activities in Massachusetts did not exceed the solicitation of sales.
• W.R. Grace &i Co. v. Commissioner of Revenue (Appeals Court) The court partially
granted the Commissioners appeal by vacating the decision of the Appellate Txx Board and
remanding the case for further findings on whethet W.R. Grace, and certain of its subsidiaries,
constituted a "unitary enterprise," such that the Commonwealth could tax W.R. Grace on
proceeds from the sale of those subsidiaries without engaging in impermissible taxation of
extraterritorially derived income. The court affirmed the Board's decision that W.R. Grace,
and certain other of its subsidiaries, did not constitute a "unitary enterprise," and so the
Commonwealth could not tax proceeds from the sale of those subsidiaries.
• GE Capital Mortgage Services. Inc. v. Estate of Hilda Lug o {VS. District Court) The
court dismissed the Commonwealth from this interpleader action, which was removed by the
United States and involves claims by the IRS and the state Department of Revenue to surplus
fiinds from the foreclosure of a mortgage and the sale of real estate. The court declined to
dismiss the action in its entirety, rejecting the Commonwealth's argument that it is an
indispensable partA' whose joinder is not possible because of its sovereign immunity from suit.
PUBLIC SAFETY
• Modified Motorcycle Ass'n v. Commonwealth (Appeals Court) The court rejected a suit
by a motorcyclists' association contending that the Commonwealth's motorcycle-helmet law
size specifications were preempted by a federal regulation setting forth different specifications.
The court reasoned that helmets complying with the feder;il regulation would also compl\-
with state law.
INSURANCE
• Tierney V. John Hancock Mutual Life Insurance Co. and Division of Insurance (Appeals
Court, L'.S. Supreme C^ourt) The Appeals (jiurt concluded that the Commissioner of insurance
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GOVERNMENT BUREAL' ADMINISTRATIVE LAW DIVISION
had properly exercised her discretion in approvins^ joliii Hancock's plan to convert From a
privately-held nuiiual insurance company to a piiblicly-iraded stock company. In so doing, the
court atfirmed the Commissioner's determination that members received appropriate
compensation for their membership interests and were not entitled to a distribution of assets,
and it concluded that in doing so the Commissioner was free to accept the company's valuation.
I'he Supreme C\)urt denied certiorari.
• Given V. Commerce Insurance Co. (Supreme judicial Court) The court held that an insured,
filing an auto-body damage claim under a standard Ma.ssachiisetts auto insm ance polic)', akliough
entitled to recover the cost oi repairs, was not also entitled to recover the "'inherent diminished
value " ot her car, i.e., the decline in the car's resale value that resulted from its having been in an
accident. The court also found no procedure problems with an advisory opinion written by
the general counsel of the Division of Insurance at the request of Commerce Insurance, and
indeed reached the same result as that advisory opinion. The Attorney General filed an amicus
curiae brief on behalf ol the Commissioner ol Insurance, advocating the result that the court
ultimately reached.
UTILITIES AND TELECOMMUNICATIONS
• Nextel V. Town of Hanson (U.S. District Court) The court affirmed, under the Federal
Felecommunications Act, a decision of the State Building Code Appeals Board denying a building
permit lor a roof-mounted cell antenna based on the Board's reasonable interpretation of state
law regarding whether the structure was a "tower ' or an "anteima. '
• Global NAPs. Inc. v. Department of Telecommunications and Energ\^ (DTE) and Verizon
(U.S. District Court) The court affumed the DTE's decision that Globiil NAPs, having reached
an arbitrated agreement with Verizon regarding charges for use ofVerizon's telecommunications
network, could not "opt in " to a more favorable agreement between Verizon and another carrier.
• MCI &: Global NAPs, Inc. v. Department of Telecommunications and Energ y (Supreme
judicial Court) 1 he court affirmed a series of se\en DIE decisions holding, in substance, that
dial-up Internet calls placed to an Internet service prosider were not "local traffic," within the
meaning of the Federal Telecommunications Act of 1996, and thus that a contract between the
appellants and V'crizon of Massachusetts did not require Verizon to compensate the appellants
for completing such calls. In so deciding, the court declined to follow the U.S. Court of
Appeals for the District of Columbia (jrcuit, and a majority of state cotuts, to opine on the
question.
Ill
COVEFiNMENT BUREAL^ ADMINISTRATIVE LAW DIVISION
• Fitchburg Gas &C Electric Light Co. v. Department of Telecommunications and Energy
(Supreme Judicial C'ourt) 1 he court upheld the sr.irutoiy authority of DTP, to reccilA' a pubhc
urihts's 1 1-year overcharge oi its customers by ordering the utilit}' to refund the overcharge
over a comparable 1 1-year period through a reduction in future years' charges. The court
rejected the utility's argument that such a remedy would constitute impermissible retroactive
ratemaking.
• Franldin W. Olin College of Engineering v. Department of Telecommunications and
Energ ^^ (Supreme Judicial Court) The court affirmed a DTK decision declining to permit the
college, an electricity customer, to obtain electricity from another city. The Court ruled that
DTE could properly define the statutoty term "geographic area" to encompass the entire
municipality in which an electricity distribution company operates, and that DTE did not
abuse its discretion in declining to grant the customer an exception that would allow it to
purchase power from another company.
GOVERNMENT BENEFITS
• Wilson V. Commissioner of Transitional Assistance (Supreme Judicial Court) On appeal
from a preliminary injunction barring the Commissioner from reducing benefit payment levels
in the Emergency Aid to the Elderly, Disabled and Children (EAEDC) program, the court
vacated the injunction and affirmed the Commissioner's authority to implement the cost savings
measures he deemed necessary to keep the program's full-year spending within the existing
appropriation. The court held that, under the line item at issue, the Commissioner's sole
obligation was to provide the Legislature with advance notice of the benefit reduction, and that
the Commissioner need not first seek a supplemental appropriation to close the projected
deficit. The court noted that, although the hatdship to individual EAEDC recipients would be
severe, it did not outweigh the Commissioner's lawful action in attempting to control program
spending.
ENVIRONMENT
• Sierra Club v. Commissioner of the Department of Environmental Management (Supreme
Judicial Court) The court vacated a trial court order that had permanenth' enjoined the
Commissioner from allowing ski-trail development and trail work within the Wachusett
Mountain ski area. In doing so, the court: ( I) determined that the Commissioner's approval
was regulatory (not adjudicatory) in nature and thus was reviewed properly tor whether it had
a rational basis rather than whether substantial evidence supported it; (2) rejected the claim
that the Commissioner lacked authority to approve the ski-area expansion; and (3) concluded
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GOVERNMENT BUREAU ADMINISTRATIVE LAW DIVISION
that the C^onimissioncrs approval coiitoniicd with legal requirements and was neither arbitrary
nor capricioiKs.
lOriFRY
• Jacobs V. State Lottery Commission (Ap[ieals C^ourt) 1 he court rejected a lottery-ticket
purchasers claim that errors in advertising materials entitled him to a $4 million prize instead
of a $ 1 prize. The court concludetl that the language on the ticket, not the advertising materials,
was controlling, because the evidence did not show that the ticket purchaser had relietl on the
adxertising materials. I he court thus did not reach the issue oi whether erroneous advertising
materials actualh' relied upon bv a purchaser might have boiuid the C^ommission.
PROFESSIONAl. LICENSURE
• Ramirez V. Board of Registration in Medicine (Supreme ludicial C'ourt) The court held
that the petitioner was subject to reciprocal discipline in Massachusetts after he entered into a
consent discipline order with the Connecticut Department of Public Health. He did not
admit wrongdoing, but agreed not to contest certain factual allegations that, the court found,
would have constituted grounds for discipline in Massachusetts.
• Baldi V. Supreme ludicial Court for Suffolk County and Board of Bar Examiners (U.S.
District C^ourt) Ihe court dismissed a complaint to compel admission to the Massachusetts
bar, where plaintiff had passed the bar exam, but his application had not been forwarded to the
Supreme Judicial (^oiirt pending the Boards investigation into his character.
• Johnson v. Board of Bar Overseers (BBO ) (U.S. District Court) The court dismissed
plaintiff's challenge to an ongoing BBO disciplinary proceeding, citing the Younger abstention
doctrine, under which federal courts decline to interfere with certain state proceedings.
STATISICAL SUMMARY
During Fiscal Year 2004, the Administrative Law Division opened 1,185 cases, and closed 1,090
cases. At the close of the fiscal year, 1,712 cases were pending in the division. Cases handled by the
division resulted in 19 reported decisions of the Supreme Judicial Court, 13 reported decisions of the
Massachusetts Appeals (,ourt, four reported decisions of the United States Court of Appeals for the
First Circuit, and five reported decisions of the United States District Court for the District of
Massachusetts. In addition, division attorne)'s were involved in numerous cases in those courts and in
state triitl courts that resulted in unpublished decisions.
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GOVERNMENT BUREALi ADMINISTR.-\TIVE LAW DIVISION
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 th roughout the Commonwealth. By statute, the Attorney General is charged with tiie
review of town general by-laws (G.L. c. 40, § 52), town zoning b\'-laws (G.L. c. 40A, § 5), town
historical district by-laws (G.L. c. 4()C), and city and town Home Rule Charter amendments (G.L.
c. 43B).
During Fiscal Year 2004, the Municipal Law Unit included the following staff members: Robert
Ritchie, Director; Sandra Giordano; Kelli Gunagan; and Eva Wanat.
NX^ith 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 3'S 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.
During Fiscal Year 2004, the Municipal Law Unit reviewed (a) 708 general by-laws, of which 632
(89.3%) were approved, 40 (5.6%) were approved with partial deletion, four (0. 1%) were disapproved,
14 (2.0%) were returned with a finding that no action by the Attorney General was required by state
law, and 18 (2.5%) received cautions; (b) 929 zoning by-laws, of which 850 (91.5%)) were approved
(including all 178 that included zoning map amendments), 41 (4.4%0 were approved with parti;il
deletion, seven (0.1%) were disapproved, 1 1 (1.2%) were returned with a finding that no action by the
Attorney General was required by state law, and 19 (2%) received cautions; (c) 10 historic district by-
laws, of which all bur one were approved (90%); and (d) 1 5 charter amendments, of which all but two
were found to be consistent with state law (86.7%).
During Fiscal Year 2004, the authorit)' conferred b\' Chapter 299 of the Acts of 2000 was exercised
in 22 instances, a decrease of 43 from the previous year. In all instances, no objection was filed to the
Attorney General's waiver of minor procedural deficiencies.
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GOVERNMENT BUREAU ADMINISTRATIVE LAW DIVISION
Above and beyond what is required by statute, by ehoiee the Attorney (General has extended tlie
services and resomtes of his Municipal law Unit by providing, time permitting, volinitarv informal
review of proposed town by-law amendments and — even though not subject to review by the Attorney
General — proposed city ordinances. During Fiscal Year 2004, the unit continued to experience an
increase in the number of calls from local public officials and members of the general public, many of
which relate to anticipated changes in local laws and charters.
During Fiscal Year 2004, the iniit monitored a number of cases in litigation that mvolved miniicipal
law issues. Hven where the Attorne\' ( leneral ha.s initiallv elected not to intervene or otherwise participate
in SLich cases, the luiit monitors developments so that the Attorney (jeneral ma)' become involved if
warranted b)' developments in the case. At the close of Fiscal Year 2004, unit attorneys were monitoring
approximately 6S such matters, a slight increase over the previous year.
The most prevalent subjects of local regulation during Fiscal Year 2004, were by-laws regulating
affordable housing, telecommunications facilities, wetlands, open space, agricultiu;iJ uses and structures,
sexually oriented businesses, and motor scooters. Inclusionary zoning by-laws were more prevalent this
)'ear than previously.
Over time, unit personnel have gradu;illy increased the units 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. Unit personnel participated in dozens of outreach and educational events during
Fiscal 2003.
Fhe publications "Submitting By-laws to the Attorney Generals Office: A Guidebook for 'lown
Clerks and Planning Boards" and "The Guidebook for Adopting Zoning By-laws" were both completely
revised for the first time since 2000, and then presented and explained at the town clerks' conferences
and meetings. Unit personnel attended the Massachusetts Town ClerLs' conferences to hold classes
and to present and explain the necessity of the changes in the books used for submitting the by-law
packets. Unit personnel also actively participated in events held by the City Solicitors and Town
Counsel Association in order to exchange perspectives on issues of mutual interest and concern.
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
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GOVERNMENT BUREAU TRIAL DIVISION
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 are 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 that 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 pending or
likely 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 secretar)' believes the question
raised is one that requires resolution by the Attorney (General, the secretary then makes or approves the
opinion recjuest. During Fiscal Year 2004, no formal opinions were issued. During the same time
period, the Attorney General issued 28 letters providing informal advice, providing a certification or
designation to a federal agency in connection with the Commonwealths participation in a federal
program, or declining to give advice.
TRIAL DIVISION
The Trial Division is responsible for defending the Conmionwealth in civil cases brought against
the Commonwealth and its departments, agencies, and employees in a variet)' of actions primarily
consisting of tort, eminent domain, employment, contract, civil rights, and land registration actions.
Members of the division anah'ze each case at the outset to see if the case should be resolved through
settlement, or in favor of the Commonwealth by dispositive morion. If not, the case proceeds through
the discovery phase, and the division continues to try to resolve the case through settlement or bv filing
a summary judgment motion. Alternative dispute resolution approaches are always considered and are
utilized at any appropriate stage of the case. The experience of the Trial Division in representing the
Commonwealth in civil lawsuits is consistent with private practitioners in this area of law in that the
majority of cases resolve prior to a trial. If the case goes to trial, the Trial Division aggressively defends
the Commonwealth and its employees. The Trial Division also handles any appeals arising from its
cases, whether brought in state or federal court. Several appeal decisions are highlighted below. The
Trial Division has enjoyed impressive results by defending the Commonwealth and its employees in its
trials, resulting in millions of dollars in savings to the Commonwealth and the public.
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i.OVERNMENTBL'REAU TRIAL DIVISION
riic tollowini; peisonntl served in the liial Division (.luring fiscal Year 2004: Rosemary (, on nolly.
Chief; Krnest Sarason, Managing Arrorney and Affirmative 1 itigatinn Coordinator; Asha Awad; Jason
Barshak; Matthew Bergc; Oispin Birnbatim; John Bowen; Raiijana Burke; Joseph Calkinan; Stephen
Clark; Renee Coleman; Cathleen Collins; Stephen Dick; Thomas DiCaiigi; Janet Elwell; Lisa Fauth;
Susan Caeta; Norine Ciaimon; Salvatore Ciodandino; Franco CoBoiirne; Mary Hall; Sarah Joss; Michelle
Kaczynski; Ronald Kehoe; Jennifer Lespinasse; Lucinda MacDonald; Howard Meshnick; Janet Nolan;
Ann Marie Noonan; Sally Ogine-Noel; AJicia Oladayiye; Mary O'Neil; Maite Parsi; Fran Riggio; Peter
Russell; A. Tom Smith; David Stanhill; Mark Sutliff; James Sweeney; Marini Torres- Ben son; T'heresa
Walsh; Doris Wliite; Jessica Wielgus; Meredith Wilson; Nathanael Wright; and (Charles Wrzanski.
rORTS
Most of the trials conducted by members of the Trial Division involve claims that the Commonwealth
or one of its employees breached a duty of care owed to a member of the public, resulting in injury or
propcrt}' damage. The following cases are typical of the tort cases tried by members of the division
dLiring the course ot the year.
• Hernandez v. Office of the Medical Examiner (Suffolk Superior Court) The plaintiff
alleged that the Commonwealths employee negligently drove through a red light, causing an
auto accident. The Commonwealth argued that it was, in fact, the plaintiff who had driven
through a red light. The jury returned a verdict for the Commonwealth after a three-day trial.
• Di Benedetto v. Commonwealth (Suffolk Superior Court) The plaintiff claimed that a
Department oi C Correction (DOC) employee caused an automobile accident that resulted in
plaintiff sustaining personal injuries and property damage to her car. After a two-day trial, the
jury found no negligence on the part of the DOC employee, and returned a verdict for the
Commonwealth.
• Rjce V. Metropolitan District Commission, Sail Boston 2000. and Conventures (Suffolk
Superior Court) Rice slipped and tell on the rampart on top of Fort Independence on Castle
Island while watching the Parade of Sail during Sail Boston 2000. The Commonwealth moved
for summar\- judgment based upon the recreational use statute, which the court denied. After
a three-da\- trial, the jury returned a verdict lor the Commonwealth.
• Gibau & Ogara V. Commonwealth of Mass. (Suffolk Superior Court) The plaintiffs claimed
that they were injured as a result of an accident with a state police cruiser. The central di.spute
at trial was the amount of damages: plaintiffs' pretrial demand was 538,000, but after trial the
jur\- returned a verdict of $33,700.
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GOVERNMENT BUREAU TRIAL DIVISION
• Taylor v. Commonwealth (Suffolk Superior Court) The plaintiff, while being held in a
Suffolk jail cell awaiting arraignment, caught his fingers in the sliding cell door. Plaintiff claimed
tliat court employees tailed to take adequate precautions when closing the cell door and to
provide him with an adequate warning. After a three-day trial, the jury found for the plaintiff
and awarded him $20,000 in damages.
• Henderson v. Executive Office of Health and Human Services (Suffolk Superior Court) A
pedestrian claimed that a van driven b)' a Department of Mental Retardation worker struck
him and knocked him down, resulting in a long convalescence, over $54,000 in medical bills,
substantial pain and suttering, and permanent injiuy. The jury awarded the plaintiff $ 1 60,000
in damages, but also found the plaintiff 30% comparatively negligent, thus reducing the verdict
to $1 12,000. The court then further reduced the verdict to the $100,000 cap imposed by the
Massachusetts Tort Claims Act.
Many of the tort cases are also resolved through other means, such as dispositive motions or
settlement. The following cases are examples of resolutions achieved through those means:
• Allen V. Department of Social Services (DSS ) (Suffolk Superior Court) Ihe plaintiff, the
biological mother, and her minor son, sued DSS and his foster family lor negligence, claiming
that the minor son was physically and sexually assaulted by the loster parents' son while in the
foster home. The deposition testimony did not support the plaintiff s allegations in her pleadings.
Upon the Commonwealth's motion the court dismissed the complaint as to all defendants.
• Haygood v. Registry of Motor Vehicles (RMV ) (Suffolk Superior Court) Ihe plaintiff
claimed that he slipped and fell in a stairway at the Registry's former facilit)' on Nashua Street.
The plaintiff alleged that the RMV should have been aware of the defective condition in the
stairway. Discovery did not reveal that anyone had observed any defect, nor was there any
witness to the fall. On the day that the trial was to begin, the court dismissed the Citsc.
• Dumont v. Massachusetts Highway Department (Bristol Superior Court) The plaintifF
was injured in an auto accident on a state highway that was under construction. The parties
disputed whether the claim was governed b\' the state tort claims act (with its $100,000 damages
cap and its two-\'ear presentment requirement) or the road defect statute (with its $5000 damages
cap and 30-day notice requirement). The court agreed with the Commonwealth that this was
a road defect claim and thus allowed the Commonwealth's motion for summary judgment.
• Labonte v. Ness and Commonwealth (Norfolk Superior Court) The plaintiff claimed
that the Commonwealth's failure to "maintain' a rotting tree on public property Route lA in
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GOVERNMENT BUREAU TRIAL DIVISION
Wrciuliaiii LDiistitiitcd a puhlit. [UiisaiiLe bfcausc it sci tlic stage for a chain of cvf ins leatling to
an auto accident. Ness, tlic co-Jcfcndant, claimed that when the rotting tree tell and rolled in
hont of her car, she swerved and struck the plaintiHs vehicle. Iherc was no claim of negligence
against the Commonwealth, only a "pnblic nuisance" claim. Because the Commonwealth has
not waived its sovereign immunity to claims tor public nuisance, the court allowed the
(Commonwealths motion to dismiss.
• Moore v. Department of Social Services (DSS ) (U.S. District Comt) A physically and
merualh' challenged 6-vear-oltl, who had been placed in DSS custodv, kll down the stairs at a
residential hicilit)'. I'he court dlowed the Commonwealth's motion to dismiss based on the
Commonwealths immunities under the state tort claims act.
• MacDonaid v. Prive (Barnstable Superior Court) In this dispute over the ownership of a
$4 million instant lottery ticket, the plaintiffs claimed that one of them was the true ticket
owner, not the private co-defendants who had submitted a claim to the Lottery for the prize,
and that the Lottery negligently paid the wrong person. On the Lottery's motion, the trial
court bifurcated the trial so as to initially try only the claims between the competing private
claimants, reserving for a second trial any remaining claims that the Lotter}' paid the wrong
person.
In Fiscal Year 2004, several tort cases were successfully settled and resulted in significant savings to
the (lonimonwealth. The following cases are typical of the types of settlements reached in tort cases.
• McDermott v. Massachusetts Criminal Justice Training Council (Suffolk Superior Court)
The plaintiff injured her hand during training exercises at the police academy. The instructor
called a "time out " when he re.ilized that the plaintiff had a problem, but the plaintiff claimed
negligent supervision during the training and sought damages for lost overtime and emotional
distress. Her demand before trial was $65,000, but on the eve of trial, the Commonwealth
negotiated a $10,000 settlement.
• LeFevre v. Commonwealth (Essex Superior Court) The plaintiff claimed he sustained
significant back injuries after a fall from a loading dock at the Middlesex Superior Courthouse.
The Commonwealth contested liability, arguing that the plaintiff s own negligence, and not
the condition of the loading dock, caused his injuries. The plaintiff settled for $6,500.
• Pearl v. Commonwealth (Barnstable Superior Court) The plaintiff's automobile was rear-
ended by a vehicle driven by a DMH empKnee, who was cited for the action. Iwo lawsuits
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GOVERNMENT BUREAL: TRIAL DIVISION
resulted: one on behalf of the plaintiff seeking $100,000 for her personal injuries, and a
subrogation claim brought by her insurer to IndemnifA' it for amounts in excess of $ 1 0,000 paid
on behalf of its insured lor medical and property damages. After mediation, the persona! injury
claim was settled for $58,000 and the subrogation claim for $2,000.
Other tort cases raised legal issues requiring resolution b\' the appellate courts. Examples of such
cases include the following:
• Sobolowski V. Registry of Motor Vehicles (RMV ) (Appeals Court) The plaintiff sued the
RMV for negligent record-keeping regarding the status of his driver's license. Reversing the
Superior Court, the Appeals Court ruled that the RMV's negligence in revoking a license was
not actionable, because the state tort claims act preserves the Commonwealths immunity from
suits based on licensing functions.
• Cruthird v. Commonwealth and Three justices of the Appeals Court (Appeals Court)
The plaintiff was convicted of armed assault with intent to murder, assault and batter}' by
means of a dangerous weapon, and possession ot a firearm without a license. The plaintiff's
complaint alleged that the judicial defendants, who sat on a panel of the Appeals Court that
affirmed the convictions, had acted wantonly, willfulU', negligentl\', and outside of their
jurisdiction by affirming the conviction. The trial court granted dismissal based on judicial
immunit}'; the Appeals Court affirmed; and the Supreme Judicial Court denied further appellate
review.
• Andrutis v. Berghaus and State Police (Appeals ("ourt) The plaintiff appealed from a jury
verdict in favor ot the Commonwealth entered several years ago involving a fatal car accident
caused by a car driven by a trooper. A key dispute was whether the trooper involved was. in
fact, acting within the scope of his employment at the time of the accident, only if so, would he
be eligible for indemnification from his employer, the State Police. The Appeals Court afFirmed
the jur\' verdict, ruling that there was sufficient evidence from which the jur\' could find that
the trooper was not acting within the scope of his emplo\'ment at the time of the accident.
CONTRACTS
The division defends the Commonwealth and its agencies in a variety of contract actions consisting
of construction disputes, breach of lease cases, and bid protests. Often these cases are complex because
they often involve interpretation of bidding regulations and a complicated statutory framework. 1 he.se
cases also frequently rec]uire the division to defend requests for preliminary injunctive relief, which may
be dispositive of the entire case. LJnlike tort cases, there is no statutory cap on the potential exposure to
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GOVERNMENT BUREAU TRIAL DIVISION
the (.Ommonvvcihli, so the (ioinnidinvcaltlis liabilit)- txposuic can be quite large in an)' given Ciise.
1 he following aie examples of the t)-pes of contract cases handled hv the liivision.
• Brown, Rudnick v. C'otninonwealth (Siitiolk Superioi ('oiut) i.awveis who repiesented
the CJommonwealth in its sint against the tobacco indiisti)' in the IV^Os sought 25% ot the
money recovered, or to he recovered in perpetuity, by the C^ommonwealth pursuant to the
1998 national master settlement agreement (MSA) between the states and the tobacco industr)'.
The lawyers sought to recover approximately $2.1 billion over the next 25 years, with billions
more in perpetm'ty (subject to certain variables and an offset for amoiuits paiti to them directly
b\' the tobacco industr)'). The jury found that the law)'ers were entitled to only 1 0.5% of what
the Commonwealth will receive under the MSA, and only for the first 25 years of the MSA,
thus rejecting both the 25% and the perpetuit)' arguments. Ihe jur\' award is also subject to an
offset for the amounts that the law)'ers receive directly from the tobacco industr)' as attorneys
fees pursuant to the MSA. As a result, based upon current projections and subject to certain
variables, the attorneys ma)' nor be entitled to ati)' additional artt)rneys fees from the
Commonwealth, saving the Commonwealth over $1 billion in the next 20 years alone.
• Superior Abatement. Inc. v. IDM Environmental v. DivisionofCapital Asset Management
(DCAM ) (Suffolk Superior Court) The plaintiff submitted a claim for the cost of abating vinyl
asbestos floor tiles during demolition of the old Boston State Hospital. The plaintiff argued
that the work was not included in the contract specifications and cost an additional $800,000
to complete. DCJAM maintained that the abateinent work was includetl in the specifications
and thus in the contract price. The dispute turned on the interpretation of language found in
a footnote in the contract. DCAM was able to negotiate a favorable $135,000 settlement of
the claim against it, with the other defendants contributing $165,000, for a tot.il of $300,000
on the $800,000 claim.
• Midland States Life Ins. Co. v. Cardillo and State Lottery Commission (Appeals Court)
1 he plaintiff corporations sued to compel the Lottery Cominission to transfer lottery winners'
payments to the corporations pursuant to agreements whereby the winners had pledged fiiture
payments in return for loans. The court agreed with the Lottery Commission that the agreements
were impermissible assignments of lottery proceeds in violation of state law.
REAL ESTATE
Ihe real estate cases handled b)' the Trial Division consist primarily of eminent domain cases, along
with miscellaneous other types of real property cases. Like contract cases, there is no statutory cap that
limits the Commonwealths exposure to damages in these t)'pes of cases. Therefore, the potential
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GOVERNMENT BUREALi TRIAL DIVISION
liability in any case can amount to millions of dollars depending on what the jury concludes is the
highest and best use for the land taken by the (Commonwealth. The following are examples of the t}'pes
of cases haiuiled in this area and the manner in which they were resolved.
• Dewey Square v. Massachusetts Highway Department (MHD ) (Suffolk Superior Court)
MHD took several easements at One Financial Center for the Big Dig project. The owners
claimed that their property suffered a diminution in value of $14 million, plus interest, due to
the easements and the disruption caused by the adjacent construction. After mediation, the
parties reached a settlement for $1.25 million, resulting in a savings of $12.75 million to the
Commonwealth.
• Magaletta v. Commonwealth (Norfolk Superior Court) MHD took tour adjacent parcels
along Route lA in Westwood, as well as some temporary construction easements, as part of a
road improvement project. The combined pro tanto payments for the four parcels exceeded
$290,000. Prior to trial, plaintiff demanded an additional $325,000, but the Commonwealth
negotiated a favorable settlement of $80,000, resulting in a savings of $245,000.
• W&R Realty V. MHD (Middlesex Superior ("ourt) MHD took a, small portion of plaintiff's
land located on West Main Street in Hopkinton. The plaintiff demanded $105,000, but the
Cornmonwe;tlth settled by a payment of $64,000, for a savings of $41,000.
• Drwila v. Conim. (Plymouth Superior Court) This case concerned the taking of over 55
acres in Kingston for the Route 44 project. At trial, the Commonwedth successfully moved to
strike the plaintiff's engineer's testimony. Wliile the pro tanto previously paid to the plaintiff
was $430,000, the jury awarded only $350,000, which was $80,000 less than the pro tanco .
The plaintiff's pretrial demand was $1.8 million, but the verdict resulted in the plaintiff owing
the Commonwealth $80,000.
• Rodman v. Commonwealth (Norfolk Superior Court) In this eminent domain taking of
land on Route 1, the Commonwealth's initial payment to the owners at the time of the taking
was $765,000, but the jury awarded only $575,000, about $1.85 million less than what the
plaintiffs claimed.
Some real estate matters raised legal issues rec]uiring resolution bv the appellate courts. Examples of
such cases include the following:
• Locator Services. Ltd. v. Treasurer (Superior Court, Appeals Court) The Treasurer moved
for summary judgment asserting that G.L. c. 79, § 7D does not require the payment of compound
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GOVtRNMENT BUREAU I RIAL DIVISION
interest on eminent domain damages awards, and that the phiiiuiH's compoinul interest claims
on behalf of 55 parties svere barred by sovereign immunity. After the Superior Cloiut denied
the motion, the Treasurer appealed, and also siiecesshill)' moved lor the Superior Court to
report the correctness of its rulings to the Appeals C^ourt. A resoliuion is expected in Fiscal Year •
2005.
• Boston Water & Sevver Comm'n (BWSC) v. Commonwealth (Ap|xals Court) Ihe
Legislature took a large parcel of land, claimed by BWSC, for use by the University of
Massachusetts at its Harbor campus. BWSC sued, claiming that the legislatiue's act was invalid
and did not provide the constitutit)nally rcc]uired just compensation for the taking. The Superior
Court agreed with the Commonwealth that BWSC cannot contest the constitutionality of an
act of Legislature, and therefore the judgment entered for the ('ommonwealth. BWSC has
appealed.
• M.B. ClafF. Inc. v. MBTA (Supreme Judicial Court) In this case challenging the
constitutionality of the state law setting the interest rate on eminent domain judgments, the
Attorney Ceneral filed an amictis brief to inform the court of the complexit)' of the issue, the
diftKiilties with a judicial resolution, and the desirability of a court decision calling the
constitutional question to the Legislatures attention and outlining the constitutional parameters
of a solution. The court did not reach the constitutional issue in this case, but, in the companion
ca.se of Liberty Square Development Trust v. City of Worcester , issued a decision along the
lines suggested in the amicus brief. At the close of Fiscal Year 2004, efforts were continuing to
obtain the adoption of legislation that would meet constitutional requirements as outlined by
the court.
EMPLO\TvlENT. CIVIL RIGHTS. AND OTHER CASES
Increasingly, the Trial Division is called upon to defend the Commonwealth and its agents in
employment and civil rights cases. These cases are factually and leg.tlly complex and present challenging
issues to the division. Also, because there is no statutory cap on the monetar)' damages that can be
awarded in these cases, and because these tj'pes of claims frequently are brought against officials or
employees in their individual capacities, the potential financial exposure can be significant. The division
handled a nutnber of civil rights cases during Fiscal Year 2004, including the following:
• Mihos V. Swift (U.S. Court of Appeals, First Circuit) The court affirmed in part and
vacated in part a judgment entered by the U.S. District Court on claims for personal damages
against the former Acting Governor brought by a former member of the Massachusetts Turnpike
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GOVERNMENT BUREAU TRIAL DIVISION
Authority. The claim for damages arose out of the Acting Governor's attempt to remove the
member from the hoard of the authority. The coiuf remanded the case tor further proceedings
on tlie members claim under the First Amendment.
• Wilbur V. Department of Social Services (DSS ) (U.S. District Court) A mentall)' challenged
teenager allegedh' was raped bv an individual in DSS custody. The court granted the
Commonwealth's motion to dismiss the tort claims based on Eleventh Amendment immunity,
but the civil rights claims against the individual state employees remain.
The Trial Division resolved, by way of trial or otherwise, a number of significant employment
ca.ses, including the following:
• Denton v. Smith (U.S. District Court and U.S. Court of Appe;ils, First Circuit) The
plaintiff, a former social worker and employee of Health Education Services (HES), brought
suit for intentional interference with contractual relations, defamation, and violation of her
federal and state civil rights following her suspension from her position at HES. The plaintiff
had been accused of having an inappropriate relation.ship with an emotionally disturbed juvenile.
After her dismissal from her empIo\'ment, the plaintiff brought suit against various DSS and
other state agency employees. Following the state Superior Court's decision affirming a DSS
Fair Hearing officer's substantiation of a claim of abuse/ neglect by the plaintiff, the federal Ciise
was resolved by the plaintiff's stipulation to dismiss with prejudice her claims as to all defendants.
• Pafel v. Middlesex Sheriff (U.S. District Court) The court allowed the Sheriff's motion to
enforce the plaintiffs acceptance ol the Sheriff's offer of judgment. Under this judgment the
plaintiff agreed to accept a total of $150,000 from the Sheriff to satisfy' all claims made and
relief sought by the plaintiff arising from or related to his April 2000 termination from the
Middlesex Sheriff's Office. The court agreed with the Sheriff that the plaintiff's acceptance of
the offer of judgment constituted a release of all the plaintiff's claims against the Sheriff arising
from the termination, including the plaintiff's claims in two pending state court cases. After an
evidentiary hearing, the comt rejected the plaintiff's claim that his prior attorney did not have
authority to accept the offer of judgment.
• Romero v. Commissioner of Environmental Protection (Suffolk Superior Court) The
plaintiff, a Department of Environmental Protection (DEP) emplo)'ee who had been passed
over for a management position and subscqucnth' terminated, claimed handicap discrimination
based on hearing loss, tinnitus, as.sociated extreme sensitivity' to background noi.se (hyperacusis),
and depression. After an eight-day trial and three days of deliberation, the jury agreed with the
Commonwealth and returned a defense verdict.
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• I'hillips V. Department of Mental Health (DMM) (Suffolk Superior Court) The plaintifF,
employcii by DMH as a nurse, claimed that he was fired in retaliation for reporting patient
abuse. After trial, the jiu)' loiuid lor DMH on all coimts.
• McCord V. Commonwealth (Suttolk Superior C'ourt) llie plaintiff Liainiei.1 that she w;ts
denied pay, promotional opportunities, and training on account of sex-based discrimination by
the state Information Tcchnolog}' Division. After trial, judgment entered for the Commonwealth.
• Collins V. Commonwealth (Suffolk Superior Court) The plaintiff claimed that he had
been discriminated against based on his disability when he was rejected from the State Police
Acadein\'. llie State Police physician rejected the plaintiff on the grounds that he could not
perform safel\' all of the essential duties of the job. 1 he plaintiff argued that he was a qualified
handicapped person because, he claimed, he could perform the job with a reasonable
accommodation in the form of protective gear. The court disagreed and entered summar}'
judgment for the CJommonwealth, ruling that the plaintiff was not a qualified handicapped
person because the "accommodation" required would not be reasonable and there was no
re;isonable way to protect the plaintiff's health.
• Grady V. Department of Environmental Protection (Suffolk Superior Court). The plaintiff
was a non-tenured manager who claimed that he had been terminated in violation of ion employee
handbook and the public policy exception to the at-will employment doctrine. He fiarther
claimed that he was not allowed a hearing to defend himself against defamation as provided by
the due process clause. DEPs motion for summary judgment was allowed.
• Marone v. DOC (Sufifolk Superior Court) In this handicap discrimination claim against
the Department of Correction, the jury found that the DOC, as emplo\'er, made all reasonable
accommodations for the plaintiff corrections officer, who had a hyper-sensitivity to cigarette
smoke, which induced her asthma, leading to her extended leave from work.
Some employment and civil rights cases raised legal issues requiring resolution by the appellate
coiuts. Examples of such cases include:
• Clancy v. McCabe (Appeals Coiut) The plaintiff, a female motorist who had been sexually
assaulted by an on-duty state trooper, claimed that the former Commissioner of Public Safet)'
had violated her civil rights by failing to terminate or discipline the trooper more harshly than
the six-month suspension that the trooper had received for r\vo prior acts of misconduct involving
female motorists. The Commissioner argued that he was entitled to qualified immunity for his
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GOVERNMENT BUREAU TRIAL DIVISION
discipline decision. The Appeals Court disagreed. The Supreme Judicial Court, however,
granted further review and held that the former Commissioner was entitled to qualified
immunity. 1 he only remaining claim against the Commonwealth was for tort liability for its
alleged negligent supervision of the trooper.
• Dasey v. State Police (U.S. Court of Appeals, First Circuit) The court affirmed the grant of
summar)' judgment to the State Police, who had been sued for dismissing a probationary-status
trooper because he lied in his admission application and smoked marijuana before becoming a
state trooper. The plaintiff's first civil rights suit, alleging a procedural due process violation,
was previously dismissed by the District Court, which dismissal was affirmed by the First Circuit.
• Ritchie and Cameron v. Department of State Police (consolidated cases) (Appe;ils Court)
The plaintiffs are State Police troopers who claimed they were subjected to a hostile work
environment and retaliated against as a result of complaining about that environment. The
State Police's motion to dismiss was granted, but on appeal, the Appeals Court reversed, ruling
that there were sufficient facts alleged to make out a claim tor retaliation under G.L. c. 151B.
I'he Appeals Court thus did not reach the question whether the plaintiffs could sue for a hostile
work environment when none of the iilleged conduct was directed at them.
STATISTICAL SUMMARY
Inuring Fiscal Year 2004, the Trial Division opened 256 tort cases and closed 189; opened 32
contract c;ises and closed 19; opened 32 real estate cases and closed 35; and opened 123 employment
and civil rights cases (as well as other miscellaneous t)'pes of cases) and closed 97. At the end of Fiscal
Year 2004, there were 1,831 open cases in the Trial Division. In Fiscal Year 2004. there have been
particular increases in both tort and employment lawsuits as compared to Fiscal Year 2003. The Trial
Division is dedicated to effectively and efficiently resolving civil lawsuits to protect and defend the
Commonwealth and the public.
OUTREACH, EDUCATION, AND TRAINING
During Fiscal Year 2003, Assistant Attorneys General in the Trial Division participated in a wide
range of outreach and training efforts, including serving as facult)' in Ma.ssachusetts Continuing Legal
F'ducation programs, participating in the Citizen Schools Project, and assisting in trial training and
moot court programs at various law schools.
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PUBLIC PROTECTION
BUREAU
Civil Rights and Civil Liberties Division
Consumer Protection and Antitrust Division
Environmental Protection Division
Insurance Division
Investigations Division
Mediation Services Division
Division of Public Charities
Utilities Division
raiBLIC PROTECTION BUREAU c\\'\i RICHTS AND CIVIL LIBERTIES DIVISION
Public Protection Bureau
1 hf Piiblic Protci-tion I^uicau manatees and oversees civil attlrmative litigation on hclialt of the
CoiiinioinvLaitli and its citizens; the de\elo[imeiit of policy, legislative, and regulatory proposals; and
personnel for eight divisions, which include Civil Rights and Civil Liberties, Consumer Protection and
Antitrust, Environmental Protection, Insurance, Investigations, Public Charities, Utilities, and Mediation
Services. The bureau also includes the Consumer Complaint and Information Section, and oversees
ilic Local Consumer Aid Hund, which provides grants to local communii)' groups to mediate and
resolve consumer complaints at the local level.
I he biueau develops and coordinates health care polic}' initiatives to improve the coordination,
enhancement, and expansion of current health care policy enforcement efforts. 1 he bureau targets its
efforts to preserve access to affordable, high-quality health care that is responsive to the communities'
needs.
rile bureau oversees Arrorne\' (ieneral Reilly's (lommunit)' Benefits Cjuidelines for both hospitals
and HMOs. Members of the Insurance Division, the Consumer Protection and Antitrust Division,
and the Public Charities Division staff the Community Benefits initiative.
The bureau .ilso has an Elder Protection Unit that seeks to enhance protections for Massachusetts
elders by improving both the coordination of the Attorney Ceneral's outreach efforts and the response
to matters involving elder fraud and abuse.
The Public Protection Bureau included Alice Moore, Bureau Chief; David Beck; Charlene Best-
Brown; Richard Cole; Kirsten Engel; Nusirat Hassan; Katharine London; Anna Marie Meola; Isabel
Silva; and Rose Ursino.
CIVIL RIGHTS AND CIVIL LIBERTIES DIVISION
The Civil Rights and Civil Liberties Division enforces the Ma.ssachusetts Civil Rights Act (MCRA).
Ihe MCRA authorizes the Attorne\' Cieneral to seek injunctive relief when threats, intimidation, or
coercion based on an individual's race, color, national origin, ethnic background, gender, sexual
orientation, disabilit)', age, or religious affiliation interfere with the exercise of that persons civil rights.
A violation of a civil rights injunctive order constitutes a criminal offense, punishable b}- a maximum of
10 years in state prison if the victim suffers bodily injiiiT, or up to two and one half j'ears in a correctional
facility if no bodily injury results.
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['LIBLIC PROTECTION BUREAL: CIVIL RIGHTS AND CIVIL LIBERTIES DIVISION
The division also enforces the 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. Division staff also focus on employment discrimination,
discrimination in places of public accommodations, and educational equity.
The Disability Rights Project works to increase enforcement ot state and federal laws assuring equal
access to places of public accommodation like restaurants and stores and access to municipal buildings
and services. The project protects the rights of individuals with disabilities not only through ligitation,
but by providing assistance to individuals, access to training, publications, intervention with municipal
entities, and speaking engagements.
The Civil Rights and Civil Liberties Division included Cathy Ziehl, Division Chief; Patricia Correa,
Director, Disabilit}' Rights Project; Michael Fleischer; Bethany Hyland; Rosalind Kabrhel; Jennifer
Keating; Judy Levenson; Maria MacKenzic; Tina Matsuoka; and Daniel Swanson.
SIGNIFICANT CASE SUMMARIES
BIAS AGAINST SEXUAL ORIENTATION
• Commonwealth v. Alevizos (Suftolk Superior Court) The division obtained a preliminar)'
injimction against James Alevizos afiier he tried to run over, and then physically assaulted, two
men he thought were gay, leaving one victim with a broken jaw.
• Commonwealth v. Isiah Bass, Brian Belew, Jeffrey Guity. and Teagan Isabelle Simms
(Suflolk Superior Court) The division obtained fuial judgmeiu against all defendants except
Simms after they physically assaulted a gay couple in Boston in 1999 using a baseball bat and a
vodka bottle.
BIAS AGAINST DISABILITY
• Commonwealth v. Pimental (Norfolk Superior Court) The division obtained a preliminar}'
injunction against Eleanor Pimental after she threatened, intimidated, and used coercive behavior
toward her neighbor, Kelh' Doolin, and Ms. Doolins 1 1 -year-old autistic son, based on the
son's disability (using her dog to frighten the boy, calling him "'retard'" and "animal," and accusing
him of bringing down her property values).
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PUBLIC PROTECTION BL READ CIVIL RICHTS AND CIVIL LIBERTIES DIVISION
EMPLO^'MENT DISCRIMINAIION
• Commonwealih v. Bull HN Information Systems. Inc. (L'nitcd States District (^oiirt)
The division, along with the Equal Einployment Opportunity Commission (EEOC), settled
this age discrimination case on March 4, 2004. The court entered declarations and ordered
relief on the Commonwealths claims alleging that Bull HN, a large elearonics company, violated
the federal Older Workers' Beiierus Protection Act {ONX'i^i'A) .uui the federal Age Discrimination
in tlm[ilo\-ment Act (ADEA) when la\'ing off its workers aged 40 and older. Ihe settlement
revived tlie rights ol former employees affected by the layoff to file an age discrimination claim,
and required Bull HN to provide those employees with information under the OWBPA so
they could assess the merits of such a claim.
• UNICCO Services Co. Along with the ElEOC and the K'lassachusetts Commission Against
Discrimination (MC'AD), the division continued to monitor Unicco's compliance with the
June 2002 consent decree arising Irom allegations of repeated sexual harassment of immigrant
temale office cleaners.
• Massachusetts Bay Transportation Authority The division continued to monitor the MBTA
pursuant to an Equal Employment Opportunitv' Agreement and EEO Compliance Program
the Attorney General and MBTA executed on February 6, 1997, in response to long-standing
complaints of discrimination, harassment, and retaliation at the MB7A.
EDUCATIONAL EQUITY
• Comfort et al. v. Lynn School Committee, et al. (United States District Court) On June
6, 2003, the court issued its decision in this challenge to Lynn's l4-year-oId voluntary school
desegregation plan and the state's school desegregation law under the federal and state
constitutions, finding that the United States Constitution does not prohibit school districts
from implementing voluntary plans to desegregate their primary and secondary schools. 1 he
court found that, as a result of l_A'nns success in integrating its schools, students received the
considerable benefits of learning from and with children from other races and ethnic groups,
and were better prepared for success in racially and ethnically diverse workplaces and
communities. The court also found that racially and ethnically diverse students maintain positive
inter-group relations, minimizing tensions and violence in the schools. Ihe federal court also
attributed the end of racial isolation and segregation of Lynn's students, and its successful
implementation of its integration plan, with Lynn's students' positive acadeinic achievement,
performance gains, and improving test scores. The plaintiffs appealed the decision to the First
Circuit Court of Appeals. The division filed its brief on May 2^, 2004; the First Circuit
scheduled arguments to be heard on August 5, 2004.
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I'L;BLIC PROTECTION BLIREAL; CIVIL RICH IS AND CIVIL LIBERTIES DIVISION
HOUSING DISCRIMINATION
The division settled 20 cases, resulting in $8'S0,O0() in monetary relief and affirmative injunctive
relief changing the business practices, including equal housing opportunity policies, complaint and
investigation procedures, anti-discrimination training, and reporting mechanisms, of landlords,
management companies, and rental agents. Through training programs and prosecuting housing
discrimination cases, the division also woiked to modift' landlord and realtor practices, to educate
tenants about the right to fair treatment in the hoirsing market, and to increase the availability of safe,
affordable housing for families with \'oung children.
• Commonvyealth v. Davis (Middlesex Superior Court) Allegations of refusal to rent to a
recipient of Section 8, this case .settled for $60,000 in damages and prohibitory and injunctive
relief
• Commonwealth (Leticia Cruz) v. David Johnson, et al. (Hampden Superior Court)
Allegations that the owners of a three-family rental property in Spi ingfleld discriminated against
a tenant on the basis of familial status and because the apartment may have contained lead, this
case settled for $3,300.
• Commonvvealth v. Estate of Mary Moore (Suffolk Superior Court) Allegations of fimilial
status and lead paint, this case settled for $7,500.
• Commonvyealth v. Mary Murnane (Middlesex Superior Court) Allegations of race and/or
color discrimination, this case settled for $50,000 and general prohibitory relief.
• Commonwealth and Yolanda Lopez v. Robert Ahearn and Olde Holyoke Development
Corporation (Hampden Superior Court) Allegations of sexual harassment and retaliation by
the landlord's property manager, this case settled for $35,000 and equitable relief
• Commonwealth and Thomas v. Hatfield Housing A uthority (Hampden Superior Court)
Allegations of disabilit}' discrimination resulted in a consent decree establishing procedures and
policies for reasonable accommodation and $12,500 in monetary relief
• Commonwealth v. Clarendon Towers/McNeil Management Company (Suffolk Superior
Court) Allegations of intimidation, harassment, discrimination, and retaliation because of
race, national origin, and disability were filed against this federally subsidized, 500-unit housing
complex and management company, these cases settled by consent decree. The defendants
paid substantial monetary damages to complainants, and agreed to make sweeping changes to
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'UBLIC PROTECTION Bl'RCAl.' ( IVIL RIGHTS AND CIVIL LIBERTIES DIVISION
its policies and practices to pormancinly protect tenants and applicants from discrimination
and retaliation. An independent niointor will oversee the management and operations until
2010.
• Commonwealth v. Dolben, et al. Allegations oi refusal to rent to reci|Ments ot housing
subsidy programs, this case settled for significant injimctive relief applicable to hundreds of
affordable imirs [dolben owned or controlled.
• Commonwealth v. Raymond Scanzani (Suffolk Superior Court) Allegations of refusal to
rent to recipient of Section 8, this case settled for $20,000 and injunctive relief
• Commonwealth v. Federal Management (Middlesex Superit)r Court) Allegations of
discrimination against a person with a disability, this case settled for injimctive relief
• Commonwealth & Michelle Repoilet v. Judy Thompson & Abaladejo Management
(Hampden Superior Court) Allegations of discrimination arising from familial status, this case
settled for $35,000 and injunctive relief
• Commonwealth v. Peter Denial (Worcester Superior Court) Allegations of sexual
discrimination and retaliation, this case settled for $13,000.
• Commonwealth v. Kaplan (Essex Superior Coiut) Allegations of refusal to rent to a Section
8 recipient, this case settled for $7,500 and injunctive relief
• Commonwealth v. EIS Linden Realty and Milan (Middlesex Superior Court) Allegations
of discrimination because of famili;d status, this case setded for $3,500 and injunctive relief
• Commonwealth v. EIS Linden Realty LLC (Suffolk Superior Court) Allegations of
discrimination of familial status, this case settled for $3,500 and injunctive relief
• Commonwealth v. lames Farrell (Suffolk Superior CJoiut) Allegations of refusal to rent to
a Section 8 recipient, this case setded for $5,000 and injunctive relief
• Commonwealth v. Borrelli (Norfolk Superior Court), based on allegations of discrimination
against a person with a disability, this case settled for $5,000 and injunctive relief.
• Commonwealth v. Kfoury (Bristol Superior Court) Allegations of familial status
discrimination arising from the presence of lead paint, this case settled for injimctive relief
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PUBLIC PROTECTION BUREAU CIVIL RIGHTS AND CIVIL LIBERTIES DIVISION
• Commonwealth v. Crown Place (Plymouth Superior Court) Allegations of disability and
Section 8 discrimination, this case settled for 525,000 and injunctive relief.
• Commonwealth & Diane loaquin v. Hebig (Hampden Superior Court) Allegations of
sexual harassment, this case settled tor $4,000.
The division also filed seven new cases referred from the Massachusetts Commission Against
Discrimination (MCAD), after the Comitiission determined that discrimination claims were supported
by [irobable cause and an election lor judicial determination was made, as required by the Hair Housing
laws.
• Commonwealth v. Oxford Realty & Lillian Pepi (Middlesex Superior Court) Allegations
of refusal to rent to a recipient ol a housing voucher hom the Alternative Housing Voucher
program, which provides rental assistance to persons with disabilities.
• Commonwealth v. PINC, LLC (Middlesex Superior Court), Commonwealth v. Lorenna
Cullen (Norfolk Superior Court), and Commonwealth v. Douglas Williams (Barnstable
Superior Court) Allegations ol rehisal to rent to a Section 8 recipient.
• Commonwealth/Derusha v. Correa (Worcester Superior Court) Allegations of refusal to
rent to a Section 8 recipient and lead paint violations.
• Commonwealth v. Wheel Estates and Morgan Management (Berkshire Superior Court)
Allegations that the owners/operators of a mobile home park rehised to make reasonable
modifications to the common areas of the park in order to make the pool and pool house
accessible.
• Commonwealth v. Wahconha Grove Street Realty Trust (Berkshire Superior Court)
allegations ot racial discrimination against a white tenant who has a bi-racial son and associates
with her African-American boyfriend and family members.
PUBLIC ACCOMMODATIONS
• Commonwealth v. Haverhill Country Club (Appeals Court) The division continued to
defend on appeal the October 1999 jury verdict against Haverhill Golf & Countrj'Club (HCC)
in this gender discrimination case, and the Suffolk Superior Court's order in January 2000,
finding that HCC had engaged in a pattern and practice of gender discrimination against its
women members, and entering a permanent injunction ordering HCC to cease discriminating
against female members of the club. HCC appealed this verdict and the division filed its brief
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PUBLIC PROTLCTION BLIREAli CIVIL RIGHTS AND CIVIL LIBERTIliS DIVISION
on September 20, 2002. The Appeals Court heard oral argument on December 19, 2002, and
rendered its decision on hme Ij, 2003, afHrming the trial jury's award of $1,967,400 and the
trial court's order oi pcrmaneni injimciive relief. On September 5. 2003, the Supreme Judicial
Court denied further review.
DISABILITY RKJHTS
• Commonwealth and National Federation of the Blind v. E* IRADE Ihe division continued
to prosecute its lawsuit fded with the MCAL) in conjunction with the National Fedeiation of
the Blind, alleging that E' II-IADE, operator of one of the largest ATM networks in the country,
has failed to make the ATMs it operates, but does not own, accessible to the blind. The
complaint was also filed on behalf of four plaintiffs, all Massachusetts residents, who represent
the approximately 35,000 blind people in Massachusetts, who, in accordance with the
Massachusetts Public Accommodations Act, are seeking the same access to bank and investment
services available to sighted AIM users.
• CVS The division continued to monitor the Assurance of Discontinuance with CVS Stores,
requiring them to remedy violations of turning radius and aisle width requirements. The division
found multiple violations of the Assurance and ultimatelv reached a settlement by consent
decree on March 24, 2004. The settlement required a company-wide physical barrier elimination;
training; development of a physical accessibility policy, procedure, and customer complaint
process; appointment of an ADA coordinator, and payment of fines in the amount of $250,000
($200,000 up from and $50,000 for future violations).
• Fenway Park Concerts The division investigated complaints from people with disabilities
who had difficulty purchasing accessible seats through Ticketmaster, and whose accessible seats
would have obstructed views if spectators stood during concerts. The division, working with
the Department of Justice, negotiated a resolution with the Red Sox and concert promoter.
Clear Channel.
• Starwood Hotels/Cape Codder Hotel Ihe division continued to monitor the consent
decree arising from architectural deficiencies under the ADA. After an audit in the summer of
2003, the division sought a response to access barriers it had identified.
• Tennessee v. Lane The Attorney Ceneral joined an amicus curiae brief filed in the United
States Supreme Court arguing that Title II of the ADA, which require states and municipalities
to provide persons with disabilities access to programs and services, was a valid abrogation of
the Eleventh Amendment, and that claims for monetary damages arising from violations could
be brought against state and municipal agencies.
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PUBLIC PROTECTION BUREAL; CIVIL RIGHTS AND CIVIL LIBERTIES DIVISION
• Retail Advisory: Accessibility for Individuals with Disabilities in Retail and Department
Stores In N4arcti 2004, the division issued a retail advisory reminding retailers of the obligation
to maintain aisles and turning radiuses.
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
Sexual Abuse by Clergy The division contributed to the drafting of The Sext4al Abuse of Children in
the Roman Catholic Archdiocese of Boston: A Report by the Attorney General.
The Massachusetts Hate Crimes Task Force I he Attorney General's Hate Crimes Task Force,
comprising approximately 100 law enforcement officers and prosecutors, community leaders, civil
rights advocates, victim assistance professionals, educators, and other leaders from throughout the
Commonwealth, shares information and highlights efforts in Massachusetts related to hate crimes
enforcement, response, training, and prevention. The Task Force recently finalized and published a
"Know Your Rights' brochure for victims of hate crimes.
Civil Rights in Schools The division continued its focus on ensuring the civil rights of students
attending schools in the Commonwealth. The division provided or participated in a variety of civil
rights educational programs to train students, teachers, and administrators on hate crimes, bull\-ing
and hazing, and sexual orientation, racial, national origin, and religious harassment and discrimination.
The programs for school administrators, teachers and staff include information about identifying and
responding to unlawful conduct and creating compiehensive civil rights protection programs.
Programs the division organized and provided included a civil rights training for the entire staff of '
Attleboro Public Schools on September 2, 2003; anti-harassment training for the entire staff of the
Sharon Public Schools on June 8 and August 31, 2004; and civil rights training for Sharon Youth
Coalition on November 18, 2003.
Programs the division participated in included a civil rights presentation at Middleboro High School;
a videotaped civil rights panel presentation with the Reading Police Department and School District
for use in the Reading schools; a conference titled "Sexual Harassment and Hazing in Schools' on
February 6, 2004; a Cender Bias Training Program at Putnam Vocational High School in Springfield
on April 27, 2004; a Peer Leadership Training Program at Springfield High School of Science and
Technolog}' on May 6, 2004; and Respect Day at Grover Cleveland Middle School on June 4, 2004.
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I'LIBLIC PROTECTION BL'REAU CIVIL RIGHTS AND CIVIL LIBERTIES DIVISION
Civil Rights and Police In a collaborative eltoi t to promote civil rights, assist police departments,
and provide departments with technical assistance, the division offered and provided civil rights riaining
to law enforcement, covering issues of hare crimes ideiuification, response and prosecution, civil liability,
sexual harassment, and racial and cultural awareness.
The division also investigated allegations ot police miscondtict, and police departments regularly
consulted with the division for assistance on internal civil rights investigations. The division has worked
closely with departments to ensure that they take appropriate remedial steps when credible evidence
siibsrantiates civil rights complaints.
Racial Profiling (diapter 228 ol the Laws of 2000, An Act Providing for the (Collection of Data
Relative to Tratllc Stops, requires law enlorcement departments and agencies to collect data related to
all traffic stops where a traffic citation or warning was issued. If the information "suggests" that a state
police barracks or municipal police department "appears" to have engaged in racial or gender profiling,
the Secretary of the Executive Office of Public Safet)' (HOPS), with the Attorney General, makes a
determination whether to collect data on all tratllc stops, including those not resulting in a warning,
citation, or arrest.
The division has been an active member of the EOPS Secretarj's Racial and Gender Profiling
Working Group, a group ol about 70 law enforcement and community leaders from throughout the
Commonwealth convened to advise the Secretary about data collection and data analysis required by
the statute. On May 4, 2004, Northeastern Universitj' (and Secretary of EOPS) released Massachusetts
Racial and Gender Profding Study and Racial and Gender Profiling Pechnical Report. Following the
release ol this report, the Secretary of EOPS notified 249 police departments on May 21, 2004 that
the)' must collect additional traffic stop data for an additional }'ear.
QWi\ Rights Initiatives with the National Association of Attorneys General (NAAG) Division
members continue to serve in leadership positions in the NAAG's Civil Rights Working Group, which
consists of representatives of state Attorneys C^eneral's offices from throughout the country that work
to enhance the cooperative relationship between the states and the U.S. Department of Justice and the
Equal Employment Opportunity C'ommission in ci\il rights enforcement. Division members served
on the organization committee for the May 2004 NAAG Civil Rights Conference, participated in
presentations, and moderated panels.
Democratic National Convention Security The division assisted federal officials and Boston police
in identifying and addressing civil rights and civil liberties issues arising from demonstrations and other
actions taken at the Democratic Convention in the sunmier of 2004. This ;tssistance included research
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['L;BLIC PROTECTION BUREAU CONSUMER ['ROTECTION AND ANTITRUST DIVISION
of legal issues of civil rights in soft secuiit)' zones, permitting process for demonstrators, sites tor protestors
within sight and sound of the Fleet Center and other locations, arrest standards, use offeree and search
issues, and protocols and procedures for processing those arrested.
OUTREACH, EDUCATION, AND TRAINING
Members of the division participated in Separate and Unequal: Segregation and Educational
Opportunity in Metro Boston , the Harvard Civil Rights Project's conference on the 50th anniversary
of Brown v. Board of Education : Violence in Schools: Immigrant Youth as Targets , a panel at the
Juvenile Justice Institute's New Young American Conference; an NAACP regional conference (jn the
Lynn case and racial profiling; and the Indian-i\merican Forum for Political Education's annual luncheon
on hate crimes and the Indian community in Massachusetts.
Disability Community Division staff continue to serve as members of the Coalition for the Legal
Rights of People with Disabilities and the Massachusetts Developmental Disabilities Council.
Fair Housing Ihe division participated on a panel titled "Familial Status Discrimination and Lead
Paint Laws " as part of a program organized by HUD on the occasion of the 36''' anniversary ot the Fair
Housing Act. The division spoke at a HUD National Fair Housing Conference on federal fiiir housing
laws in Washington, D.C.. on June 14 and 15, 2004. The division also presented at a fair housing
training sponsored by the Creater Boston Association of Realtors, Harvard Civil Rights Project, Creater
Boston Civil Rights Commission, and Citizens Housing and Planning Association.
CONSUMER PROTECTION AND ANTITRUST DIVISION
The Consumer Protection and Antitrust Division (CPAD) is the leading voice in the Commonwealth
for consumers disadvantaged by unfair or deceptive acts or practices in the marketplace. The division
enforces both state and federal consumer protection and antitrust laws by investigating and prosecuting
civil cases involving a wide array of issues. By aggressively enforcing the consimier and antitrust laws,
CPAD helps protect consumers from unethic.il business practices and insures that businesses compete
on a level playing field based on the best quality, service, and price.
CPAD dso promulgates consumer protection regulations, mediates consumer complaints against
businesses, and provides information to the public through the Attorne\' General's Consiuner Hotline,
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I'UBLIC PROTECTION BUREAU tXtNSUMER I'ROTECTION AND ANTITRUST DIVISION
advisories and information on tire Attorney General's Web site, distribution ot lirocbiircs on a nnmber
ot issues afFecting consiuiiers, and speaking engagements across the Coninionwealth.
Ill rough theC'onsiuiier ( 'oniiMaint and Information Section ((XilS), the division acts as a resource
for consumers anil businesses, prov iding information, direction to additional resources at the state and
federiii level, and free mediation services to consumers who have encountered a problem in a piuchase
of consumer goods or services. The division also provides grants to a statewide network of 1 9 Local
(Consumer Programs (LCP) and nine Face-to-Face Mediation Programs to frirnish information and
nutliation services. The inform.uion (-("IS and the l.("P gather is available to the division for review
uid evaluation for possible legal action. N4any cases the division has brought over the years have had
their genesis in CClS and the L.CP, and patterns of unfair or deceptive conduct reveiiled by these cases
also have served as the b.isis for draft legislation (identity theft, telemarketing fraud) and regulations
(travel services, long-term care facilities).
In addition to investigating and pro.secuting abuses within Massachusetts, the division also addresses
regional disparities, as well as consumer protection and antitrust issues that may have a nationwide
effect. Ihe division works closely with other states to investigate and file cases addressing unfair or
deceptive conduct, or antitrust issues, in areas such as predatory lending, privac)', health fraud, tobacco
s.iles, pharmaceutical pricing, and high-tech industries.
CPAD staff included Jesse Caplan, Division Chief; Diane Lawton, Managing Attorney; Melissa
Armstrong; Christopher Barry-Smith; Tiffany Bennett; ("aitlin Burke; Paul C^arey; Jack ("hristin;
(Christina (.iampolillo; April English; Julie Esposito; Mar\' Freeley; Sara Hinche)'; Jeremy Janow;
Stephanie Kahn; Brenda King; Mark Kmetz; Pam Kogut; Carmen I. eon; Betty Maguire; Mary Marshall;
Lois Martin; Rose Miller; David Monahan; limoth)' Moran; Julie Papernik; Anya Petroff; Jeffre\- Shapiro;
Andria Simon; Christine Sullivan; Thuy Wagner; Judith Wliiting; Bets\' "VCTiittey; Geoffrey "VCTiy; Marvina
Wilkes; and Mar}' Wollenhaupt. The following staff left the division before the end of Fiscal Year
2004: Paul ( iipro; Emily ("oleman; James DAmota; Jennifer Galante; Brian (Goodwin; Kenneth Miller;
Janis Dil.oreto Noble; Astrid Panameno; Jessica Roberts; and Ransom Shaw.
SIGNIFICANT CASE SUMMARIES
HEALTH CARE AND PRESCRIPTION DRUGS
• Commonwealth v. Medco Health Solutions. Inc. (U.S. District (!ourt, Philadelphia, \\\)
In April 2004, CPAD obtained two separate settlemeius against Medco Health Solutions,
resolving allegations that the company kept rebates owed to the state when it managed pharmacy
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PUBLIC ['ROTEC TION BUREAD CONSLJMER PROTECTION AND ANTITRUST DIVISION
benefits for the Ciroiip Insurance Commission, and that the company engaged in other imfair
and deceptive practices in connection with its "drug switching" or "therapeutic interchange"
programs. Medco is the worlds largest pharmacy benefit manager (PBM) and contracts with
health plans to inanage their prescription drug benefit programs, including purchasing drugs
from the pharmaceutical companies. In the Massachusetts-only false claims case, CPAD obtained
a Consent Judgment against Medco that required the company to pay the Commonwealth
$5.5 million in damages incurred when Medco failed to pass through to the Group Insurance
Commission "formulary rebates ' from the drug companies. In the second case, Massachusetts
joined Pennsylvania and Maine in leading a group of 20 states in resolving consumer protection
allegations against Medco for failing to disclose to consumers and physicians material information
about the negative financial impact of switching from one prescription drug to another. This
multi-state settlement required Medco to pay an additional $29.3 million to the states in
restitution and other payments. The settlement also set a new standard for sweeping reform of
the PBM industry. In total, Massachusetts received over $6.7 million as a result of these actions,
a portion of which will help fund prescription drug programs at communirv health centers
across the state.
• Bristol-Myers Squibb (BMS) Taxol Litigation (U.S. District Court, D.C.) In June 2002,
CPAD joined 28 other states in filing suit against BMS in connection with allegations that
BMS kept cheaper generic versions of its cancer drug laxol off the market by manipulating
U.S. Patent and Irademark Office processes to secure patents for its name brand drug that had
no legal validity. In April 2003, BMS entered into a Consent Judgment with Massachusetts
and all 49 other states resolving the lawsuit. BMS agreed to pay $55 million to state agencies
and consumers nationwide. In June 2004, 1 25 Massachusetts consumers received refund checks
totaling $68,000. In the second half of calendar year 2004, Massachusetts agencies and programs,
including Medicaid, the Department of Public Health, the Executive Office of Pharmacv'
Services, and the Group Insiuance Commission, will receive reimbursements totaling
approximately $1 million.
• Pharmacy Assessment Cases (Suffolk Superior Court) In April and Ma)- 2003. CPAD,
working with the Insurance Division, obtained Assurances of Discontinuance with four major
chain pharmacies — CVS Pharmacy, Inc., Stop & Shop, Walgreens, and Wal-Mart — resolving
claims that the pharmacies had violated state consumer protection and insurance laws by
misrepresenting to consumers that the so-called "Pharmacv' A.ssessinent" law. which imposed
fees on pharmacies based on the number of prescriptions filled, was a tax obligation on the
consumers, and improperly billing those consumers for this assessment. In June 2004, another
Assurance was obtained against Brooks Pharmacy, resolving similar claims. The Assurances of
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[■LiBLIC PROTECl ION BL'r<i:AU CONSUMLR PROTECTION AND ANTITRUST DIVISION
Discontinudncc followed the Attorney (leneral's investigation of, and warning letters to, the
pharmacies based on this conduct. Under the Assurances of Discominuance, the pharmacies
agreed to reimburse all atk-cted consimiers (rehinds totaling more than $6 million), and also
paid the Commonwealth monetar)- awards totaling S570,000 (C:VS-$300,()00; Brooks-$85,00();
Stop & Shop-$65,000; \X'algreens-$60,00(); W'iil-Mart-SGO^OOU). The pharmacies also agreed
to significant injunctive relief preventing future violations.
• Commonwealth v. Logan Healthcare Facility, Inc.. et al. (Suffolk Superior Ciourt) In
June 2003, CPAl), witli the assistance of the Department of Public Health, tiled suit against
the t)vvners and operators of five nursing home facilities located in the South Shore and
Southeastern Massachusetts, alleging that tliey grossly mismanaged the financial operations of
the nursing homes, putting the health and welfare of the facilities" 349 patients at risk. CPAD
also sought and successfully obtained the appointment of a temporary receiver over the nursing
homes, and a preliminan,' injunction against the defendants, all members of the Logan family,
preventing them from transferring an\' of their assets or the assets of the facilities. The
Commonwealths lawsuit resulted in the nursing homes being sold to new owners or closed,
and patients being transferred safeh' to new facilities.
ELDER PROTECTION
• Commonwealth v. David Johnston d/b/a Johnston Funeral Hoine (Ph'inouth Superior
Court, U.S. Bankruptcy Court) In August 2002, CPAD filed suit against David Johnston
d/b/a Johnston Funeral Home seeking restitution for at least 48 consumers who paid over
$140,000 in pre-need funenrl deposits after Johnston, in violation of state law, could not account
for those deposits. In December 2002, Johnston filed for bankruptcy protection. In June
2004, CPAD obtained a Consent Judgment against Johnston, which requires him to pay
$234,313 in restitution and attorneys fees.
• L.O. Paradis Funeral Home (Bristol Superior Court) In June 2003, the Southeastern
Massachusetts Office of the Attorney Ceneral setded allegations against the L.O. Paradis Funeral
Home in Fall River, requiring the funeral home owner and operator to refund more than
$480,000 to 1 14 residents for failing to account for and honor pre-need flineral contracts with
customers. In December 2003, more than $273,000 had been returned to customers.
CHILD PROTECTION
• Online Sales of Alcohol to Underage Students (Suffolk Superior Court) In early 2004,
CPAD and the Investigations Division, with the assistance of lociil colleges, conducted undercover
sting operations where underage college students were able to purchase alcohol from businesses
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PUBLIC PROTECTION BUREAL; CONSUMER PROTECTION AND ANTITRUST DIVISION
over the Internet. The college students assisting the Attorney General "s Office were able to
purchase beer, wine, and hard lic]uor from seven online businesses, and three different shipping
companies delivered the alcohol to these students without asking for any proof of age. As a
result of the sting operations, CPAD filed lawsuits in June 2004 against four of the online
retailers — Wine Globe, Sherry- Lehman, Clubs of America, and Queen Anne Wine Exchange
— and obtained orders enjoining them from continuing to sell alcohol to Massachusetts buyers.
CPAD referred the three shipping companies (UPS, FedEx, and DHL) and three additional
dealers (Geerlings & Wade, Wine.com, and The Wine Messenger) that held licenses to sell
alcohol in Massachusetts to the Alcohol Beverage Control Commission for form;il administrative
hearings.
• OnlineSalesof Cigarettes to Minors (Suffolk Superior Court) In September 2003, CPAD
filed lawsuits against three out-of-state Internet cigarette dealers for selling cigarettes to
Massachusetts teenagers without verif}'ing whether they were 18 years old — the legal age to
purchase cigarettes. The Internet dealers were dirtcheapcig.com; eSmokes, Inc.; and S4L
Distributing, Inc. A fourth Internet cigarette dealer, Broadway Smoke Shop of Salem, New
Hampshire, entered into an Assurance of Discontinuance, requiring it to pay $3,000 to the
Commonwealth and end its illegal sales. The lawsuits and settlement stemmed from an
undercover sting operation in which teenagers between the ages of 13 and 17, with the consent
of their parents, assisted the Attorney General's Office by buying cigarettes over the Internet.
None of the online dealers required the teens to provide a drivers license or other type of age
verification. The lawsuits also alleged that the dealers violated state law by failing to disclose to
consumers that they could be held liable to the state for cigarette taxes because the cigarettes
did not bear the Massachusetts excise tax stamp. In April 2004, the court entered a default
judgment against one of the online retailers, S4L Distributing, Inc., ordering it to pay civil
penalties and costs totaling close to $1.5 million.
• In Re Wal-Mart Stores (Suffolk Superior Court) In September 2003, CPAD joined 42
other states in obtaining an Assurance of Discontinuance against Wal-Mart that required the
company to implement new policies and procedures to reduce tobacco s;tles to minors. The
agreement affects all 46 Wal-Mart and Sam's Club stores in Miissachusctts, and follows similar
agreements reached with the Walgreens drugstore chain and Exxon Mobil Corporation. It also
required Wal-Mart to pay the C'ommonwealth close to $10,000.
• Online Sales of Illegal Fireworks (Suffolk Superior C^ourt) In June 2002, and again in
June 2003, CPAD conducted undercover sting operations whete investigators from the
Investigations Division were able to purchase illegiil fireworks from companies over the Internet,
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PUBLIC PROTECTION BUREALi CXiNJSUMKR PROTECTION AND ANTITRUST DIVISION
and ro have them delivered to addresses within Massachusetts. Botli investigations resiiked in
lawsuits being hied against five oiit-ot-state tlieworks dealers.
• OnLine Sales of Anirminition (SuUolk Superior (^ourt) In October 2003. (d'Al) filed
lawsuits against five out-ot-state ainnuinition dealers for illegally selling amnumition o\er the
Internet to Massachusetts residents. The lawsuits resulted from undercover sting operations
conducted by the Investigations Division. State law requires that dealers be licensed to sell
ammunition and prohibits the sale of ammunition to minors or those without a permit. None
of the companies held the proper state license, noi did they take the rec]uired steps to verify that
the purchasers were authorized under state law to buy ammunition. All five de.ilers entered
into Consent Judgments resolving the allegations, and each paid a $2,500 penalty.
• Commonwealth v. Great Lake Camp, Inc. d/b/a Quabbin Camps (Worcester Superior
Court) In November 2003, CPAD obtained a Consent Judgment against George Deren and
Charles Sub, co-hiunders ot Quabbin Camps in Hardwick, Ma.ssachu,setts, tor defrauding parents
that had paid to send their special needs children to the camp, only to be told at the last minute
that the camp would not be opening and that the consumers would not receive refunds. Ihe
Attorney General's Central Massachusetts Office originally filed the case in February 2002. As
a result of the Attorney General's action, in February 2004, more than 40 families received
refund checks totaling $140,000.
PROTECTION OF 1MMIGR./\NTS AND MINORITIES
• Commonwealth v. William Ansara and Greater Lowell Immigration Services Center
(Suffolk Superior Court) In September 2003, CPAD filed a lawsuit against William Ansara,
conducting btisiness as Greater Lowell Immigration Services Center, lor defrauding local
immigrants seeking legal assistance with immigration and labor proceedings. The lawsuit alleged
that Ansara, who is not a lawyer, failed to perform much of the immigration- and labor-related
services his immigrant clients paid for. In some ca.ses, he forged or altered government doctmients
and converted, for his own use, client checks meant for the Immigration and Natur;ilization
Service. Ansara simultaneously agreed to a Consent Judgment resolving the claims. The
judgment requires Ansara to pay at least $51,000 in restitution to consumers, and prohibits
him from engaging in future immigration-related work in Massachusetts.
• Commonwealth v. Joseph Hai Nguyen and Stelios Vavlitis (.Suffolk Superior Court) In
February 2003, CPAD filed a consumer protection action alleging that Joseph Hai Nguyen
and Stelios Vavlitis targeted Vietnamese-speaking home buyers in a mortgage and real estate
brokering scam by exploiting the language barrier facing Vietnamese property bu)'ers and their
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I'UBLIC PROTECTION BUREAU CONSUMER PROTECTION AND ANTITRUST DIVISION
unfamiliarit}' with mortgage financing; illegally holding themselves out as mortgage lenders,
mortgage brokers, and real estate brokers; inducing the consimiers to pay thousands of dollars
in advance fees; and then failing to arrange financing as promised. In June 2004, Nguyen
entered into a Consent Judgment in which he agreed to reimburse consumers and pa\' an
additional S4,000 penalt)'. CPAD continues to litigate against Vavlitis.
INTERNET AND HIGH TECH
• Commonwealth v. Mainline Airways and Luke R. Thompson (Suffolk Superior Court)
In June 2003, CPAD filed suit against Mainline Airways and its principal, Luke R.Thompson,
alleging that Thompson defrauded consumers by selling them discounted flights between Los
Angeles and Honolulu on a non-existent airline he called "Mainline Airways." Thompson
used an elaborate Web site and online booking system to perpetrate the fraud. In August 2003,
a preliminary injunction was entered, effectively shutting down the Mainline Airways operation.
• Commonwealth v. Clockworks.com (Suffolk Superior Court) In December 2003, CPAD
filed suit against Clockworks. com ol Westfield, Massachusetts, and its owner, James Stoudenmire,
for unfair and deceptive practices in connection with offering watch and clock repairs and
supplies. The lawsuit alleged that Stoudenmire failed to deliver the products advertised on his
Web site to at least 126 consumers in Massachusetts and 40 other states.
PRIVACY AND IDENTITY THEFT
• Commonwealth v. TracerSer\aces.Com (Suffolk Superior Court) In February 2004, CPAD
filed suit against Tracer Services, Inc., and its principals lor operating a Web site,
TraccrServices.com, that sold personal financial information about individuals ranging from
social securit)' numbers to credit reports to bank accoimt statements — without the knowledge
or consent of the targeted individuals. Ihe lawsuit resulted horn an undercover investigation
where an investigator with the Investigations Division bought from i'racerServices.com the
social security number, credit report, and banking information of an Assistant Attorney Ceneral.
The lawsuit alleged that the sale of this intormation violated both state and federal law, including
the Fair Credit Reporting Act, the Massachusetts Consumer Credit Reporting Act, and the
Gramm-Leach-Bliley Act. The information obtained could, in the wrong hands, be used to
steal someone's identit)', and then to open credit cards in someone else's name. CPAD successfiilly
obtained a preliminary injunction preventing the compan)' from selling such intormation about
any Massachusetts resident, or to any Massachusetts resident, in the future.
CONSUMER CREDIT AND PREDATCmY LENDING
• Commonwealth v. Household International (Suffolk Superior Court) In December
2002, CPAD, working with the Massachusetts Division of Banks and Attorneys Ceneral and
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I'UBLIC PROTECTION BL.'RLAU CONSl'MLR PROTECTION AND ANTITRUS T DIVISION
banking regulators in other states, filed suit against Household International, also known as
Household Finance C'orporaiioii and Beneficial Finance (Household), for violations of state
consumer protection and banking laws. I he lawsuit allcgcil that Householtl, one of the nation's
largest mortgage coni[ianies, defrauded consumers by, among other things, charging higher
interest rates than promised, adding costly prepayment penalties, and providing deceitful
information about insurance policies. Simultaneous with the filing of the lawsuit, the states
obtained Consent Judgments that resolved the allegations. Under the settlement with the
states. Household agieed to pay $484 million in restitution nationwide — the largest consumer
lending settlement ever. Household also agreed to injunctive relief that significantly changes
the way the company does business. In December 2003, close to 11,000 Massachusetts
consimicrs received refunds totaling SI 3.3 million.
• Commonwealth v. Cambridge Credit Counseling Corp., et al. (Suffolk Superior Court)
In April 2004, CPAD and the C^harities Division filed suit against Cambridge Credit Counseling
Corporation (Cambridge), and its controlling directors and officers, including John and Richard
Puccio, for breaches of fiduciar\' obligations and unfair and deceptive practices under
Massachusetts charities and consumer protection laws. Cambridge is an Agawam, Miissachusetts-
based nonprofit credit counseling charity. The lawsuit alleges that Cambridge and several of its
directors and officers funneled more than S60 million of the charity's assets to for-profit
companies owned by insiders, including the Puccios, and also misled thousands of consumers
about the benefits of joining its credit counseling program. The lawsuit seeks, among other
relief, to remove the Puccios from the charity, to void improper related-party contracts, to force
the defendants to disgorge their ill-gotten gains, and to pay restitution to consumers.
• Commonwealth v. Ford Motor Credit (Suffolk Superior Court) In June 2004, CPAD
joined Attorneys General in 36 states in filing suit against Ford Motor Credit, alleging that the
company committed unfair and deceptive practices in connection with Ford's "Red ("arpet "
lease program. The lawsuit alleged that Ford Motor Credit and certain Ford and Lincoln-
Mercury' dealers quoted consumers inflated lease pay-off amounts, and as a result, consumers
paid more for their lease pay-offs than they should have. Simultaneous with the filing of the
lawsuit. Ford Motor Credit and the dealers entered into a Consent Judgment that returns $100
each to approximately 400 qualified Massachusetts consumers that leased cars under the program.
TELEMARKETING
• Commonwealth v. Integrated Credit Solutions, Inc., and Flagship Capital Services. Corp.
(U.S. District Court, Massachusetts) In December 2002, CPAD filed an enforcement action
against the two telemarketing companies. Integrated Credit Solutions (ICS) and Flagship Capital
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PUBLIC PROTECTION BURCALi CONSUMER PROTECTION AND ANTITRUST DIVISION
Services, Corp., alleging that they violated the federal Telephone Consumer Protection Act and
state consumer protection laws by using pre-recorded telephone messages to deceptively induce
thousands of consumers to pay exorbitant "enrollment" and "education" fees to obtain "non-
profit" credit counseling services. According to the complaint, ICS unlawfully delivered as
many as 1 20,000 pre-recorded messages to Massachusetts residents in a single day, and collected
over $ 1 million in unlawful fees from Massachusetts consumers. In May 2004, CPAD obtained
a Consent Judgment against K^S requiring the telemarketer to pay more than $600,000 in
restitution to approximately 2,600 Massachusetts consumers that paid for credit counseling
services marketed through ICS. The judgment also required ICS to pay a $50,000 penalt)' to
the Commonwealth, and prohibits ICS from collecting up-front fees from consumers, and
from using pre-recorded messages that solicit any money payable to ICS.
• Commonwealth v. Allied Mortgag e (Suftolk Superior Court) In December 2003, CPAD
filed suit against Allied Mortgage, alleging that the Texas-based mortgage broker violated state
and federal telemarketing laws, including the federal Telephone Consumer Protection Act and
the Massachusetts Do Not Call law, by unlawfi.illy sending unsolicited pre-recorded phone
messages to hundreds ol Massachusetts consutTiers, including consumers who had placed their
phone numbers on the newly established Massachusetts Do Not Call registry. Simultaneous
with the filing of the lawsuit, CPAD obtained a Consent Judgment against the company,
requiring it to pay $65,000 to the Commonwealth and to abide by both state and federal
telemarketing laws.
OTHER CONSUMER PROTECTION
• Commonwealth v. Americar Superstore (Suffolk Superior Court) In July 2003, CPAD
filed suit against a Tewksbun,' auto dealership, Americar Superstore, alleging that the dealership
and its owners engaged in a pattern ol unfair and deceptive practices in the sale and servicing of
used motor vehicles. The complaint alleged that the defendants failed to honor warranties,
failed to promptly provide vehicle titles, failed to return customer deposits, and made
misrepresentations to consumers about cars available for sale. Simultaneously with the filing of
the lawsuit, CPAD obtained a Consent Judgment that requires the dealership to make restitution
to injiued consiuners, to pay $45,000 in civil penalties, and to change its business practices
going forward. This was the second action by the Attorned' Cenerals Office against the de.ilership.
. In April 1997, Americar Superstore entered into a Consent Judgment settling unrelated
allegations pertaining to the used car lemon law.
• Commonwealth v. Riverside Mitsubishi, et al. (Worcester Superior Court) In December
2003, the Attorney General's Central Massachusetts Office, with the assistance of CPAD, filed
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PUBLIC PROTECTION BUREAU CONSUMER PROTECTION AND ANTITRUST DIVISION
suit against Rivcrsiclc Miisubisiii, an ALiburn, Massachusetts car cicalcrsliip, aiui its owners aiul
opeiaiois, ibdtl, Daiyl, anJ Hienda Rivernider. The Attorney Cieneral's lawsuit alleged tliai
the dealership and the l^iveniidcrs defrauded well over 100 consumers b\- failing to pay off
outstanding trade-in loans on cars, hilling to provide consiuners with titles to cars they bought,
and in some cases, failing to deliver cars at all, when the dealership abruptly closed its doors in
November 2003. The Attorne\- General's (Office immediately obtained coiut orders to freeze
the defendants' assets, hi May 2004, as a result of new actions brought by the Attorney Cleneral's
OfTice, lOaryl and Brenda Rivernider were foimd in contempt of court for selling and otherwise
transferring certain assets without court approval. The Attorney General's Oftke is coruinuiiig
to litigate this case to obtain restitution for consumers as well as civil penalties, costs, and
injunctive relief.
• Commonwealth v. Car Center USA, et al. (Suffolk Superior Court) In March 2004,
C^PAI) filed suit against four North Shore used car dealerships and their principal owners,
alleging that they defrauded consimiers our of himdreds of thousands of dollars bv failing to
pay oft outstanding trade-in loans on cars, failing to timely deliver car titles to consumers, and
failing to purchase or activate extended warranties purchased b}' consumers. CPAD also obtained
preliminary' court orders that significantly restricted the dealerships' practices. The dealerships
and individuals subject to the lawsuit include Car Center USA, Suzuki of Boston, Foreign Cars
North, Cars R Us, and their principals, Nader and Ardeshir Jamali AfFoussi. CPAD is continuing
to litigate this case to obtain restitution for consumers as well as civil penalties, costs, and
injunctive relief
• Commonwealth v. Adventure World RV. Inc.. et al. (Middlesex Superior Court) In Ma\'
2004, the Attorney General's Central Massachusetts Office, with the assistance of CPAD, filed
suit against Adventure World RV, Campers Inn of Ayer, and owner David Hirsch, for defrauding
dozens of consumers out of at least $2 million in connection with the sale of recreational
vehicles (RVs). The lawsuit alleged that the RV dealership, located in Shirley, Massachusetts,
failed to pay off outstanding loans on RVs that consumers traded in, failed to provide titles to
RVs sold to consumers, and failed to deliver extended warranties or complete repairs as promised.
The Attorney General's Office successfully obtained preliminary court orders freezing the
company's assets. The ca.se continues to be litigated.
• Commonwealth v. Boston Fitness LLC (d/b/a Gold's Gym Downtown Crossing ) (Suffolk
Superior Court) In June 2004, CPAD filed suit against Boston Fitness LLC, doing business as
Gold's Gym Downtown Crossing in Boston, and its owner, Marc Orlandella, for nmltiple
violations of the Massachusetts Consumer Protection Act and other laws regulating health
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PUBLIC PROTECTION BUREAU CONSUMER PROTECTION AND ANTITRUST DIVISION
cluhs. The Attorney General's lawsuit alleges that, among other violations, Orlandella and
Clold's Gym took thousands of dollars in membership fees from consumers and then refused to
refund these fees when the club failed to open as advertised. CPAD continues to litigate this
case.
• C ommonwealth v. Global Marketing. LTD and Dennis Drummond (Suffolk Superior
Court) In December 2003, CPAD filed suit against Global Marketing, LTD, its principals,
Dennis and Linda Drummond, and related entities, for defrauding as many as 90 consumers
out of hundreds of thousands ot dollars in connection with the marketing and sale of vacation
time-shares. The Commonwealth also obtained preliminar)' coui t orders against the defendants,
freezing their assets and prohibiting them from continuing to sell time-share properties. This
case constitutes the second lawsuit brought against the Drummonds by the Attorney Generals
Office. In 1990, a judgment was entered against them for over $200,000 in connection with
similar fraudulent sales of time-share properties. CPAD continues to litigate this case, seeking
restitution, penalties, and costs.
• Commonwealth v. lames Brien and American Sunroom Company (Suffolk Superior Court)
In February 2004, CPAD filed suit against the American Sunroom Company and its owner,
James Brien of Andover, Massachusetts, tor defrauding close to 100 consumers out of nearly $ 1
million in connection with the sale and installation of sunroom additions to their homes. The
lawsuit alleged that Brien and American Sunroom routinely solicited deposits of $15,000 to
$28,000 hom homeowners and then htiled to purchase or deliver the simrooms — instead
converting consumers' funds for Briens own personal use. CPAD also obtained preliminary
court orders against Brien, freezing his personal and corporate assets, and prohibiting him from
selling sunrooms in the future. CPAD continues to litigate this case, .seeking restitution, penalties,
and costs.
• Commonwealth v. Gaetano 1. Scarpaci and Scarpaci Waterproofing. Inc. (SuHolk Superior
Court) In January 2003, C]PAI3 filed an enforcement action against Gaetano Scarpaci and
Scarpaci W;iterproofing, alleging that Scarpaci used deception to procure home improvement
contracts from consumers and then violated consumer protection laws and regulations by. among
other things, requiring unlawfully large deposits from consumers, performing shodd)' and dilatory
work, failing to complete projects, and then threatening or intimidating consumers who
complained about him. In Februar)' 2003, Scarpaci filed for bankruptcy protection, and in
March 2004, CPAD obtained a Consent Judgment that required Scarpaci to pay restitution to
consiuiiers, and permanently enjoined him from conducting any future home contracting
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PUBLIC PROTECTION BUREAU CONSUMER PROTECTION AND ANTITRUST DIVISION
business. CPAD's civil case followed the Auorney (leiieral's siiccessful ciiiiiinal prosecution
against Scarpaci in 2002.
• Commonwealth v. Francis P. Beilotti. Jr. and Insurance Restoration Services. Inc. (Suffolk
Superior Court) In June 2003. CPAD filed an enforcement action against Francis P. Beilotti,
Jr.. a South Attleboro contractor, for defrauding at least 1.3 fire victims. According to the
lawsuit, Beilotti would rush to house fhes, use high-pressure tactics to get the homeowners to
contract for his restoration .services, and then have them sign over their insurance checks. Beilotti
would then fail to complete the work or abandon the projects, leaving man\' homeowners
living in trailers or other accommodations for a \'car or longer. The lawsuit seeks consumer
restitinion, penalties, and injunctive relief. In Jul\' 2003, CPAD obtained a preliminary
injunction order that prohibits Beilotti from destroying records and freezes his assets for any
purpose other than necessai^' expenses. Trial is scheduled for 2005.
• Stop &L Shop Supermarket Company In October 2003, as a result of joint United States
Department of Agriculture (USDA) and CPAD investigations, Stop & Shop agreed to pay
$25,000 to the Commonwealth and to refrain from falsely using the USDA shield in its
advertisements and circulars. In October 200 1 , Stop & Shop paid the Commonwealth $95,000
to resolve allegations that the Quincy-based supermarket chain had falseh' advertised a brand of
chicken with a USDA "Grade A" shield. A later investigation by the USDA and the Attorney
Generals Office found that the supermarket had falsely used the shield "USDA Choice" in
advertising veal. In resolving the more recent allegations. Stop &: Shop also agreed to follow a
compliance plan and a scries of checks to prevent future misstatements in its advertising.
ANrriRusi
• Microsoft Antitrust Litigation (U.S. Court of Appeals, D.C./U.S. District Court, D.C.)
In 1998, Massachusetts, a number of other stares, and the Department of Justice filed suit
against Microsoft Corporation, alleging that the coinpan\' violated the antitrust laws b\-
monopolizing the operating systems market and other predatory practices. On June 28, 2001 ,
the D.C. Circuit unanimously affirmed the trial courts finding that Microsoft had engaged in
illegal monopolistic practices, but vacated the trial court's decision to break up the company,
and remanded to the trial court for further proceedings on remedies. In November 2001, DOJ
and nine states (the "settling" states) agreed to a proposed settlement with Microsoft.
Ma.ssachusetts and nine other states (the "litigating " states) refiised to settle the case, and filed
their own remedies proposal with the court. On November 1, 2002, after a 32-day evidentiar)'
trial on an appropriate antitrust remedy, the trial court issued orders essentially imposing the
remedy negotiated by DOJ and the settling states. On November 29, 2002, Massachusetts
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PUBLIC PROTECTION BUREAU CONSUMER PROTECTION AND ANTITRUST DIVISION
announced that it was appealing the remedies decision to the D.C. Circuit. The remaining
'litigating" states did not appeal the remedies decision. Oral arguments in the Massachusetts
appeal were heard on November 4, 2003, and on June 30, 2004, the D.C. Circuit affirmed the
trial court's decision on an appropriate remedy. This ended the litigation against Microsoft,
and C^PAD will work with the states and DOJ to ensure Microsoft complies with the court's
remedies order.
On December 13, 2002, Massachusetts filed its motion tor attorneys' fees in the district
court. On September 22, 2003, the trial court ordered Microsoft to pay Massachusetts $967,0 14
for legal fees incmred by the Attorney Cenerals Office in pursuing its antitrust case against
Microsoft.
• CD Antitrust Litigation (U.S. District Court, ME) In November 2000, CPAD joined
over 40 other states in filing an antitrust lawsuit against major record companies and music
retailers, alleging an illegal conspiracy to prevent discounting in the sale of music CDs. In
September 2002, the states announced the entry of a Consent Judgment against the record
companies and music retailers that settled the lawsuit and would result in nationwide consumer
restitution in excess of $67 million, and the distribution of over 5 million free CDs to public
libraries and/or other state entities across the country. In February 2004, approximately 68,000
Massachusetts consumers received reftmd checks totaling over $950,000. In June 2004, over
124,000 music CDs were shipped to 488 Massachusetts public libraries and branches across
the state.
• Commonwealth v. Oracle Corp. (U.S. District Court, San Francisco, CA) In Februarj'
2004, CPAD joined the Department of Justice and five other states in bringing an antitrust
lawsuit against Oracle Corp. to block its hostile takeover of rival software compan)', PeopleSofr
Inc. Oracle and PeopleSoft are two of the largest designers of "enterprise" software systems that
automate financial and human resource management functions for government and large
organizations. The lawsuit alleged that the proposed acquisition of PeopleSoft by Oracle would
substantially reduce competition and ultimately hurt consumers in Massachusetts and across
the country. Trial commenced in Jime 2004.
• Commonwealth v. First Data Corporation and Concord EFS (U.S. District Court, D.C.)
In October 2003, CPAD joined the Department of Justice and eight other states in bringing an
antitrust lawsuit to block the merger of First Data Corporation (First Data) and Concord EFS,
each of which owns competing bank PIN debit networks. First Data owns the NYCE network
and Concord owns the STAR network, which together accounted for over $4 billion in revenues.
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IH'BLIC PROTECTION BURLAU c:ONSUMER PROTECTION AND ANTITRUST DIVISION
Tlie lawsuit alleged that the merger would substantially reduce eoinpetition and would result
in consumers pa\'ing higher prices tor goods and services from merchants that otter debit
transactions through these networks. On December 15, 2003, on the day the case was to go to
trial, the two companies settled the case by agreeing that First Data would divest its entire
interest in the NYCE network.
STATISTICAL SUMMARY
Penalties/Costs/Othcr Money Returned to the Commonwealth $ 8,159,807
Consumer Restitution Recovered
CPAD $16,255,953'
CCIS $ 442,533
Local Consumer Programs $ 3,591,960
Consumer Hotline Calls
CCIS 71,189
Local Consumer Programs 55,947
Consumer Complaints Received
CCIS and Local Consumer Programs 13,153
Consumer Complaints Mediated
CCIS 1,272
Local Consumer Programs 7,271
' This restitiitioii figure does not include the 124,000 music CDs that were shipped in June 2004 to 488 Massachusetts
public libraries and branches pursuant to the Compact Disc litigation settlement.
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PUBLIC PROTECTION BUREAL' CONSUMER PROTECTION AND ANTITRUST DIVISION
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
AtHtcus Curiae In addition to signing on to amicus curidc briefs sponsored by other state Attorneys
General in a number of matters, including supporting the constitutionaHt}' of the federal "Do Not
Call" law and advocating for consumers in banking matters, CPAD wrote and submitted rwo amicus
curiae briefs to the Massachusetts Supreme Judicial Court:
• Mulhern v. MacLeod . 441 Mass. 734, 808 N.E.2d 778 (May 21, 2004) CPAD filed an
amicus curiae brief in support of the position that individuals may bring private actions in
Massachusetts state court against telemarketers who violate the federal lelephone Consimier
Protection Act (TCPA). CPAD's brief, filed in Februan,' 2004, argued that no specific state-
enabling legislation was needed in order for a private plaintiff to initiate suit against a company
tor sending unsolicited faxes in violation ofthelCPA. On May 21, 2004, the .Supreme Judicial
Court agreed, reversing the decision of the Superior Court and remanding the case for further
proceedings.
• Darviris v. Petros , SJC-091 82 (argued April 8, 2004) CPAD filed an amicus curiae brief in
support of the position that a violation of the Attorney Generals Consumer Protection
Regulation, 940 C.M.R. .3.16(3). is a/frjf violation of the Massachusetts Consumer Protection
Act, M.G.L. c. 93A. The court below, in dismissing a patient's claim under c. 93A against her
surgeon, held that the patient had to prove underlying unfairness or deception by her doctor,
nor just that the doctor's conduct violated an existing consumer protection law or regulation —
in this case a state law rec]uiring informed consent. CPADs briefs, filed in February' and March
2004, argued that the court below had erred on this point of law, and asked the Supreme
Judiciid Court to clarifi' that violations of other consumer protection laws and regulations
constitute violations of c. 93A, or to affirm the decision below on different grounds. The Ciisc
was argued on April 8, 2004, and is expected to be decided in August 2004.
Department of Social Services (DSS) Appeals Several CJPAD attorney's also a.ssisted the (iovernment
Bureau by successfully handling appeals in challenges to court decisions upholding DSS determinations
to terminate parental rights in connection with abused or neglected children.
TOBACCO
Cigarette Advertising and Sales Targeted to Minors In September 2003, and again in March
2004, the Attorney General's Office joined other states across the country in asking Congress to pa.ss
the Prevent All Cigarette Trafficking Act (PACT Act), targeting Internet and other mail-order tobacco
retailers. In November 2003, CPAD announced a multi-state agreement with four major tobacco
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['LIBLIC PROTECTION BL'RCAU CONSUMER PROTECTION AND ANTITRUST L-)IVISION
companies — Brown & Williamson, Philip Morris, R.J. Reynolds, and U.S. .Smokeless Ibbacco C!o.
— that requires them to remove all their advertising from magazines sent to schools, like Time, Newsweek,
and U..S. News & World Report.
Other Efforts to Reduce Smoking C'l'AD took additional actions, t>ften in coordination with
other states and the National Association of Attorneys Cieneral, to reduce the availability ot cigarettes
and to reduce smoking. In August 2003, Massachusetts joined a multi-state letter to the Motion
Picture Association of America calling on the industry to restrict the depiction of smoking in movies.
In C )ctober 2003, Ma.ssachusetts joined other states in asking NASCL^R to end all tobacco sponsorships.
In July 2003, CPAD awarded $90,000 hom the Local Consumer Aid Fund to four local tobacco
control programs. The money had been paid by CVS Corp. to satisfy a Consent Judgment entered
after CVS was found to have violated an earlier Assurance of Discontinuance relating to its tobacco
sales practices. The funded programs conducted educational activities at local stores and reported
violations of tobacco laws and regulations.
The Tobacco Master Settlement The Commonwealth received $251,084,195 in April 2004, as
its share of the Annual Payment under the 1998 Tobacco Master Settlement Agreement, and another
$2,537, 1 10 in October 2003, in back MSA payments from Premier Manufacturing, Inc., bringing the
total amount received to more than $ 1 .4 billion. CPAD closel)' monitored and enforced the settlement
to ensure that the Commonwealth received the full amounts due under the agreement. The Attorney
CeneraJ also reported quarterly to the legislatine on MSA payments, under C.L. c. 29D, § 3(i).
Non-Participating Manufacturer (NPM) Enforcement In Ma)' 2004, the Massachusetts state
legislature enacted a new law initiated b\' Attorney ( Jeneral Pom Reilly and sponsored by Representative
Daniel Bosle\' and Senators Stanley Rosenberg and Richard Moore that strengthens existing law requiring
tobacco companies that are not participants in the Master Settlement Agreement ("non-participating
manufacturers" or "NPMs") to deposit funds into an escrow account as funds to be used to recover
smoking-related health costs. LInder the new law, NPMs are required to appoint a Massachusetts agent
and cannot sell cigarettes in Massachusetts until and unless an escrow account has been established,
funds are deposited, and all cigarette brands sold in the state are listed on a directory. CPAD continued
to litigate cases previously filed against cigarette manufacturers that did not comply with the states
NPM Escrow Law (C.L. c. 94E). Massachusetts also continued to participate with Attorneys General
in other states in defending litigation brought to challenge the NPM enforcement activities of those
states.
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PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION DIVISION
OUTREACH, EDUCATION, AND TRAINING
Consumer Protection Education/Advisories CJPAL), in some cases in coordination with other
divisions within the Attorney General's Office, issued consumer brochures and advisories on pressing
consumer issues such as: identity theft; credit counseling; prescription drug discount plans; cross-
border telemarketing and lottery scams targeting seniors; counterfeit check schemes; and nursing home
patient transfer restrictions. CPAD also helped publish or update a number of Attorney General
consumer guides and brochures, including the Massachusetts Cttide to Cable Rights, the Attorney Geneml's
Guide to the Internet, and Privacy Rights and Protections. CPAD, particularly through the efforts of the
Consumer Complaint and Information Section (CCIS), also sponsored a series of National Consumer
Week initiatives in February 2004.
Consumer Complaint and Information Section (CCIS) CCIS provided consumer information
on all manner of issues by responding to over 71,000 telephone calls to the Consumer Hotline,
responding to letters, distributing brochures, and through public speaking engagements. CCIS also
responded to approximately 234 public records requests from the press and consumers seeking complaint
information against specific businesses. Staff members also participated in National Consumer Week
activities in February 2004 by, among other things, providing consumers at several MBTA stations
with brochures on various consumer protection issues and with consumer complaint forms.
CPAD Attorneys CPAD attorneys participated as speakers and panelists in consumer education
events, as well as in industry seminars and forums, on numerous issues such as identitv' fraud, Internet
safety, predatory lending, manufiictured housing, telemarketing fraud, and other consinner protection
issues.
ENVIRONMENTAL PROTECTION DIVISION
The F.nvironmental Protection Division (EPD) serves as litigation coimsel on environmental issues
for various state agencies, particularly those within the Executive Office of Environmentiil Affairs. t'PD
handles the Commonwealths civil litigation to enforce environmental protection programs established
by state statutes and regulations, including laws governing air pollution, water pollution, water supply,
waterways, wetlands, and hazardous and solid waste. EPD also plays a key role under the Clean State
Initiative to ensure that the Commonwealths own agencies abide by state and federal environmental
laws, 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 Offices
broad authority to prt)tect the enviroimient of the ("onimonwealth. EPD initiates and intervenes in
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PUBLIC I'ROTECTION BL'REAH KNVIRONMLN TAL I'ROTIiCnON DIVISION
srarc and federal litigation, and participates in administrative proceedings before federal agencies on
significant environmental issues. HPD defends lawsuits challenging the actions of state environmental
agencies and the legalit}' of state environnienial laws.
FPD staff included James R. Milkev, Division ("hiet; Frederick Aiigtnstcrn; Matthew Brock; Nora
Chorovcr; Carolyn Edwards; Benjamin Ericson; James Farrell; 1. Andrew Goldberg; Nancy (Betsy)
Harper; Carol lancu; Matthew Ireland; Eleanor Johnson; Siu lip Lam; Trevor Murray; William Pardee;
Amy Pinabella, Dawn Stolfi StaJenhoef; and Danah Tench.
SIGNIFICANT CASE SUMMARIES
STATE AIR POLLUTION LAW.S AND RECULATIONS
• Waters Technology Corp. This case involved significant air pollution violations by a
companv in Taunton. EPD obtained a settlement that included an injunction requiring full
compliance, a record civil penalt\' ot S5.9 million, and a $600,000 Supplemental Environmental
Project.
• Trigen In a case involving monitoring and reporting violations at a power plant in Boston,
EPD obtained a settlement requiring full compliance and a civil penalty ot $210,000 (one
third of which can be waived if the company stays in full compliance).
• Gitto Global EIPD continued the prosecution of its case against Gitto Global Corp., a
plastics manulacturer's facility' in I.unenbtirg. In this Ciise, EPD alleged that the company violated
various state environmental laws, including bvp.issing its air pollution control ec]uipment. In
Fiscal Year 2004, EPD obtained a settlement requiring full compliance, significant lead reduction
measures that go beyond compliance, and a $225,000 penalty.
• Power Plants In May 200 1 , the L^epartment of Environmental Protection (DEP) adopted
new emissions standards for the six older power plants in Massachusetts. Fd'D continued its
defense of a challenge to those regulations filed by the owner ol one of the affected power
plants.
NATIONAL AND REGIONAL AIR POLLUTION ISSUES
• Global Warming/Climate Change Attorney General Reilly continued his leadership role
in seeking to address the problem of global warming. On August 28, 2003, the U.S.
Environmental Protection Agency issued two rulings declining to regulate greenhouse gases
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PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION DIVISION
under the federal Clean Air Act. 1 he Office spearheaded a challenge to those rulings in
Commonwealth of Mass. v. EPA in the D.C. Circuit Court of Appeals. Sixteen states or other
governmental entities and 14 national or regional environmental groups joined in the challenge.
EPD filed its opening brief on June 22, 2004.
• Mercury Emissions In Januar)' 2004, the federal EPA issued proposed standards for the
emission of mercur)' from power plants. Power plants are the largest source of mercury, which
poses serious neurological risks, especially to children and pregnant women. EPD submitted
comments denouncing this proposal as inadequate and inconsistent with the requirements of
the Clean Air Act.
• New Source Review EPD continued to play a significant role in a multi-state and EPA
enforcement action against a large Ohio-based power company for upgrading plants without
installing Best Available Control Technolog}' as required by the New Source Review (NSR)
provisions of the federal Clean Air Act. During Fiscal Year 2004, significant discover)' in American
Electric Power continued. In the meantime, EPD continued its efforts working with other
states to challenge various proposed regulatory changes that EPD believes will significantly
weaken the NSR program. On December 24, 2003, the D.C. Circuit issued a stay enjoining
EPA from implementing the most significant regulatory change that it had proposed.
• Other Interstate Air Pollution Litigation On April 9, 2004, the D.C. Circuit issued a
ruling in two related cases ( American Electric Power v. EPA ; State of Michigan v. EPA) involving
the interstate transport of pollutants that cause smog. The court upheld the efforts of EPA to
address these problems through an interstate emissions trading program. Ihe Attorney General
led the efforts of northeastern states that had intervened in support of EPA. Together with
other states, EPD also submitted an amicus brief in support of EPA in Alaska Dept.
Environmental Conservation v. EPA , 540 U.S. 461 (2004), a case involving the extent to
which EPA could curtail state permitting decisions that it found too hix. The Supreme Court
upheld EPA's position by a 5-4 ruling. Finally, F^PD submitted comments to EPA challenging
certain aspects of the agencys proposed interstate air pollution regulations.
ENERGY CONSERVATION
Massachusetts, other northeastern states, and public interest groups obtained a significant ruling
from the Second Circuit Court of Appeals overturning the federal Department of Energy's (DOE's)
decision to roll back energy efficiency standards that the Department of Energy had set for central air
conditioners and heal pumps. NRDC v. Abraham , 355 F.3d 179 (2nd Cir. 2004).
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I'L.'BLIC PROTECTION BL'READ ENVIRONMENTAL I'ROTECITON DIVISION
ENFORCEMENT OF OUR HAZARDOUS AND SOLID WASTE DISPOSAI.
AND MANACEMENr LAW'S
Under G.L. c. 21 E, the Attorney General is charged with the responsibility of recovering
Commonwealth funds spent on the clean up ot hazardous waste sites. Where possible, EPD enters into
settlements with the parties responsible for the contamination in order to obtain their agreement to
clean up the site, rather than pursuing a cost-recover)' action alter the state has stepped in U) clean up
the contamination. Ihis saves the Commonwealth money upfront, and results in the etficient
administration of site clean ups. EPD also enforces our hazardous and solid waste management laws to
prevent environmental contamination from occurring in the fust place.
• Starmet EPD continued its case against Starmet C!orp. (formerh* known a.s Nuclear Metals),
a ct)mpanv that manufactures armor-piercing bullets and other munitions from spent radioactive
fuels at a site in Concord. EPA has placed the site on the National Priority List. While the site
itself is contaminated, there are also some 3,800 barrels of radioactive materials that essentially
have been abandoned at the site. EPD assisted the state Department of Environmental Protection
in finalizing a settlement (that EPD signed as to the a covenant not to sue) under which the
.Armv will agree to fund over $5 million for the removal of the barrels.
• MBTA EPD obtained a consent decree resolving its suit against the MBTA regarding
significant lead and arsenic contamination at the Readville Yard. In its complaint, EPD alleged
that the MBTA failed to clean up the site despite its statutory liability, and that children were
gaining access to the contaminated areas at the site. In the settlement, the MBTA agreed to
accept responsibility for a full cleanup, to pay a civil penalt)' of $75,000, and to pay response
costs of $80,000. The MBTA also agreed to undertake and implement a full-scale environmental
management system designed to change the wa\' it manages its environmental compliance
issues.
• JEMS of New England EPD alleged that this company failed to comph' with DEP orders
to provide clean water to a family whose well water was contaminated. In a settlement, the
company agreed to pay a $100,000 penalt}'.
• Mendon Road EPD continues to pursue recovery of costs spent by the state many years
ago to clean up coal-related wastes containing a compound known as ferric ferroc)'anide. The
so-called Mendon Road case was filed several years ago against Narragansett Electric for clean
up costs spent b\' the state, which now total several million dollars, with interest. I he First
Circuit referred the question of whether ferric Ierroc\anide is a hazardous substance under the
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PLJBLIC PROTECTION BUREAL' ENVIRON.VIENTAL PROTECTION DIVISION
Comprehensive Environmental Response, C^ompensation and l-iability Act to EPA, and EPA
issued a preliminary ruling that it is. EPD received a fevorable administrative ruling from EPA,
which the company then appealed. EPD ha.s intervened in that appeal.
• 229 Main St. Limited Partnership Ihis controversy involves contaminated propert)' owned
by 229 Main St. Limited Partnership in Natick. EPD previously won a First Circuit case
upholding DEP's right to file a lien on the property after the owner went into bankruptc}'.
During Fiscal Year 2004, EPD finalized a settlement under which the defendants will complete
all remediation at the site. Additionally, the defendants will reimburse the Commonwealth a
total of $272,500, and the Town of Natick a total of $1 7,^500, for past costs incurred.
• Boston Junk In another major 2 IE action, EPD is seeking recovery of monies being spent
to clean up the site of the Boston Convention Center, trom Boston Edison and others. In this
case, EPD is working closely with the Massachusetts Convention Center Authority and the
Boston Redevelopment Authority, co-plaintiffs in the case.
• Weymouth Neck/Conoco In an out-of-court settlement, an oil company agreed to pay
$576,000 toward the cleanup of arsenic and lead contamination at Webb State Park.
• O'Neal Tire Case This is a case that involves a defendant who abandoned waste tires at
various sites in northeastern Massachusetts. The court entered an order prohibiting such
violations, and requiring payment of a $23,750 penalty.
• D.B. Enterprises EPD continued its prosecution of owners and operators of a large landfill
in the Ibwn of Wendell. E'PD is seeking to recover millions of dollars that the DEP spent to
stabilize the landfill in order to prevent its catastrophic collapse.
• Hathaway Braley This joint federal-state case involves the Atlas lack superhuid site in
Fairhaven. Although EPL") had previous!)' lodged the Hathaway Braley judgment regarding
that entit)''s share of liabilit}', Atlas Tack, the owner of the contaminated site, moved to intervene
in order to challenge the settlement. The court entered the settlement over Atlas Tacks objection.
• Flaherty EPD filed suit against developers of a contaminated site in Tyngsborough that
. were disclaiming liability tor the clean up.
• Hampden Color & Chemical Creditors of the insolvent former owner of a contaminated
site sought to compel DEP to disburse to them hinds from a regulation-mandatcil trust accotnit.
EPD prevailed in a decision from the Appeals Coiut.
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[■UBLIC PROTECTION BUREAU ENVIRONMEN lAL I'ROTECTION DIVISION
NATUR.-\L RESCK'RCH RHCOVHRY, FRCTl ECriTON. AND PRESHRVAITON
• Natural Resource Damages Together with the federal government, EPD brought a case
against the C'ity ot Ilolyoke Electric Department and others involving coal tar wastes in the
Connecticut River. tPD settled the case tor SSOO, ()()() for natural resource damage projects in
the area.
• Environmental Review Fi'D handles many cases thai arise under the Massachu.setts
Environmental Policy Act (MEPA). In the most signifit.ant case, MassPort filed suit seeking to
modify a 1976 state court injunction, issued under MEPA, enjoining the Authorit)- from
constructing an additional runway at Logan Airport. In the suit, Ma.ssPort alleged that
modification of the injunction was warranted because the Secretary of Environmental Affairs
had certified the environmental impact report for the proposed new runway. Consistent with
EPD's position asserted on behalf of the Secretaiy of Environmental Affairs, the .Superior Court
ruled that the existing injunctions should be modified to .illow MassPort to construct the new
runway, but that these injunctions also should be kept in place to require MassPort to conduct
certain mitigation measures.
• Protection of Endangered Species and Plants In Capolupo v. PEP (Suffolk C.A. 03-
1 136), EPD obtained an important victor)' in Superior Court. The Court granted its Rule
12(b) motion to dismiss Capolupos complaint that sought interlocutory, C.L. c. 30A, review
of a DEP order that a development project (near the Merrimack River in Salisbur}') triggered
the MEPA rare species review threshold because alteration of actual bald eagle habitat may
result in a "take" under the Massachusetts Endangered Species Act (MESA). The plaintiff had
sought a declaration that there was no jurisdiction for MEPA review because the legislature, in
enacting MESA, did not intend that a "take" include "mere habitat alteration."
WETLANDS. WATERWAYS. AND WATER POLLUTION
Much ol EPD's environmental work is done to protect the Commonwealths water-related resources,
including its waterbodies, drinking water, wetlands, and tidelands. The Attorney General brings suit
against parties that violate the state laws passed to protect these critical resoiuces.
• Seawatch This litigation involves (arms in Eairhaven and Wesrporr where rotting clamshells
were dumped. EU'D reached a settlement with Seawatch (the compan\' that produced the clam
shell wastes) that required payment of a $25,000 penalty. The case is also significant because,
at EPD's prodding, Seawatch developed a whole new technology to address the problem.
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'UBLIC PROTECTION BUREAL; ENVIRONMENTAL PROTECTION DIVISION
• SK Design This is a wetlands case involving the draining of a pond in Sheffield without
compliance with the terms of an approval from the local conservation commission. The
settlement included a $25,000 civil penalty.
• Hoosac Water Quality District I'he Attorney General brings many cases with the federal
government against municipal entities that operate publicly-owned treatment works that
discharge into waterbodies. During this fiscal year, the court entered a settlement with the City
of North Adams, the Town of Williamstown, and the Hoosac Water Quality District that
manages sewage treatment h)r the two municipalities, under which the defendants will take
specific steps to prevent future violations, and pa\' civil penalties totaling $100,000.
• Brickyard Marketplace In a case alleging that an owner ol a strip mall in Mashpee installed
a large-scale septic system without state approval, EPD obtained a settlement requiring
compliance and a $50,000 pcnalt)'.
• Pearson Landscaping In a case involving wetlands and solid waste violation in Newbury,
the defendant agreed to a $1 15,000 penalty, of which $1^,000 can be waived.
• Wood Recycling This is a case involving a demolition debris company in Sourhbury that
violated wetlands and air pollution laws in various respects. EPD reached a settlement that
requires the payment of a $425,000 penalty.
• Quincy The City of Quincy constructed a coastal revetment without complying with the
terms of the wetlands approval that it had obtained. In a settlement, the city agreed to a
$25,000 penalty, half ol which can be waived. The city also agreed to undertake a wetlands
restoration project.
• Szczepaniak In this wetlands case in I.anesborough, EPD obtained an order requiring hill
restoration and a penalty ot $55,000.
• Sullivan EPD prevailed in the Appe;ils Court in this case in which property owners alleged
that state wetlands regulation effected a regulatory taking of their land.
• Blair In this case involving unpermitted land alterations that were done in violation ol the
state Watershed Protection Act, the violator charged that the regulations effected a taking ol his
property. I'he Appeals C'ourt ruled in the Commonwealths favor, and the Supreme Judicial
Court denied huther appellate review.
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PUBLIC I'ROlKCnON BUREAU tiNVIKONMUNTAL I'ROTECTION DIVISION
• Coastal Tidelands 1 he Attorney Cicneral also dfknds tlic public's rights in coastal tidclands.
For example, in Trio Algarvio. Inc. v. Commissioner t)FOHP . 440 Mass. 94 (2003), EPD obtained
an important victory in a tidelands case involving the public trust tloctrine. i he case involved
the Commonwealths rights to charge tidewater displacement tees and tidelands occupation
Fees For a private party's use oi filled land that lies seaward oFthe historic low tide line. The
Appeals Court had struck down the assessment of both Fees. The Supreme judicial C^ourt
upheld one oi the tees in its entirety and remanded the second fee For further proceedings.
I'ROTECTION OF PUBLIC CONSERVATION LAND
The Attorney General enforces Article 49 of the Amendments to the State Constitution (iis amended
by Article 97), which serves to protect public park land and land dedicated to conservation purposes.
In this role, Hl'l) became involved in a controversy concerning the Town of Hanson, which sold two
parcels of conservation land to pri\ate parties. FPl) intervened in one case and filed an diiiicui brief in
the other.
Together with other states, EPD submitted an amicus brieFto the U.S. Supreme Court in a case
involving the scope of EPA jurisdiction over water pollution matters. South Florida Water Management
District v. Miccosukee Tribe , 541 U.S. 95 (2004). The court upheld the position EPD supported —
that a federal discharge permit was required where polluted water From one water body was discharged
to another water body, regardless of whether any new pollutants were added.
STATISTICAL SUMMARY
During Fiscal Year 2004, EPD handled enforcement proceedings leading to judgments requiring
payments of $8,661,026.89. This figure is for penalties, cost recovery, and other payments awarded in
Fiscal Year 2004, whether or nor actually paid in Fiscal Year 2004. It does not include penalties that are
subject to waiver if the defendant stays in compliance. In Fiscal Year 2004, Fl'D received actual payments
totaling $8,031,152.63 in penalties, cost recovery, and other payments. Other c;ises resulted in court
judgments requiring private parties to undertake costly clean ups — a savings of millions of dollars for
the Commonwealth.
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PUBLIC PROTECTION BUREAL: ENVIRONMENTAL PROTECTION DIVISION
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
BRO^^FIELDS
Chapter 206 of the Acts of 1998, "An Act Relative to Environmental Clean up and Promoting the
Redevelopment of Contaminated Property," otherwise known as the "'Massachusetts Brownfields Act,"
encourages the cleanup and redevelopment of Brownfields sites through both iiabilit)' reforms and
financial assistance. One of the liability reforms authorizes the Attorney General to enter into Brownfields
Covenants that provide liability relief beyond what is otherwise available under Chapter 2 IE. The
Brownfields Covenant Program addresses site specific liability concerns for complex cleanups and
important redevelopment efforts.
Applications for Brownfields Covenants 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.
In Fiscal Year 2004, EPD's Brownfields Unit continued to work on a number of diverse cleanup
and redevelopment projects throughout the Commonwealth. The Brownfields Unit considered several
applications for Brownfields Covenants and finalized four Agreements designed to promote cleanup
and reuse projects in Lynn, Burlington, New Bedford, and Lowell. The Brownfields Unit has continued
its ongoing efforts on various long-term priority projects and also has continued to solicit new projects
through outreach and education.
BRONXTMFIEL.nS AGREEMENTS FINALIZED
• 395 Lynnway Project — Lynn In August 2003, EPL^ entered into a Brownfields Covenant
that will result in the clean up and reuse of idled property located at 395 Lynnway, Lynn. This
project involves a 104,000-sqare-foot building for commercial uses that will result in the
preservation of 12 existing jobs and the creation of 12 to 1 6 new jobs.
• Filter Sales — Burlington In November 2003, EPD finalized a Brownfields Covenant Not
to Sue Agreement with Filter Sales, Inc. for the reuse of a vacant former manufacturing facility
located at 1 5 Adams Street at the junction of Routes 3 and 128 in Burlington. Filter Sales, Inc.
will be relocating its air filter manufacturing operations to Burlington, and expects to create 30
to 40 new, permanent jobs. It will also sell its former Charlestown facilit}', giving rise to a
potential net gain of 20 new permanent jobs at that location.
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PUBLIC I'ROI LCTION BURtAU LNVIRONMtNTAL I'ROTtCTION DIVISION
• Riverside Avenue Project (former Cliftex Building) — New Bedford In January 2004,
EPD finalized a Brownfields Covenant Not to Sue Agreement with Norseman Properties, LLC
to clean up and renovate the former Cliftex building, a 100-\'car-old, 300,000-square-fi)or mill
building, in New Bedford. The new owner plans to renovate the building so that it is suitable
for several businesses, such its a regional trucking operation, a surplus equipment suciplier,
warehouses and/or storage facilities, and a national-brand clothing maimfacturer. This project
will result in the creation of l'^ to 8S new, permanent jobs and will retain 125 to 15S current
jobs.
• Manchester Street Project (Part 2) - Lowell In February 2004, EPD entered into a second
Brownfields Covenant to promote the expansion of the Manchester Street project in Lowell.
This project will result in additional housing units, including more affordable housing
opportunities.
OTHER ACTIVE BRO^T^JFIELDS PROIECTS
EPD was activel)' involved in man\' different other brownfields projects this year, some of which
have submitted draft or final applications.
• North Andover — Lucent Site This project involves the conversion of the former Lucent
site into a multi-use office/research and development park that will create new, permanent jobs
for the Merrimack Valley region.
• Westborough — Westborough Commons Project A developer is interested in revitalizing
the former Tyrolit manufiicruring facility into a vibrant community-oriented shopping center
that will create 750 new jobs, provide tax revenue from retail stores, and protect two areas of
public open space.
• Pittsfield — Colonial Theatre Restoration Project A local theater association is interested
in purchasing property that abuts a historic.tlly significant theatre for a restoration/expansion
project.
• Attleboro — Swank Property Ihe Artleboro Redevelopment Authority is facilitating the
expansion of the operations of a large jeweh)' manufacturer to create 500 new jobs.
• GenCorp. /Lawrence Gateway Project — Lawrence One of the Brownfields LInit s long-
term priorit)' efforts is the Gateway area of Lawrence. The redevelopment of the GenCorp site
into parking, and the abutting O.xford Paper site into a park and an open space recreation area
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PUBLIC PROTECTION BUREAU ENVIRONMENTAL PROTECTION DIVISION
will be catalysts for revitalization of the Gateway area — inspiring new development, increased
occupancy and use in existing mill buildings — and expansion of Lawrence (general Hospital
services. 1 his project would create hundreds of jobs and spur economic development of the
Gateway area and much of the tnill area, creating significant public benefits to Greater Lawrence.
In Fiscal Year 2004, the Brownfields Unit continued to participate in regular Gateway meetings
convened to provide constant momentum to move the GcnCorp and Oxford Paper projects
forward. EPD also promoted and facilitated the formation of an entit\' to assume operation
and management responsibilities of hundreds of parking spaces on the GenCorp site that could
be used by abutting mill owners by 2004. EPD also advocated for near-term parking spaces on
appropriate portions of the GenCorp site. GenCorp has submitted a draft application for
EPD's consideration.
• Rail Yard — New Bedford Another of the long-term priority brownfields efforts is the
New Bedford Redevelopment Authority project involving the conversion of the 30-acre New
Bedford rail yard into a multi-use intermodal transit area. In Fiscal Year 2004, EPD worked
with Cit)' of New Bedford officials to provide assistance so that the project's liability' issues will
be addressed.
• BFI/Decor Project — Whitman A current tenant with an existing business forms company
is interested in completing the cleanup and expanding paper manufacturing operations (creating
approximately 30 new jobs), but has liabilit)- concerns associated with these efforts.
• South Shore Tri-Town Developinent Project (Former Weymouth Naval Station) —
Weymouth, Rockland, and Abington This project will clean up and redevelop 1 ,400 acres of
land at the former Weymouth Naval Station located in the towns of Weymouth, Rockland, and
Abington. Portions of the property have been or will be transferred to South Shore Tri-Town
Development Corporation and a private developer.
• Broolcs Park Project — Lawrence Lawrence Commimity Worlcs is interested in purchasing
a site in the North Common neighborhood of Lawrence that was formerly occupied by dn,'
cleaning operations. During Fi.scal Year 2004, the Brownfields Unit worked with the parties to
facilitate site ;issessment activities in order to complete the appropriate response actions for use
;is a park.
• Revere Copper and Brass Site — Plymouth The Plymouth Redevelopment Authority' is
pursuing the cleanup and redevelopment of a 1.5-acre sire formerly operated by the Revere
Copper and Brass C "ompan)'.
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PUBLIC PROTECTION Bl'REAL> tNVIRONMHNIAL PROTi;CTlC)N DIVISION
RROWTMHELDS PROGRAM »E\T:Le:>PMENT
riiroiiglioiit Fiscal Year 2004, EPD explored cleaiuip and rcdcNclopmciu opporuinities with a
variety of prospective developers. These redevelopment projects could lead to the creation ot new jobs
across the Commonwealth, involving significant tracts of land and commercial space as well as the
creation of affordable housing and open space.
In many instances, this Office has encouraged cleanup and redevelopment projects to proceed by
providing interested parties with an understanding of the liability relief available under the statute. It
is sometimes the case tliat a Brovvnfields Covenant is not neccssar\' tor a project to proceed. A large
percentage ot the cleanup and redevelopment projects tiiat the Brownfields Unit has been involved
with are long-term by nature, and with complexities that ultimately give rise to the need for a Covenant,
in tliose cases where the clean up is complex, the liability is potentially substantial, and the redevelopment
opportunit)' may be of great significance to the economic viability of a commimity. A Brownfields
Covenant is often a critical component of the transaction. Fiscal Year 2004 continued to highlight the
important role that the Brownfields Covenant Program pla}'S in both public and private efforts to
transform brownfields properties throughout the C'ommonwealth.
LEAr3 PAINT
The presence of lead-based paint in our states older housing stock means that children in
Massachusetts face a heightened risk of lead poisoning. Massachusetts' lead-based paint notification
and abatement law, one of the nations strongest, 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 notifi' tenants that a propcrt)' has not been deleaded, regardless of whether a child under the age of
six is living in the home.
During Fiscal Year 2004, Massachusetts continued a lead paint enforcement initiative in cooperation
with the F.PA 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 are part of a larger Public Protection
Bureau initiative that will potentially include civil rights actions against landlords who seek to evade
the lead law by refiising to rent to flimilies with small children, and enforcement actions against unlicensed
lead abatement contractors.
EmaRONMENTAL HEALTH AND SAFETY IN THE .SCHOOLS
Consistent with Attorney General Reilly's priority on safe schools, EPD participated in numerous
initiatives to address environmental health and safet)' concerns in Massachusetts" public schools, especially
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PUBLIC PROTECTION BUREALi ENVIRONMENTAL PROTECTION PrV'lSION
indoor air quality. Attorney General Reiily lias advocated tor schools to adopt pjivironmental
Management Systems to address their environmental compliance issues on an ongoing basis.
During Fiscal Year 2004, EPD continued to work with community groups and other state agencies
to identity the common environmental health and safety issues in the schools, the challenges the schools
face in addressing those issues, and the gaps in the laws and regulations on such issues. EPD is currently
working with several members of the Healthy School Council to develop legislation to address
environmental health and safety issues in the schools.
PROTECTING CONSUMERS FROM EXPOSURE TO ASBESTOS, TOXICS. AND PESTICIDES
Massachusetts has a long-standing commitment to reducing human exposure to harmtlil substances,
such as asbestos, toxics, and pesticides.
• Massachusetts Innovation Center As part ot our continuing 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, E^PD brought an enforcement suit against
a Fitchburg company tor asbestos violations that allegedly occurred during a renovation project at the
firm's facility. EPD obtained a settlement that included a $95,000 penalty.
• High Ridge A Clean State case against the Division ot Fisheries and Wildlite tor asbestos
violations at a site in Westminster. EPD settled the case for a $50,000 penalty, halt ot which is waivable
it the agency stays in compliance.
• Pesticides and Public Housing Together with other states, EPD filed a rulemaking petition
with the federal Department of Housing and Urban Development requesting the agency to require
public housing authorities to mandate the use ot "iiuegrated pesticide management" to reduce exposure
of public housing residents to toxic substances.
THE CLEAN STATE INITIATIVE
A top priority of the Attorney General is compliance, b)' all state agencies and authorities, with the
environmental laws and regulations ot the Commonwealth. During Fiscal Year 2004, the Attorne\'
General pursued various enforcement cases against state entities. These cases included his prosecution
of the MBTA for its failure to complete a cleanup of a site in Readville contaminated with lead and
arsenic, and a case against the Department ot Fisheries, Wildlite and Environmental Law Entorcement
involving asbestos violations at a site in Westminster. In addition to prosecuting individual cases against
state entities, the Attorney General seeks to have state agencies implement policies to prevent
environmental violations from occiuring. During this fiscal year, EPD monitored these state agency
eftorts.
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PUBLIC PROTECTION BUREAU ENVIRONMFN TAL PROTECTION DIVISION
CAPE NX-1ND
111 November 2001 , (^.ipe Wind Associates Tilei-I an applitanon with the Arin\- (^orps of Engineers
for a permit in conjunction witli a proposal to build a "wind Farm' on Horseshoe Shoals in Nantucket
Sound. The proposal envisioned 170 (since scaled down to 130) wind turbine generators on p)'lons
standing approximately 260 teet above sea level, spread over 28 square miles ot the Sound. Hor.seshoe
Shoals is located in the center oi the Sound, more than three miles beyond the coastline and closing
lines, and therefore outside of Massachusetts territorial waters.
Although federal law establishes a comprehensive scheme for licensing areas of the seabed on the
continental shelf for mineral exploration and extraction, including oil and gas, there is no such scheme
applicable to other sorts of projects on the continental shelf. The developer of the proposed wind farm
appears to take the jiosition that in these circumstances a permit from the Army Corps will suffice to
authorize the project.
The Attoriie\- (ieneral has concluded that this position poses a substantial threat to the public
interest and public rights in the Sound and elsewhere along the Massachusetts coast. Quite apart from
the particular proposal, the developer's line of reasoning could ignite a "land rush" off the coast by
developers with aJI sorts of projects. In this way, the rights of the public gencralh' would be appropriated
for private gain with very little control as to siting and permissible uses, and without compensation to
the public for the loss. In the Attorney General's opinion, the immediate proposal well illustrates the
problem, because it would site a massive industrial installation in the middle of a body of water cherished
by millions for its aesthetic and recreational values and for its contribution to the li\clihoods of fishermen
and of coast.il towns.
Accordingly, in Fiscal Year 2004, the Attorney General continued to raise these concerns in many
different forums. For example, the Attorney General submitted an amicus brief in Alliance to Protect
Nantucket Sound. Inc. v. United States Department of the Army, et al. . No. 03-2604 ( 1 st Cir.), arguing
that a permit issued by the Army (^orps of F.ngineers ptirsuanr to the Rivers and Harbors Act does not
provide sufficient authority to allow a private part)' to occupy feder.il public trust lands.
BUZZARD'S BAYOU. Sl'IIJ
In 2003, a barge owned by Bouchard Transportation spilled approximately 50,000 gallons of oil
into Buzzard's Bay. F.PD has been assisting the state and federal Natural Resource Trustees to ensure
that natural resource damage issues are adequately addressed.
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PLiBLIC PROTECTION BUREAU INSURANCE DIVISION
LEGISLATIVE EFFORTS
During Fiscal Year 2004, much of EPD's legislative work was in figiuing efforts by the U.S.
Department of Defense (DOD) to secure additional exemptions from federal environmental laws. For
example, in congressional testimony he submitted opposing such efforts, the Attorney General pointed
out that historically DOD has been one of the worst environmental violators and that the major federal
environmental laws already provide DOD with sufficient flexibility to ensure that environmental
compliance will not compiomise military readiness.
On the state side, EPD fought for legislation filed by Attorney General Reilly and Senator Brewer
that would create a statute of limitations for cases brought to enforce the state's cleanup statute, G.L.
c. 21E. The proposed statute would key the statute of limitations to the discovery of the violation
instead of to its occurrence, which is a change that EPD believes is important for preserving the integrity
of the largely-privatized stare cleanup program.
NUCLEAR SAFETY ISSUES
EPD joined an amicus brief in a case pending in the Ninth Circuit Court of Appeals that involved
the Nuclear Regulatory Commissions (NRCs) efforts to keep issues related to terrorism out of licensing
decisions. EPD also submitted an amicus brief (joined by four other states) to the First Circuit in a case
challenging NRCs efforts to limit public participation in ULiclear power plant licensing proceedings.
Finally, FIPD sent a letter to the National Academ\' of Science regarding its review of certain nuclear
safety issues.
INSURANCE DIVISION
The Insurance Division represents the public interest in administrative insmance rate-setting
proceedings, brings actions in state court against insurers for unfair acts and practices, provides comments
and testimony regarding proposed regulations and laws relating to insurance, assists in other litigation
in the Public Protection Bureau, mediates claims on behalf of consumers, and provides assistance on
insurance and other issues to members of the Massachusetts elder community.
The Insurance Division included Glenn Kaplan, Chief; Staq' Book; Gerald Cahill; Gerald D'Avolio;
Judy dePontbriand; Michael Dunn; Barbara Fain; Burt Feinberg; Maureen Forbes; Rebecca Frade;
Stacey (iorham; Maureen Hensley-Quinn; Hilar)' Hershman;ronie jhun; Shannon Keith; Peter 1. eight;
Pamela Meistet; Tom O'Brien; Mar)' Jane Preskenis; Katie Rhodes; Ja)'na Stafford; and Rachel Weiner.
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PUBLIC PROTECTION BUREAU INSURANCE DIVISION
SIGNIFICANT CASE SUMMARIES
RATE CASE LITIGATION
Insurance rate proceedings involve highly complex litigation, with hundreds of" millions ofdoilars
in customer premiums at issue. The Insurance Division, with its attorneys, support staff, and in-house
actuarial and mathematical experts, reviews industry filings and intervenes in rate cases to prevent
unfair rate increases. I'he Attorney Ceiieral's Office, as the only part^' in the rate cases representing the
public interest in fair rates for consumers, and as the only party able to appeal unjustified rate increases
.i[ipr()\ed In the (Commissioner of Insurance, pla}'s a key role in this process.
• 2004 Automobile Insurance Rate Proceeding fiie automobile insurance rate-setting
proceeding is an annual administrative litigation in which the Commissioner of Insurance,
based on proposals and evidence submitted by the auto industry and other parties, sets automobile
insurance rates for the coming year. Fhe Insurance Division litigates these proceedings,
representing the public interest. The division completed its administrative litigation against
the industry's requested 12% rate hike, and the Commissioner issued a decision raising rates by
2.5%. Although the litigation was largely successfid (the decision was almost $400 million less
than the industry requested), the division sought to further improve the result for consumers
by appealing the 2.5% rate increase.
• 2004 Workers Compensation Insurance Rate Proceeding Workers Compensation Insurance
is a mandatory insurance coverage for Massachusetts companies that pa)'S claims for job- related
injuries, and costs Massachusetts businesses over a billion in premiums each year. The rates for
workers compensation insurance are set in a cyclical administrative rate proceeding. For the
first time in over 20 years, the Attorne}' Genercd intervened in this proceeding and identified
several major errors in the industry's filing that would otherwise have gone unnoticed. The
division's cross-examination of industry witnesses, and proffer of evidence demonstrating the
excessiveness of even the existing workers compensation insurance rates, resulted in a rate rollback
and saved small and medium businesses in Massachusetts over $148 million.
• Blue Cross/Medex Medicare Supplement Insurance Rate Proceeding Blue Cross, the
largest provider of Medicare Supplement Insurance (insurance that covers the exclusions and
gaps in Medicare) in Massachusetts, filed for a double-digit rate increase with the Division of
Insurance. Inter\'ention in this litigation by the Insurance Division resulted in a savings to
consumers of over $1 1 million.
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PUBLIC PROTECTION BUREAU INSURANCE DIVISION
• Hartford Medicare Supplement Insurance Rate Case Hartford Insurance Compan)-
provides Medicare Supplement insurance to approximately 1,000 residents in the
Commonwealth. Rates for this coverage are approved in an administrative docket before the
Commissioner of Insurance. Hartford filed seeking a 23% rate increase for one of its types of
policies. Intervention by the Insurance Division resulted in savings to consumers of over
$100,000.
• Bankers Life Medicare Supplement Insurance Rate Case Bankers Life is another Medicare
Supplement insurer in the Commonwealth. This fiscal year Bankers Life filed for rare increases
ranging up to 35% on various Medicare Supplement insurance plans it offered. Intervention
by the Insurance Division resulted in savings to Massachusetts seniors of ;iimost $800,000.
• FAIR Plan (Homeowner Insurance) Rate Case The FAIR Plan provides homeowners
insurance to consumers who cannot obtain coverage from private insurers. Rates for this residual
market plan are set in a c\'clical rate proceeding. The industry filed this year for a proposed rate
increase of 4°/b. The division intervened, and its actions saved Massachusetts consumers over
$1 million in home insurance premiums, and resulted in a rate rollback for FAIR Plan
policyholders in much of the City of Boston.
SUFFOLK SUPERIOR COURT LITIGAIION: INSURANCE ISSUES
In addition to the rate-setting cases, the Insurance Division aggressively pursues insurers, insurance
agents, and other participants in the insurance system when they commit unfair acts and practices.
• In re MetLife Insurance Co. Metl.ife, a New York-based insurer, misled Massachusetts
consumers about the financial benefits of certain life insiuance-based products. The division
obtained an Assurance of Discontinuance against MetLife, requiring changes in its policies,
restitution, and a $150,000 payment to the Commonwealth.
• Commonwealth v. Guardian Life The Insurance Division investigated allegations that
Guardian Life Insurance Company of America, a health insurer, failed to pay properly health
insurance claims for ambulance services. Ihe division filed suit and obtained a hidgment
including $53,000 in consumer restitution and $45,000 in penalties.
• Commonwealth v. Creative Solutions Group. Inc. This insurance broker provided
inaccurate deductible and related dental polic)- limit information to certain consumers. The
division obtained an Assurance of Discontinuance, including flill consumer restitution, injunctixc
relief, and a statutory penalty.
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['L'BLIC PROTECt ION BL'REAU INSHRANCL DIVISION
• Commonwealth v. Electric Insurance Co. Ihc division reviewed allegations that Electric
Insurance Co. (Flectric) violated state law by leKising to provide homeowners insurance to
consumers based on their uninarrictl status. I he division obtained a Judgment tor $35,000 in
penalties, and injunctive relief rec]uiring Flectric to coni.ici the relevaiu consumers and offer
them insurance as well as any related restitution.
• Commonwealth v. Beech Street Corp. Beech Street Corp. (Beech Street) is a Preferred
Provider Organization (PPO) piuporting to offer an expansive health benefits provider network.
Potential purchasers raised concerns regarding the accuracy of Beech Street's promotional
materials. Beech Street agreed to an Assurance of Discontinuance under which it would correct
any misimpressions among its customers, prospectively change its marketing and recredentialing
practices, and pay $15,000 to the Commonwealth.
• Commonwealth v. LInited Healthcare Insurance Co. United Healthcare Insurance Co.
(United Healthcare), a health insurance company, allegedly failed to pay for ancillaiy services
on pre-approved surgical procedures (i.e., United would pay fully for the surger)' but not the
anesthesia). The Insurance Division filed an Assurance of Discontinuance in Suffolk Superior
Court, obligating United Healthcare to tnake changes to its practices, pay outstanding claims,
and pay a $ 1 5,000 penalty.
• Commonwealth v. American Heritage Life American Heritage Life, a credit disabilit)'
insurance provider, failed to provide adequate disclosure, as required bv regulation, relating to
termination options available under its policies. I'he Insurance Division obtained a judgment
against the company including injunctive relief and a penalty of $25,500.
• In re Long Term Care Insurance Agents Long Term Care insurance provides monies to
consumers when the\- no longer are able to care for themselves and need either nursing home or
other living assistance. Long Term Care insurance brokers are required to provide certain
disclosures and information regarding this complex coverage to potential purchasers. The
Insurance Division filed Assurances of Discontinuance in Suffolk Superior Court requiring
three Long Term Care brokers — Clower Insurance &r Financial Strategies, Inc., Flisenberg
Associates, and Ronald P. Miles Insurance Agency — to change their business practices and pa\'
a penalty under the Consumer Protection Act, G.L. c. 93A. Each had failed to provide
appropriate disclosures when visited by Office of the Attorney General investigators as part of
a sting operation.
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PUBLIC PROTECTION BUREAU
INSURANCE DIVISION
• Commonwealth v. Universal Benefit Plans. Inc. Universal Benefit Flans, Inc. failed to
disclose properly that its discount plan for dental services was not insurance (and thus was not
subject to the ct)nsumer protections available to insurance purchasers). Fhe division resolved
this matter with an Assuratice of Discontinuance that rec]uired changes in Universal Benefit
Plans, Inc.'s future marketing efforts, restitution to consumers, and a statuton,' penalt}'.
STATISTICAL SUMMARY
Investigations initiated
Penalties Imposed
Restitution and Monetary Savings for Consumers
61
$ 1,975,000-
$ S42 million
The division includes two mediation projects, the Insurance Mediation Program and the AG Elder
Hotline, that help consumers resolve certain individual disputes without legal action.
MEDIATION CONSUMER MEDIATIONS/ ASSISTED
PROGRAMS CALLS COMPLAINTS RECOVERIES'
Insurance Mediation 7,413
AG Elder 8,400
932
4,674
$ 1,422,729
$ 167,000
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
PUBLIC POLICY INITIATIVES
In addition to enforcing existing statutes, the Insurance Division is active in exploring various
public polic)' issues. The division advocates regarding potential legislative changes and proposed
regulations. It also performs important research and analysis regarding the actual effect of various
trends and systems on the insurance market and on consumers. 1 hese data, and the conclusions dr.nvn
from them, are useful for public poliq' debate surrounding insurance issues.
"This figure includes cases conducted joindy with oilier divisions, such as die Microsoft case, the Internet aniniuniiion
sting cases, and the Pharmacy Assessment matters.
'These monetary recoveries are included in the tiii.il Resritution and Moneiar\' Savings lor (Consumers.
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PUBLIC PROTECTION Bt'RLAU INSLTUNCL DIVISION
Credit Scoring for Insurance Credit scores are numerical values, computed from past credit
histories and other data, that purportedly reflect the likelihood that a consumer will pay his or her bills
on time. Main- insurance companies beHeve that credit scores also predict how likcU' a consumer is to
submit an insurance claim (i.e., rec|ucst reimbursement from an insurer for damage to a house or car).
Ihese insurers advocate the use of credit scores for determining whether to offer insurance to individuals
and how much to charge for it. following a call b\' iiisiuers for broader use of credit scoring, the
C Commissioner of Insurance drafted regulations that would have allowed the use of credit scoring for
setting individual consumer insurance rates. The Insurance Division testified at a public hearing,
detailing the problems both with the regulations and with the use of Ltedit scoring for rating purposes.
After the hearing, the Conunissioner witiidrew tiie regulations.
Auto Insurance Residual Market Reform In Fiscal Year 2004, the division continued its efforts to
have the Commissioner of Insurance reform the way in which consumers obtain auto insurance when
they cannot obtain coverage from insurers voluntarily (often referred to as the "atito residual market
system"). The division previously had provided the Commissioner with data demonstrating that the
CLUieiU system perpetuates fraud, results in impredicfable and inequitable divisions of losses among
existing carriers, and fails to protect consumers.
Merit Rating Board This board considers how automobile accidents and driving records are used
to assign consumers to certain "safe driver' categories for auto insurance purposes. The board, which
meets quarterly, includes representatives of the Attorney Ceneral s Office, the Registrar of Motor Vehicles,
and the C'oirimissioner of Insurance. The Insurance Division represents the Attorney Ceneral on this
board. Fhe division continued to participate on the board and worked toward improving the functioning
of the "merit rating" system for Massachusetts drivers.
Managed Care Oversight Board Advisory Committee This committee advises the Executive OfTice
of Health and Human Services regarding certain health insurance and health care regulations. The
Insurance Division attends meetings of the Advisory Committee and monitors its activities. The division
continued to attend these meetings, and offered board members the Office's views on a variety of
regulator)' issues.
Testimony and Legislative Guidance The division ,iIso provides testimony at administrative public
hearings and before the legislature regarding regulatory initiatives and changes in insurance law. The
division provided guidance to legislators on a number of issues, including auto insurance reform, credit
scoring, homeowners insurance, possible health insurance protections for consumers whose companies
close employment facilities, and workers compensation insurance. In addition, the Ciovernor asked tiie
Attorney Ceneral's Office to join his Auto Insurance Reform lask Force, and division staff began
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PUBLIC PROTECTION BUREAU INSURANCE DIVISION
participating in weekly lask Force meetings aimed at exploring various options for auto insurance
reform.
ASSISTING NyiTH THE ATTORNF.Y GENERAL'S
GENER.M. CONSUMER PROTECTION MISSION
• Pharmacy Assessment Cases The major pharmacy chains in the Commonwealth, in an
attempt to pass along to consumers costs relating to new licensing fees, misled consumers
regarding the nature ot these licensing expenses. The pharmacies wrongly told consumers that
the charges were a new "tax" on consumers and that consumers were obligated to pay the such
charges under their HMO and health insurance coverage. The Insurance Division worked
jointly with the Consumer Protection and Antitrust Division to bring legal action against the
pharmacy chains. I'he division's efforts resulted in the filing of A.ssurances of Discontinuance
with the major chains, including Walgreens Company; Wal-Mart Stores, Inc.; CVS Pharmacy,
Inc.; Brooks Pharmacy; and Stop & Shop Supermarkets. The companies agreed to provide full
restitution to consumers, change their practices prospectively, and pay $570,000 in aggregate
penalties to the Commonwealth.
• Massachusetts v. Microsoft The Attorney Cicneral sued Microsoft under state and federal
antitrust statutes, winning on liability. Ihe Office continued to litigate remaining open aspects
of this case, including the right to recover attorneys' fees and costs against Microsoft, and
obtained a judgment for $1 million in attorneys' fees. The Insurance Division also played a key
role in the Attorney General's continuing efforts against Microsoft, including investigating
potential violations of the existing remedial decree, filing status reports with the District Court
regarding Microsoft's behavior, and pursuing an appeal to the D.C. Circuit seeking strengthened
injimcfive relief against the company's future predatory actions.
• Commonwealth v. Allied Home Mortgage Capital Corp. Allied Home Mortgage Capital
Corp. (Allied), a national mortgage company with a significant presence in Massachusetts,
violated state and federal law in its use of pre-recorded telemarketing messages. In a joint effort
with the Consumer Protection and Antitrust Division, the Insurance Division filed suit against
Allied and resolved the matter by Consent Judgment. Under the Judgment, the company is
subject to injimctive provisions that ret]uire the alteiation of its business conduct and a payment
of $65,000 to the Commonwealth.
• Internet Ammo Dealers Following allegations that certain Internet anmuniition dealers
had been selling ammunition illegally to Commonwealth residents, the Insurance Division, in
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PUBLIC I'ROTECTION BUREAU INSURANCE DIVLSION
conjuncrion with the (ionsumcr I'rotcction Division and the Investigations Division, oversaw
a sting operation to review Internet aniniunition dealer practices. Ihe sting operation and its
resulting conn cases shut down the illegal aninmnition sales channels oFfive iniernet ammunition
dealer operations: Discount Distributors, Inc.; Midway Arms, Inc.; Advanced International
Marketing, Inc.; Cascade Ammunition, Inc.; and Kiesler Police Supply and Ammunition
Company. The division's judgments barred the imliceiised sites from selling ammunition into
Massachusetts, and impo.sed penalties against the perpetrators. The Insurance Division also
separately brought suit against The Ammobank, another Internet ammo dealer, for unlawful
ammunition sales, and litigated this matter during the past Fiscal year.
• Commonwealth v. European Health Concepts Kuropean Health Concepts, a Florida
company selling magnetic mattress pads and seat cushions through presentations aimed at
senior citizens, failed to honor its "no-risk" money-back warranty on products sold to
Massachusetts consumers. The Insurance Division filed suit and obtained a judgment including
injunctive relief, an award of $32,000 in restitution, and civil penalties of $27,000.
• Microsoft Passport Microsoft recently began offering an authentication system product to
consumers. The system, called Passport, allows users to communicate with Web sites in an
allegedl}- more secure fashion and provides a mechanism for Web sites to recognize consumers
(without those consumers needing to re-enter their personal information). Massachusetts (CPAD
and the Insurance Division) reviewed Microsoft's claims regarding Passport's security as a lead
state on a multi-stare investigatory group. After the states raised various concerns with Microsoft,
the compan}' agreed to make changes to its privac)' policy and its marketing claims regarding
Passport.
CONSUMER MEDIATION
Insurance Mediation Sei^ices In Fiscal Year 2004, 7,413 people, an average of 61 8 a month, called
the Insurance Divisions Insurance Mediation Program to ask questions and seek help with insurance
problems. Some 47% of the callers each month were concerned about health insurance issues. Many
of these callers had recently been laid off from their jobs and did not know their health insurance
rights. Additionally, many small business owners contacted the Insurance Division to ask questions
about their responsibilities under Massachusetts mini-COBRA that allows consumers to continue health
insurance coverage in certain situations after the}- have lost their jobs.
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PUBLIC PROTECTION BUREAU INSURANCE DIVISION
Approximately 25% of the callers sought help with auto insurance problems. Most callers were
having difficulty with accident claims; others raised questions about premium billing, cancellations,
and surcharges.
In addition to tiie consistenth' high vokiine of calls related to health and automobile insurance, the
mediation program received inquiries related to a wide range of other types of insurance, including
short- and long-term disability, life insurance and annuities, travel insurance, credit insurance, and
possible insurance scams. Callers asked questions about how to evaluate insurance before purchasing a
polic)'; how to cancel unwanted insurance; how to appeal a denied claim; and how to deal with incorrect
billing.
The Insurance Division mediators, assisted bv undergraduate interns trained by the Insurance
Division, answered the callers' questions, providing information, guidance, and referrals, and, when
appropriate, sending consumer complaint forms. The Insurance Division opened 932 consumer
complaint files, the majorit}' of which were submitted on consumer complaint forms or as letters to the
division. As with the telephone inquiries, a significant portion of the written complaints related to
health insurance. Four hundred and nineteen of the new complaints, 45% of the total, involved health
insurance. The top six health insurance complaint categories were claim denials (90), billing problems
(76), mini-COBRA problems (40), misleading sales (38), disability claims (32), and employers fltilure
to remit health insurance premiums (25).
Insurance Division mediators closed 1,102 consumer complaint files and recovered $1,422,729.20
for Massachusetts consumers.
AG Elder Hotline Through the Attorney Generals Elder Hotline ( 1 -888-AG ELDER), the Insurance
Division provides a central place where senior citizens, aged 60 and older, and their families can call for
assistance on insurance issues and other consumer matters. The AG Elder project provides written and
oral information, referrals within the Attornc)' General's Office or to other government agencies, and
mediation services. AG Elder received more than 8,400 calls from consumers and opened intakes on
4,674 elders. This amount represents an increase of approximately 25% in the number of elderly
citizens served in Fiscal Year 2003. In addition, money consumers saved through mediation was over
$167,000, an increase of approximately $60,000 over the last fiscal year.
He;ilth insurance remains a top area of concern for callers to the hotline, with o\er 400 consumers
calling with complaints relating to coverage. Other significant areas of concern included automobile
issues, home improvement contractor complaints, other retail issues, telemarketing, and credit card/
176
['i:blic protection bl;rlai' insl!ranc:e division
debt issues. AC! Hldei also processed a significanc number of complaints regarding utilities (200),
health care providers (150), and senior/assisted-living facilities (150).
Despite consistency in the top categories of complaints between Fiscal Years 2003 and 2004, there
have been emerging areas of concern as well. These areas include allegations of unauthorized electronic
withdrawals from elders bank accounts; reports of seniors being victims or near-victims of fraudulent
sweepstakes, lotteries, and other scams (despite widespread educational efforts to stave off victimization);
and a growing awareness and concern among elders about identity theft. Finally, calls to the AC! Elder
project indicate an apparent growth in immanageable credit caril debt, especially among the most
vulnerable elders. In order to more accurately capture the nature of the complaints that are brought to
our attention, the Insurance Division is in the process of revising the AG Elder database to allow for
closer trend analysis in Fiscal Year 2005.
HOSPITAL AND HMO COMMUNITY BENEFITS
Division staff oversee the Attorney Cjcnerals Cjommunit)' Benefits Ciuideliiies for hospitals and
FiMOs, including the Attorney Generals Community Benefits Advisor)' Task Force. The Advisory
Task Force includes representatives of hospitals, HMOs, community health advocacy groups, and relevant
state agencies. It is organized into several working groups that focus on the key elements of community'
benefits, including reporting and community engagement.
ELDER PROTECTION UNIT
The Elder Protection Unit seeks to enhance protections for Massachusetts elders by improving the
coordination and monitoring of elder issues, including the Office's outreach efforts as well as its response
to matters involving elder abuse and fraud. The unit draws on the talents of staff throughout the
Office.
The unit convened an internal steering committee to create the policy agenda for elder issues
within the Office. Ihe committee consists of division chiefs or bureau chiefs as well as other
representatives with substantive jurisdiction over elder cases and matters. The steering committee
meets on a quarterly b.isis.
The unit also coordinated two half-day elder issue trainings attended by 25 assistant attorneys
general, investigators, mediators, administrative assistants, and others. The attendees, who received
the designation "elder advocates," agreed to handle appropriate elder matters in addition to their core
duties.
LInit staff trained municipal police cadets on elder fraud and abuse.
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PUBLIC PROTECTION BUREAU INSL'RANCE DIVISION
Unit Staff conducted outreach to elders and elder providers on telemarketing, financial fraud, charit)'
fraud, and identity theft. Staff provided information at different events around the Commonwealth.
These events were mostly speaking engagements at eight different sites where seniors live or gather,
including assisted-living facilities, senior centers, hospitals, colleges, and conunimity groups, but ;iJso
included staffing information tables at the annual conference of the M.issachusetts Councils on Aging.
Staff also served as representatives on various elder advisory boards, including the Massachusetts
District Attorneys Associations Elders and Persons with Disabilities Sub-Committee, Massachusetts
End of Life Commission, and Boston Partnership for Elder Adults.
Elder Abuse Grant Project In late 2002, the Attorney General's Office was awarded a 24-month
Office on Violence Against Women, U.S. Department of Justice training grant to establish an inter-
disciplinary initiative designed to improve the capacity of prosecutors, law enforcement, and elder
service and domestic violence ptofessionals to recognize, investigate, and prosecute abuse perpetrated
against older individuals.
Project staff, including an AAG Project Director, a grant-funded Project Manager, and a grant-
funded Project Coordinator, worked with a multi-disciplinary Steering Committee, which met on a bi-
monthly basis to develop conference curricula and help direct project goals. Additional assistance was
provided by CPAD, the AG Elder Hotline, the Criminal Bureau's Criminal Justice Policy Division, and
the Business and Labor Protection Bureaus Medicaid Fraud Control Unit.
With assistance from the Steering Committee, the Office held a statewide conference on elder
abuse as well as advanced training sessions on financial exploitation, elder domestic violence, and sexual
assault.
• March 24, 2004 — One all-day conference Beyond the Basics: Strategies to Combat Elder
Abuse in Worcester. Topics included a national perspective on handling elder abuse, the
Massachusetts landscape, interviewing techniques, physical and forensic markers, and pitfalls
in prosecuting elder abuse. Approximately 380 professionals attended the conference, including
police, prosecutors, elder service providers, and domestic violence advocates.
• May 20 & 21, 2004 — Two half-day advanced sessions Beyond the Basics: Strategies to
Combat Elder Financial Exploitation , held in Sturbridge and Hyatmis. This conference included
information on the misuse of legal documents designed to help elders (e.g., powers of attorney,
joint bank accounts) as well as how to investigate and prosecute a document-intensive case.
Approximately 210 professionals attended this training.
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PUBLIC PROTECt ION BL'REALI INSLirtANCE DIVISION
• Iiinc 16, 2004 — One li.ilf-da\' .idvanccd session F3e\-ond rhc Basics: .Strategies to Combat
HIder Domestic VioieiKe and Sexual Assault in Worcester, litis conlerence pro\ ided information
on the signs and symptoms ol elder domestic violence and sexual assault, forensic markers,
reporting and safet)' issues, and responding to batterers, as well its breakout groups on working
with the criminal justice system, law enforcement, and elder protection and domestic violence
programs. ApproximateK- 170 professionals attendetl this session.
In December 2003, the Office issued requests for proposals, soliciting bids to produce At the Hands
of Others: Elder Domestic Vio/eiiee and Sexual Assntilt i>i Massachusetts, a 1 S-minute police roll call video
on elder domestic violence and sexual abuse. The producer conducted interviews and developed a
script, which was submitted to the U.S. Department of Justice for approval. The video will be closed-
captioned and released to law enforcement in Fiscal Year 2005.
The Bank Reporting Project The Bank Reporting Project is a public/private partnership to train
bank personnel to recognize, report, and prevent the financial exploitation of elders. This project is a
collaborative effort among the Attorney Generals Office, the Massachusetts Bankers Association, the
Division of Banks, the Executive Office of Elder Affairs, and members of the private financial community.
The partnership held a series of six trainings throughout the Commonwealth.
The Attorney General's 2004 Elder Fraud Alert Calendar One of the recommendations made by
the internal steering committee was to better provide elder consumers with fraud prevention information.
The committee developed a calendar that covered a variety of scams, including foreign lotteries, home
improvement, health, life and annuity scams, Internet, identit)' theft, and charities fraud. I'he Office
distributed 10,000 calendars to law enforcement, elder groups, and individual consumers, and also
posted the Ciilendar on its Web site.
INVESTIGATIONS DIVISION
The Investigations Division conducts investigations primarily for divisions within the Public
Protection and (lovernmcnt Biueaus. 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, and subjects: 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; analj'ze
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l'L;BLIC PROTECTION BUREAU INVESTIGATIONS DIVISION
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, tiie
Federal Bureau of Investigation, and the Federal Irade Commission.
The Investigations Division included Quiiiton Dale, Director; Dante Annicelli; Monique Cascarano;
Todd Davis; Ashley Dizel; Jim Gentile; Mary H. Marshall; Nozomi Murakami; Nicholas Paras; Lou
Russo; and Nancy Ward.
SIGNIFICANT CASE SUMMARIES
The division initiated 25S investigations in the following major are;is:
CIVIL RIGHTS AND CIVIL LIBERTIES
The division investigated hate crimes, allegations of police miscondtict and other violations of the
Massachusetts Civil Rights Act. Investigations into allegations of discriminatory housing and
employment practices also were conducted, as well as investigations to determine compliance with the
rules and regulations established by the Americans with Disabilities Act and the Architectural Access
Board.
CONSUMER PROTECTION AND ANTITRUST
Investigators coiuinued to assist the Office in bringing C.L. c. 93A enforcement actiotis 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 stings and gun enforcement and health care initiatives.
ENVIRONMENTAL PROTECTION
The division's role in environment;tl protection cases primarily involved locating and identifA'ing
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 f(jr such violations, and reviewed, evaluated, and analyzed
financial documents and prepared abitity-to-pay analyses. 1 he investigators also participated in lead
paint inspections.
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I'UBLIC I'ROTaniON BUREAU INVESTIGATIONS DIVISION
INSURANCE
liivc,stigan)rs icviewtd and invt-Mig.itcd businesses aiul oij^aiii/.aiions that wiihhciJ cinplovee
contributions [oi health insurance premiums, but tailetl to actuall\- piuchase tiie health insurance
coverage. Otlier cases investigated included unlawful sales practices, known as "churning, and the sale
of fraudulent or costly life and health insurance policies.
PUBLIC CHARITIES
liie division investigated iiulividuals associated with organizations that laised funds from the public
in violation of Massachusetts law. In some instances, solicitors [losed 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.
CRIMINAL BUREAU
Investigators worked on cases that resulted in indictments and convictions against individuals for
violations of the Commonwealths criminal laws. Cases included larccn)' against the elderly and vulnerable
by home improvement contractors and a travel agent, unlicensed practice of medical professions,
telemarketing fraud, and illegal charitable fundraisers.
TRIAL DI\1SION
The division played a major role in tort actions filed against the Commonwealth b)' investigatitig
allegations of abuse, mistreatment, and deaths of individuals in state care; alleged wrongful termination
of state employees; and personal injuries and other damages occurring 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.
ABANDONED PROPERTIES I'ROIECT
The division assisted the Attorney Generals 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. The division researched properties in Taunton, New Bedford, Worcester, and Brockton.
STATISTICAL SUMMARY
The division opened 238 investigations in Fiscal Year 2004, with 332 investigations ongoing as of
lime 30, 2004.
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PUBLIC PROTECTION BUREAU
MEDIATION SERVICES DIVISION
DIVISION/BUREAU
OPENED DURING
ONGOING AS
FISCAL YEAR 2004
OF 6/30/04
26
82
29
54
5
6
17
14
6
6
11
23
144
137
Consumer Protection/ Antitrust
Civil Rights
Public Charities
Insurance
Government
Environmental Protection
Trial
TOTAL
238
332
MEDIATION SERVICES DIVISION
The Mediation Services Division coordinates and staffs Attorney General Tom Reillys Student
Conflict Resolution Experts (SCORE) Program, which is a nationally recognized peer mediation program
created to reduce violence in schools and foster safer learning environments for students. In addition.
Mediation Services oversees a Conflict Intervention Team (CIT) of specially trained community
mediators, who mobilize at a moment's notice to provide emergency mediation service to schools in
crisis or on the verge of crisis.
Mediation Services Division staff included Michelle Booth; Dawn Fontaine; Johny Laine; Steven
Lilly- Weber; and David Rudewick.
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PUBLIC I'ROI LCnUN BL'RLAU MEDIATION SERVICES DIVISION
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
Student Conflict Resolution Experts Program Fouiuktl in 1 ^89, ,SCX)RF, is a scliool-bascd program
diat uses trained student mediators to resolve conflict among peers. The Attorney General awarded
$396,000 to 26 schools in communities across Massachusetts, incKiding Boston, Dartmouth, drecnfield,
Hoh'oke, Lowell, I \nn. Maiden, Medhjrd, Quinc)', I'ittsfield, Shirle)', Somerville, Springfield, Taunton,
Wakefield (serving 12 communities), and Worcester. Student mediators in SCORE programs mediated
2,298 conflicts involving 6,395 youth; 92% of these conflicts were resolved through the use of peer
mediation. In Fiscal Year 2004, SCX^RFl programs, as a whole, experienced a 21% increase in conflicts
mediated, with a 289'o increase in the number of \-outh invoked in conflicts, compared with Fiscal Year
2003. 1 he conflicts included situations involving physical fights, harassment, name-calling, stealing,
threats, propern,' damage, and rumors.
Division staff maintained close contact with participating schools, monitored grants, and provided
technical assistance. Staff .sei-ved as faculty for student mediator training events in which over 300 new
mediators received training. In addition, division staff also provided advanced training and support to
34 adult mediation program coordinators.
Face-to-Face Consumer Mediation Program The Face-to-Face Consiuner 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. The Attorney
Cieneral awarded grants totaling S3 1 5,000 to nine community mediation programs across Ma.ssachusetts
in Brockton, Fitchburg, Greenfield, Haverhill, H\annis, Lowell, Somer\'ille, Springfield, and Worcester.
"I'his $31 5,000 investment in mediation resulted in the return of $979,647 in cash, and $206,1 50
in non-cash value to Massachusetts consiuners. The nine community programs mediated 1 ,903 disputes
involving auto repairs, home improvement, landlord/tenant issues, debt collection, and broken contracts.
Despite a slight decrease in the number of disputes mediated, the program experienced a 2% increase
in cash value, and a 17% increase in non-cash value returned to consumers compared with Fiscal Year
2003.
Division staff monitored grant activities, provided technical assistance, .served as facuh\' for basic
training sessions for new volunteer mediators, provided advanced training for experienced comnmnity
mediators, oriented new program coordinators, and provided regional forums for participating programs
to share strategies and resources.
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PUBLIC PROTECTION BUREAU MEDIATION SERVICES DIVISION
Conflict Intervention Team The Conflict Intervention Team (CIT) is a collaborative project
among the Attorney Ceneral, the Massachusetts Department of Education, and the Massaciiusetts
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. In addition to the in-kind contributions of the Attorney Generals staff assigned to
the project, a grant from the Hewlett Foundation has funded CIT since 2001. Division staff, in
collaboration with community mediation programs, conducted one intervention at a high school; this
intervention addressed a conflict that involved issues of racism, anti-Semitism, and white supremacism.
The division also engaged in targeted outreach to schools experiencing, or having the potential to
experience, large-scale conflict to niitke them aware of services, and to provide referral to appropriate
resources. The division, using Hewlett Foundation funds, designed and delivered training that
significantly enhanced the skills of community mediators to conduct large group mediation sessions
that are often a part of CIT responses.
Youth Mediating Solutions Fimded by a Byrne Memorial Grant from the Executive Office of
Public Safety, Youth Mediating Solutions (YMS) was a community-based, peer mediation program
modeled after the SCORE program. Division stall established YMS in three pilot communities —
Brockton, Dorchester, and Roxbury — in which the Office of the Attorney General is engaged in a
Safe Neighborhood and/or Weed and Seed Initiatives. Forty-three youth and eight adult program
coordinators received 20 hours ot training required for implementation of the program.
OUTREACH, EDUCATION, AND TRAINING
Division staff participated in a wide range of outreach, technical assistance, and training events
concerning the application of mediation and violence prevention strategies, including advanced trainings
for mediators; trainings for experienced mediators to coordinate or participate in futine CIT activity;
the Federal Reserve Bank's 2004 Life Smarts Youth (Consumer Education competition; workshops tor
middle school and high school students; the 11''' Annual Peacemakers Sunmtit fot middle and high
school mediators; and the North Shore Peer Mediators' Summit. In addition to outreach events centered
specifically on mediation, division staff served as members of an AGO training team that provided
workshops to schools and students about bullying, harassment, and hate crimes. Division staff also
sei-ved on the Attorney Generd's Children's Protection Project, Diversity Committee, Post-9/ 1 1 Working
Group, Massachusetts Task Force on Hate Crimes, and Affordable Housing Initiative.
184
PUBLIC PROTECTION BUREAU DIVISION Ol- PUBLIC CLIARITIES
DIVISION OF PUBLIC CHARITIES
The Division of Public C^harities can ics out the Attoriic)' (Iciicral's responsibilities to represent tlie
public interest in the proper solicitation and use oi charitable kinds, and to "enforce the due application
of funds ^iven or appropriated to public charities within the Comiiionvvealth and prevent breaches of
trust in the adnunistration thereof. " Ci.L. c. 12, § 8. A public charity is an entit}' which is non-profit,
whose purpose is charitable, and that benefits a portion of the public; in addition to philanthropic
oii^anizations, examples of public charities include non-profit hospitals, schools, social service providers,
and cultural organizations.
Enforcement of laws requiring accountabilit)' b\' public charities is central to di\ ision 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. Ihe registrations and financial reports are public records, and
the division maintains public viewing files. More than 22,000 charities are registered with the division
in addition to over 300 professional fundraisers presently soliciting donations on behalf of charities in
Mitssachusetts.
In addition to 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.
The division engages in corporate governance and oversight initiatives, whether directed at health
care organizations or other kinds of charities, to ensure that the governing boards of these institutions
have carried out their fiduciary duties of due care and lo\'altv. The division also continued its activities
in two areas central to its mission: 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.
1 he division recognizes that charities provide vital services in our communities while both enjo}Mng
certain benefits from their t.ix-exempt status and assuming certain obligations. As a result, the division
was involved in a number of initiatives intended to strengthen the charitable sector, including
presentations to various public groups and bar organizations on charities issues, issuing the divisions
annual report on charitable fundraising, and circulating for review and comment proposed legislation
to strengthen the financial integrity and governance of charities.
185
I'LJBl IC ['r<OTCC-flON BLlREALi I )IVISION OF PUBLIC CHARITIES
I'he Public Charities Division included Jamie Katz, Chief; Marion Antonucci; Leslie Bennett;
Amy Biyson; Caitlin Calder; Sandra Cardone; Eric Carriker; Brant Casavant; Patricia Clifton; Kevin
Fennessey; Daniel Ferullo; Ann Ciroux; Bernard Greene; Ann Higgins; Cathy Hoffman; Teneile Jones;
Beth McGillicuddy: Kathleen O'Conneil; Johanna Soris; Elizabeth Story; and Plric Svvansburg.
SIGNIFICANT CASE SUMMARIES
CHARITY GOVERNANCE
The Attorney General's oversight of charitable corporations focuses on stewardship by charit)' boards
of directors. The division may become involved when directors breach their individual fiduciary' duties
of due care and loyalt)' or to prevent the misuse of charitable funds. In some cases, the division has
engaged in investigations and then negotiated governance agreements that provide for reforms in how
charities will operate. In other cases, the division filed enforcement actions in court after investigations.
• Cambridge Credit Counseling Corp. Cambridge Credit Counseling Corp. (Cambridge
Credit), a non-profit corporation based in Agawam, Massachusetts, is the second largest credit
counseling corporation in the country. It holds itself out as providing credit counseling services
to individuals that have amassed excessive credit card debt. In the spring of 2004, the Attorney
General sued Cambridge Credit in state court for violating both charities and consumer
protection laws. The complaint alleges a host of allegations, including:
• the foimders ol Cambridge Credit John and Richard Puccio, set up Cambridge Credit to
funnel hands to for-profit companies that they, and other company insiders, owned and operated
in violation of their fiduciary duties to the charit}-;
• the Piiccios and others gave themselves excessive compensation Irom Cambridge Credit in
the form of both direct and indirect payments;
• Cambridge Credit made substantial misrepresentations to consumers about the nature of
its operations to induce individuals to use its services; and
• Cambridge Credit charged consmners excessive fees for the services it provided.
The State of North Carolina also sued Cambridge Credit, and the Internal Revenue Service
announced that it was examining Cambridge Credit and other credit counseling companies. While
Cambridge Credit has since changed its operations and fees in response to concerns raised by state and
federal regulators, the Office of the Attorney General has not \'et resoKed his case against the company.
186
I'UBLIC I'ROTECnON BL'RLAD OIVISION Oi- PUBLIC CHARH 11:^
• IBA/David Cortiella IBA, a non-profit community development corporation based in
Boston's Soiitli F.nd, controls certain housing developments, and offers social services and
programs primarily tor Hispanic residents. In late 2003, the board ot IBA determined that its
CEO, David Cortiella, had taken over $180,000 as compensation from IBA and its affiliate
without the board's knowledge or consent, and had entered into the purchase of some property
without the lull, formal approval of the board. IBA removed (Cortiella and then tried to forge
a settlement with him to get back funds. "When Cortiella would not enter into a settlement
with IBA, the Attorne\'(iener.il entered the negotiations, and indicated an interest in becoming
active in a lawsuit brought by IBA against Cortiella. At that point, Cortiella agreed to enter
into a Consent Judgment that required iiim to pa\' back $172,000 to IBA, and that barred him
from serving as a fiduciary of any Massachusetts charit\- h)r four years.
• Swedenborg Church In the fall of 2003. the division issued a (^ivil Investigative Demand
to the trustees of the Boston Society of the New Jerusalem, Inc., a Swedenborgian church in
Boston. After reviewing the documents and financial information it received from the church,
the di\'ision tletermined that the officers of the church IkkI allowed certain officers, directors,
and employees to receive excessive compensation and too much in the way of direct and indirect
benefits. Officers and directors of the church had both dissipated and improperly spent
considerable funds of the church. The Attorney Ceneral and the church entered into a Consent
Judgment in state court that required the church to implement a series of governance and
financial policies and controls and that called for continual scrutiny of the church. The division
continues to monitor the church to ensure that its leaders comply with the provisions of the
Consent Judgment and charities laws.
I^OR-PROFIT ACOUISITION.S
Ihe Public Charities Division continued to review 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 necessar\' 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. The division reviewed
a number of proposed transactions and either agreed to the transactions or negotiated resolutions.
RF.\-1E\V OF ASSET [:)LSPOSITIONS
A charitable corporation must give 30 days advance written notice to the Attornc}' Ceneral 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 the corporation conducts.
187
PUBLIC PROTECTION BUREAU DIVISION OF PUBLIC CHARITIES
G.L. c. 1 80, § 8A(c). On a regular basis and in substantial volume, tlie division reviewed correspondence
and documents about transactions involving 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 publics interest in the disposition of charitable assets, the
Attorney General is a party to all voluntary dissolutions of charitable corporations under CL. c. 180,
§ I lA. After review, negotiation of necessary modifications, and assent by the division, the dissolving
charity files the pleadings in the Supreme Judicial Court. Ihe division reviewed numerous transactions
involving proposed dissolutions, including devoting considerable attention to the ongoing dissolution
of Bradford College in Haverhill.
SOLICITATION OF CHARITABLE FUNDS
Under CL. c. 68, § 19, every charitable organization that intends to solicit funds from the public,
except religious organizations, must apply to the division for a solicitation certificate before engaging in
lundraising. Upon receipt, the division reviews certificate applications lor compliance with statutory
requirements. Unless there is a deficienc)' in the application, all certificates are issued within a 10-day
statutory period.
The Attorney General takes affirmative legal action against charities and professional fijndraisers
for unfair or deceptive solicitation practices and to enforce their fiduciar)' duties with respect to funds
raised. In addition to injunctive relief, the Attorne\' General ma\'seek restitution of funds intended b\'
the public to benefit a specific charity, or particular charitable purpose, along with penalties and fees.
Cancer Fund of America In 2000, the division sued this charit\' in Worcester Superior Court
for fraudulent fundraising. Telemarketers hired by Cancer Fund of America (Cancer Fund)
would tell prospective donors that the national charity would give direct financial support to
cancer patients and their families. In fact. Cancer Fiuid received contributions of outmoded or
discontinued diapers, toys, and other consumer goods from manufacturers and then, during
the period in question, sent them on to hospices. The division continued with discovery and
preparation for trial.
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. The division continued to handle a large volume of cases in this area involving
matters such as propcsed allowance of accounts, will compromises, sale of real estate, change of purposes
188
I'UBLIc; I'ROrtCTION BURtALI DIVISION OF PUBLIC CHARITIES
or beneficiaries oF charitable trusrs and bequests, amendment of charitable trusts to meet IRS
rec]uiremcnts, aiul terniination of charitable trusts under CI., c. 203. § 25.
STATISTICAL SUMMARY
CHARITABLE CORPOR.ATION DISSOLU llONS
1 he division assented to 1 1 1 final judgments dissolving charitable cor[iorations pursuant to CL.. c.
ISO, § II A.
WILLS. TRUS IS. AND OTHER PROBATE .S TAILS llCS
The division received and reviewed 1,033 new wills, and received and reviewed 1 ,76S interim
accounts for executors and trustees as well as 632 final accounts. In addition, the division received,
reviewed, and assented to 58 petitions tor licenses to sell real estate, and received and reviewed 528
miscellaneous complaints and filings.
CHARITABLE ORGANIZALIONS: REGISLRATION AND ENFORCEMENT
The division processed approximately 18,060 annual financid reports, and annual filing tees totaled
S i ,869,400. Ihe division reviewed numerous new organizations, determined them to be charitable,
and registered them. Each organization w,is sent the division's packet ot information about the divisions
registration and filing requirements.
As part of an ongoing compliance program, division staff contacted charities whose annual filings
were deficient or delinquent to rectif}' filing deficiencies.
REGISTRATION OF PROFESSIONAL SOLICITORS AND FUNDR.\ISING COUNSEL
Under C.L. c. 68, §§ 22 and 24, all persons acting as professional solicitors, professional fundraising
counsel, or commercial co-venturers, in conjunction with soliciting charitable organizations, must
register annual!)' with the division. Solicitors and commercial co-venturers must also file a surety bond
in the amount of 510,000. All fundraisers must also file with the division a copy of each fundraising
contract, which they sign with an\- charitable organization, and solicitors must later file a financial
return regarding each fundraising campaign.
The division received and approved 343 registrations, resulting in $66,900 in fees to the
Commonwealth. Registrations were received from 109 solicitors, 150 fundraising counsel, and 84
commercial co-venturers.
189
PUBLIC PROTECTION BUREALi DIVISION OF PUBLIC CHARITIES
MONEY RECOVERED FOR THE COMMONWEALTH TREASURY
Charitable Registration Fees $1,869,400
Fundraiser Registration Fees 66,900
Other fees, requests for copies, requests
for computer information 1 ,859
TOTAL $1,938,159
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
HEALTH CARE INITIATIVES
The division focused much of its effort on health care, participating in a variet)' of efforts to aiiah'ze
and stabilize the liealth care sector. Consistent with the Attorney Ceneral's strong interest in resolving
problems related to the delivery of health care, the division monitored the actions of a number of the
significant nonprofit health care institutions that are public charities in Massachusetts, including both
hospitals and insurers. The division, with personnel from the Public Protection Bureau, reviewed and
monitored the finances and operations of a number of financially distressed Massachusetts hospitals.
CareGroup The division continued to monitor the financial and operating condition of
CareGroup and its affiliates (Beth Israel Deaconess Medical (Jenter, Mt. Auburn Hospital, and
New England Baptist Hospit;il). Division staff reviewed substantia amounts of financial and
operational data and met regularly with representatives of the system and the affiliates. In
addition, division and Office staff worked with experts hired by the Office to assess, on a
regular basis, how effectively the board and officers of the health care system were performing
in turning around the systems finances.
LEGISLATION
The Attorney General has circulated within the Ma.ssachusetts charities commimity a piece of
prospective legislation that would improve the financial integrity of charities as well as improve their
governance. Among other things, this proposed legislation called for board certification of organization
financial submissions, audit committees, whistleblower protections, stronger standards for setting
compensation and for related parry transactions, and enhanced remedies [or the Attornes' General.
190
PUBLIC PROTECTION BUREAU UTILITIES. DIVISION
TECHNOLOGY AND PUBLIC ACCESS
Ihe dix'isioii iinplenietucd a new comjnitcr ihitahasc tor charities that arc registered with the chvisioii.
While tliat database will not be accessible to the [uibhc, it will allow the division and the Office to
retrieve tar more information about charities than previously wa.s possible. Ihe division is also continuing
to scan images of filed documents into its computers, and this project also will ultimately assist both
information retrieval and compliance efforts, and will allow the public better access to the dociunents.
OUTREACH, EDUCATION, AND TRAINING
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,
di\ision staff sjioke to numerous charitable groups, served on several continuing professional education
panels and national educational conference panels, and contributed to educational publications.
UTILITIES DIVISION
The Utilities Division represents utility consumer interests and is authorized to inter\'cne in
administrative and/or judicial proceedings on behalf of consumers in connection with any matter
involving the rates, charges, prices or tariffs of an electric, gas, telephone or telegraph company doing
business in the Conmionwealth and subject to the jurisdiction of the Department of Telecommunications
and Energy (DTE). G.L. c. 12, § HE. The divisions work is carried on before state and federal courts
as well as administrative regulatoi^' bodies such as the DTE, the Feder;il Energ)' Regulatory Commission
(FERC), and the Federal Communications Commission (FCC).
In Fiscal Year 2004, the division focused on advocacy' of consumer interests in connection with
traditional utility rate cases (electric, gas, and telephone), and wholesale electric restructuring issues.
Work continued among interested parties to enhance the service c]ualit}' provided b\' the state's utilities.
The Utilities Division staff included Joseph Rogers, Chief; Edward Bohlen; Wilner Borgella; James
Callanan; Michelle Cataldo; Alexander Cochis; Kerryn Fernandes; Mar)' Flohr; Patricia Kelley: Judith
Laster; Colleen McConnell; Timothy Ncwhard: Doe Pichard; and Karlen Reed.
191
PUBLIC PROTECTION BUREAU UTILITIES DIVISION
SIGNIFICANT CASE SUMMARIES
UTILITY RATE CASES
• Boston Gas d/b/a KeySpan Energy Delivery New England D.T.E. 03-40 On April 16,
2003, KcySpan filed a general rate case seeking a S6l million annual increase for its distribution
base rates. The company also asked the DTE to renew, and continue indefinitely, its performance-
based regulation that began in 1995. Hearings before the DIE concluded on August 11,
2003. The division filed its initial brief on August 29, 2003, and reply brief on September 17,
2003. On October 31, 2003, the DTE issued an order that reduced KeySpan's requested
distribution rate increase by approximately $30 million a year, adopting several of the arguments
advanced by the division.
• Boston Edison Company, Cambridge Electric Light Company, Commonwealth Electric
Company and NSTAR Gas Company D.'J'.E. 03-47 On April 16, 2003, the Boston Edison
Company, Cambridge Electric Light Company, Commonwealth Electric Company and NSTAR
Gas Company (NSTAR) filed a rec]uest with the DTE for approvd of a new recovery mechanism
related to pension and post-retirement benefits other than pensions (PBOP). The DTE ordered
the tariff suspended until August 1, 2003. The DTE conducted hearings on August 6 and 7,
2003. The division and NSTAR submitted simultaneous initial briefs on August 19, 2003,
and simultaneous reply briefs on August 28, 2003. On October 31, 2003, the DTE issued an
order that reduced NS lAR's collection through its new reconciling pension tarifi for 2004 by
approximately $52 million by adopting many ot the positions ol the division.
• Boston Edison Company, Cambridge Electric Light Company, Commonwealth Electric
Company, d/b/a NSTAR Electric D.T.E. 03-121 On January 16, 2004, NSTAR disked the
DTE to approve tariffs designed to establish standby rates for large- and medium-sized
commercial and industrial customers who have their own onsite, self generation facilities. The
DTE allowed a number of parties with varying interests including DOER, CLE, SEBANE, the
Energy Consortium, companies that sell self-generation units — and companies that install
self-generation units — to intervene, and held eight days ol evidentiary hearings. On June 4,
2004, the company and several of the intervenors filed a setdement agreement with the DTE.
The division asked the DTE to modify the settlement agreement: (1) that standby rates in the
agreement, along with the exemptions to certain onsite generating customers, be only temporar)';
(2) that the settlement standby rates include a contract demand transition charge, contract
demand transmission charge and an administrative fee to prevent under- recovery of distribution
system costs; and (3) that NSIAR perform studies and analyses on the type, amount and
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I'L'BLIC PROrtCI ION BL'RLALI IJ IlLI IIUS DIVISION
benefits of onsite generation units on the distiibution system. This matter is pending at the
end of the fiscal year.
HLEC TRIC MAI THRS
FERC VHOLHSALE RATE ISSUES
• New England Regional Transmission Organization FERC Docket No. ER04-157 ISO-
New England (ISO-NK) filed a proposal with FERC to create a "New England only" Regional
Transmission Organization (RTO). In addition, the New England transmission owners filed a
separate-btit-related proposal to increase their FERC authorized return on equity (ROE) for
building new transmission lines. The division led other New England AC Offices and Consumer
Advocates in writing a joint letter to the NEPOOL participants, urging rejection of the proposal
because it provides few, if any, benefits to customers, is expected to cost customers S4() to $70
million annuall)' in increased rates, and isolates ISO-NE. from accountability to market
participants. On October 3, 2003 NF'POOL voted overwhelmingly (80/20) to reject the
proposal.
The division, along with consumer advocates horn Maine, New Hampshire, and Connecticut,
filed written comments asking FERC to reject both the RTO and ROFl proposals. On March
24, 2004, the FERC issued an order approving the RTO, but setting the matter of the
transmission owners' authorized rate ot return for hearing. On April 23, 2004, the division,
with the Attorney Ceneral of the State of Rhode Island, and the Rhode Island Division of
Public Utilities and Carriers, filed a Request for Rehearing of the FERC's decision to accept
without suspension or hearing, a 50 baiis point adder to the ROE. The Commission appointed
a settlement judge, but no agreement was reached and the matter remains pending at the end of
this fiscal year.
• Devon Power LLC, et al. FERC Docket No. ER03-563-030 On March 1, 2004, ISO-
NE proposed comprehensive locational installed capacitj' (LICAP) charges tor New England.'
ISO-NE's proposal, which it hopes will provide incentives for the construction of new generating
plants, would require ratepayers in the Boston metropolitan area (Northeast Massachusetts/
Boston or "NEMA") to pay approximately $8.2 billion extra to the regions electric generators
over the next five )'ears. In March 2004, the division, with the Rhode Island Attorney Ceneral,
and the Rhode Island Division of Public Utilities and Carriers, filed written contments protesting
' ICAP (Installed Cap.icity) is the anioiiiit ot generation ISO-NE requires, on a regional basis, to meet its reliability
requirements under certain contingency conditions (tor example, loss oF the largest generating unit or a key
transmission line).
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I'L!BLIC PROTECTION BUREAU UTILITIES DIVISION
the filing. On June 2, 2004, FERC issued a decision deterring implementation of the proposed
ISO-NE l.ICAI' plan until January 1, 2006, and oidering an evidentiary hearing and
comprehensive examination of the issues raised in the plan. This matter is pending at the end
of this fiscal year.
• Salem Harbor Power Plant FERC Docket No. ER04-84 1-000 U.S. Gen New England
asked ISO-NE tor permission to retire the Salem plant, claiming that it could not afford the
$175 million oi equipment needed to comply with DEV air regulations that require sulfur
dioxide and nitrogen oxide reductions. ISO determined that the Salem Harbor units cannot
be retired because they are needed to maintain reliable power on the North Shore and in
downtown Boston, absent additional generation or transmission. On May 14, 2004, U.S. Gen
and ISO-NE filed a "Reliability Agreement" for approval with FERC that would authorize
ISO-NE to charge the $85 million cost of proposed environmental upgrades to NSTAR, N-
Grid, and municipal utilities in the northeast Massachusetts area, which would in turn charge
their customers. On June 4, 2004, the division filed written comments protesting the filing.
This matter is pending at the end of this fiscal year.
ELECTRIC UTILITY TRANSITION CHARGE RECONCILIMIONS
The transition charge is a mechanism established by the Electric Restructuring Act of 1 997 for an
electric distribution company to recover its allowable stranded costs as a charge to customers. A company
must annually reconcile or "true-up" its forecasted transition charges with the amount it actually recovered
through its rates. G.L. c. 164, §§ lA(a) and 220 C.M.R. § 11.03(4)(e). The division reviews the
filings to ensure that companies recover onh' costs permitted by the Restructuring Act.
• Boston Edison Company D.TE. 02-80A (Phase II) Boston Edison Company filed its
2002 reconciliation filings on its transition charge, energy efficiency, renewable charges, and
other matters. After the division issued inlormation requests and held settlement discussions,
the company agreed to reduce its Default Sei'vice deferral by $344,925, to incorporate the net
cost impact of the class-action suit in Lawyer, et al. v. NSTAR Electric & Gas Corporation, et
aJL, Civil Action No. 01-181 7-C (Suffolk Superior Court), addressing the improper classification
of certain Standard Offer Service Customers as Default Service, and to correct a calculation
error of $389,000 in the spreadsheet used to Ciilculate the incentive bonus. On November 6,
2003, the D TFl approved the Settlement and customers received a $733,925 lefiind.
• Cambridge Electric Light Company and Commonwealth Electric Company D.TE. 02-
80 After the division issued intormation requests ami held settlement discussions on the
companies' 2002 transition charge reconciliation adjustment filing, the companies agreed to
194
I'llBLIC I'ROrtCTlON BURtAU UTILITIES DIVISION
reduce their Default Senicc deferral b)' $251,721, to incorporate the net cost impact of the
class-action siiii in [)\v\er, et al. v. NSIAR F.lectric & Cias C'orporation. et al . The DIE
.ipprovetl the Scitlenient and customers received a $25 1,721 refund.
Hl.fX: FRIC INDUSTRY RESTRUCTURING-RELATED CASES
• Massachusetts Electric Company and Nantucket Electric Company D.T.E. 03-67 The
company asked the DTE to approve an amendment to the companys Standard Coffer supply
contract(s) with C^onsiellation Power Source, Inc., that would resolve a deliver)' point/congestion
cost dispute b\' allowing the conipain' to pay Constellation an ailditional annual fee, recovered
from customers, of $3.2 million. On July 17, 2003, the division urged the DTE to reject the
company's proposed amendment because it violated the express terms of the company's
Restructuring Settlement Agreement and only FERC, had jurisdiction over the standard offer
agreements. On August 20, 2003, the DIE declined jurisdiction over the amendment, saving
customers $3.2 million per \'ear.
• Investigation Into the Costs That Should Be Included in Default Service Rates D.T.E.
03-88 On April 24, 2003, the DTE issued an order that addressed, among other things, the
types of costs that should be included in default service rates. On November 17, 2003, the
DTE opened separate proceedings for each distribution company to determine ( I ) the amount
of costs to be transferred from base rates to default service rates and (2) the appropriate adjustment
to be applied to each rate class's distribution base rates. The electric companies made filings on
Januar\- IS, 2004. 1 his matter is pending at the end of the fiscal vear.
• Massachusetts Electric Company and Nantucket Electric Company D.T.E. 03- 1 23 On
November 25, 2003. the DTE issued a Notice of Filing and Request for Comments on the
petition of Massachusetts Electric Company and Nantucket Electric Company for approval to
maintain the standard offer service fiael adjustment at current levels and for approval of an
information program called Now Is the Time to Choose . Fhe company hoped that fixing the
Standard Offer Service rate would allow coftipetitive suppliers to offer lower prices to customers,
creating incentives for customers to move from the higher fixed standard offer service rates, and
establishing a more competitive market. On December 17, 2003, the division urged the DTE
to reject the company's proposal because it is contrary to the public interest and is inconsistent
with the company's Restructuring Settlement Agreement and DIE precedent. The company
then withdrew its proposal.
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PUBLIC PROTECTION BUREAL' UTILITIES DIVISION
NATURAL GAS
APPEALS
• Fitchburg Gas and Electric Light Company D.T.E. 99-66 The company appealed the
DTE's May 31, 2001, decision finding that the company had double-charged customers gas
inventory financing charges, and ordered the return of approximately $1.5 million in over-
collections, including interest, over a 10-year period. Ihe Supreme Judicial Court heard oral
argument on October 8, 200.3, and, on January 8, 2004, upheld the D'FE's decision. L'pon
remand, the company agreed with the division to accelerate the refund of the over-collections
and return the funds to customers in a three-month period, rather than over the remaining 10-
year period, resulting in customer savings of $380,000.
NATURAL GAS COMPANY FINANCING
• Berkshire Gas Company D.T.E. 03-65 On September 15, 2003, Berkshire Gas Company
filed a petition for approval of a financing plan involving the issuance of long-term debt securities
in an amount of up to $20 million pursuant to G.L. c. 164, § 14. The division intervened and
filed a brief noting that the company failed the net plant test, should not be allowed to issue
securities ovet $7 million and should not be allowed to engage in speculative financial derivative
transactions as part of its proposiJ. The DTE issued an order agreeing with the division and
allowed the company to issue securities of up to only $7 million, unless the company could
meet the net plant test for the desired additional amounts.
TELECOMMLFNICATIONS
RE1AIL RATES
• Wireline E91 1 Surcharge D.T.E. 03-63 On May 29, 2003, the DTE, in response to the
Acts of 2002, c. 239, § 1 , requiring a customer surcharge for Emergency 91 1 service, opened a
docket to set the interim E-911 services surcharge for all residential and business telephone
customers in Massachusetts. Verizon and the Statewide Emetgency Telecommunications Board
filed a joint proposal for an interim surcharge of $.85 per iTionth per customer (c;ilculated over
five years). The division intervenetl and urged the DTE to fully investigate Verizon's claimed
E-91 1 deficit. The DTE approved Verizon's interim surcharge but required the Company to
audit the E-91 1 costs. On March 4, 2004, the DTE selected Ernst and Young as the auditor.
This matter is ongoing at the end of this fi.scal year.
WHOLESALE RATES
• Mass Market UNE Impairment Review D.T.E. 03-60 On February 20, 2003, the FCC
outlined new rules governing incumbent local exchange carriers" (ILEC) obligations to make
portions of their networks available for the ma.ss market as unbundled network elements (L'NE).
196
IHIBLIC PROTECTION BURLAU UTILITIES DIVISION
The FCC issued its Triennial Review Order on August 21 , 2003, to take effect on October 2,
2003. riie D 1 H opened its investigation into die mass market but suspended its proceedings
after the D.C. Circuit C.ourt of Appeals vacated and remanded some ol the FCXis UNE rules.
The U.S. Solicitors Office declined to appe.d the D.C. Circuit's decision, and the U.S. Supreme
Court declined to hear the pending motions to stay. The matter remained pending at the end
of the fiscal year.
• Voice Over Internet Protocol (VoIP) Rulemaldng F.C.C. Docker \VC 04-36 The FCC
opened a rulemaking docket in March 2004 on Voice Over Internet Protocol (VoIP), a new
method of transmitting telephone calls over the Internet, minimizing the use of the public
switched telephone network. VoIP and other IP-enabled telephony service providers are
marketing their products as low-cost, highly flexible alternatives to traditional phone service.
The FCC s(5ught comments, due July 14, 2004, on whether VoIP scr\'ices should be considered
an information service (unregulated) or a telecommunications .ser^'ice (regulated).
• NASUCA Truth in Billing Petition F.C.C. CG Docket No. 04-208, 98-170 The division
helped draft a petition the National Association of State Utilit)' Consumet Advocates (NASUCA)
filed with the FCC on March 29, 2004, asserting that long-distance and cell phone carriers are
passing along their ordinary operating costs as "regulatory compliance"' fees in monthly line-
item surcharges on consumers' bills. NASUCA asked the FCC to investigate this practice and
to reject surcharges that are labeled as "regulatory" but are not mandated or investigated by
federal, state, or local governments. On May 25, 2004, the FCC docketed the petition.
WIRELESS TELEPHONES
• National Association of Attorneys General Wireless Inquiry 1 he division and CPAD
helped lead a joint effort by 32 state Attorneys General ro investigate the rates, terms, and
conditions of Verizon Wireless, Cingular Wireless, and Sprint PCS. The three carriers agreed,
with an assurance of voluntary compliance, ro a 3-da)' return polio' that allows consumers to
return their cell piione for any reason, and pay for only actual usage and lees that are related to
actual usage; to make clear and conspicuous disclosures during a sales transaction, including
telemarketing and Internet sales, which include (a) rate plan area, (b) recurring monthly service
charges, (c) number of peak and off-peak minutes, (d) hours when peak and olL-pcak minutes
apply, (e) charge for overtime or excess minutes above allowance, (f) charge for long-distance
minutes, (g) charge for off-network or roaming minutes, (h) minimum contracr term, (i) early
termination fee, (j) activation or other service initiation fees, (k) material terms of the cancellation
and return policy and applicable charges, (I) discretionary monthly charges, (m) promotional
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PUBLIC PROTECTION BUREAU L ■IILIIIES DIVISION
price disclosures, and (n) fiee-to-pay conversion disclosures; to separate taxes, fees, and other
charges in a consumer's bill; to provide a toll-free number to consumers so that they can contact
the carrier with concerns; to explain the basis for using the advertising terms, such as "nationwide,"
"national," and "coast-to-coast;" to provide consumers, at the time of sale, written disclosures
detailing the rate plan and enhanced features; and to disclose in their advertising any limitation
to a free offer. The wireless carriers also agreed to a financial settlement of $5 million;
Massachusetts will receive $425,000 as its share of the settlement proceeds.
STATISTICAL SUMMARY
The Utilities Division avoided incrca.sed rates or achieved refunds or settlements of approximately
$87 million:
KeySpan Energy Delivery New England, D.T.E. 03-40 $30 million
Boston Edison Company D.T.E. 02-80A $733,925
Cambridge Electric Light Company and
Commonwealth Electric Company, D.T.E. 02-80 $251,721
Massachusetts Electric Company and
Nantucket Electric Company, D.T.E. 03-67 $3.2 million
Boston Edison Company, Cambridge Electric Light
Company, Commonwealth Electric Company and
NSTAR Cas Company D.T.E. 03-47 $52 million
Fitchburg Cas and Electric Light Company D.T.E. 99-66 $380,000
NAAC Wireless Inquiry $425,000
TOTAL $86,990,646
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PUBLIC PROTLCTION BUKLALi UTILITIES DIVISION
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
LOW-INCOME CUSTOMER INITIATIVES
Increasing the Penetration Rate for Discounted Electric, Gas, and Telephone Service D.T.E. 01-
106 Oil December 17, 2001, the I) IF, opened .i formal investigation into increasing the participation
in discount programs available to eligible k)w-income customers for gas, electric, and iele[)hone discount
service. On Jul\- 2, 2003, the division submitted comments supporting a proposal for utilities to
electronicall)' transfer all residential accounts to the Executive Office of Health and Human Services
(EOHHS) for the sole purpose of identifying customers eligible for discounted service (with destruction
of non-matching data). On August 8, 2003, the DTE ordered the utilities to begin a computer-matching
program with EOHHS, and indicated that it would consider proposals for rate recover)' of increased
expenses resulting from the computer-matching program in a second phase. On August 28, 2003,
NS I'AR nied a motion for reconsideration or, in the alternative, clarification of the DTE's order that
the transfer of customer information will not commence until the DTE rules on recovery of the costs
of the program's implementation. This matter remained pending at the end of this fiscal year.
The Enhanced Outreach Program The Enhanced Outreach Program was developed its a settlement
among NSTAR, the Attorney General, and the Low-Income Energy Affordability Network (LEAN),
and the DTE approved it on August 3 1 . 200 1 . The Program increases low-income customer participation
in energy efficienc)' programs and prevents the shutoff of low-income ciustomers who are in arrears on
their electric bills. In order to be eligible for the Program, customers agree to participate in credit
coimseling by local Community Action Programs and in utility efficiency programs. In exchange, their
electric bill arrears are paid and utilit)' shutoff is prevented. The Program is funded from monies paid
to Commonwciilth Electric Compan\- for the replacement of power costs it incurred in connection
with an outage at Boston Edisons Pilgrim Nuclear Power Station ( Commonwealth Electric Company ,
D.RU. 89-3C-2(1990)).
1 he parties to the settlement reviewed the Program and made three modifications designed to
enhance its success: (1) revised the eligibilit\- requirements to include those customers who have not
been involved in an approved energ)' efficienq' program at the current residence within the previous 12
months; (2) modified the schedule of arrearage reduction so that arrears forgiveness will be made in
two installments, the first installment of approximately one-half of the allotted funds credited to the
customer's account in Month One of the Program, and the remaining installment credited to the
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PUBLIC PROTECTION BURLAL; 11 ILITIES DIVISION
customers account upon successful completion of the Program; and (3) the company agreed to monitor
the electric accounts of Program participants for 18 months following the customer's successful
completion of the Program, and report back to the Settling Parties. The DTE approved the modifications.
SIGNIFICANT F.NHRGY FACILITIES SITINC, ACTIVITIES
Cape Wind Offshore Wind Farm Wind Public Outreach and Education Initiative The division
participated in the Massachusetts Technology Collaboratives (M TC) stakeholder process to deliberate
issues surrounding Cape Wind's proposal to develop a wind larm on Horseshoe Shoal in Nantucket
Sound. The MTC invited more than 40 key individu;ils representing the interests of the Cape &
Islands, as well as state and federal agencies and elected otficials to participate in this process. The
division also monitored siting issues before the Energy Facilities Siting Board, Petition of Cape Wind
Associates, LLC and Commonwealth Electric Company d/b/a NSTAR Electric for Approval to
Construct Two New 1 15 k-V Electric Transmission Lines in the Towns of Yarmouth and Barnstable
EFSB 02-2/D.T.E. 02-53.
Weavers Cove, L.L.C. Liquefied Natural Gas (LNG) Facility Weaver's Cove, L.L.C. has applied
to FERC for permission to build a LNG fitcilit)' and terminal on the banks of the Taunton River in Fall
River, Massachusetts. By long-standing agreement with the Energy Facilities Siting Board, FERC has
exerted exclusive jurisdiction over LNG facilities. The division intervened in the proceeding and sent
a letter to FERC Chairman Pat Wood informing him about significant community opposition and
requesting his assistance to ensure the public safety ol the surrounding communities.
UTILITY SERVICE QUALITY
Utility Service Quality The division continued to examine the issue of utility service quality,
working with consultants, unions, customer groups and other interested parties to review service quality
performance of Massachusetts-based companies in comparison to each other and in other states based
on identifiable performance measures. In June 2004, the division received a report hom its consultants.
Energy Advisors, LLC, containing recommendations to improve service quality standards and oversight
in Massachusetts, and recommendations and proactive steps to achieve this goal. This project is ongoing
at the end of the fiscal year.
Berkshire Gas Company's 2002 Service Quality Report I). LE. 03-1 1 On March 12, 2003, the
DTE solicited comments on the 2002 Service Quality Report (SQ Report) filed by Berkshire Cias
Company (Berkshire). The division asked for evidentiary hearings, but on September 30, 2003, the
DTE issued a Final Order approving Berkshire's SQ Report without holding hearings. On October
20, 2003, the division filed a Motion for Reconsideration with the DTF", renewing the request for an
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PUBLIC I'ROTECTION BUREAU UTILITILS DIVISION
evidentiary hearing to resolve a dispute ot material fact regarding Berkshire's compHance with the
staffing level requirements of (i.I.. c. 164, § IH. The division awaits the DTEs ruling on the Motion
tor Reconsideration.
CABI.F, TELEVISION
The Division Chief was appointed as the Attorney General s representative to the Legislatures
Special Commission to Conduct an Investigation and Study Relative to the Adequacy and Effectiveness
of Existing Licensing and Regulation of the Cable Television Operations by Municipalities and the
Commonwealth. The Commission reviewed testimony gathered horn three public hearings and filed
its final report with the Joint Committee on Government Regulations on December 30, 2003. Division
statt prepared and presented a draft cable consumer bill of^ rights to be included in the final report.
OUTREACH, EDUCATION, AND TRAINING
1 he division, working with the AG Elder Hodine, made several presentations to elder groups on
telephone and consumer hand issues.
201
REGIONAL OFFICES
Western Massachusetts
Central Massachusetts
Southeastern Massachusetts
RLGIONAL(.)lt-IC:ES WESTERN MASSACHIJSEI "IS DIVISION
WESTERN MASSACHUSETTS DIVISION
riie Western Massachusetts Division (WMA Division) of the Office of tlic Attorney General,
located at 13'iO Main Street, Springfiekl, ami a pan ol the Regional ( )perations Division of the Executive
Bureau, is responsible lor handling altnniative Lriiuinal and civil investigations and litigation, as well as
civil defensive litigation and administrative law matters arising in the four Western Massachusetts
counties: Hampden, Hampshire, Franklin and Berkshire. The Government Bureau's state-wide
Mimicipal Law Unit also is housed in the ^X'estern Massachusetts Division, and provides b\'-lavv review
and approval, as well as training and advice to town and mimicipal officials throughout the state. I'he
Business and Labor Protection Bureau (BLPB) Fair Labor Division's Western Massachusetts office is
responsible for enforcing the state's wage and hour laws on behiilt of the citizens of Western Massachusetts.
The division ;ilso responds to a large number oi consumer complaints, and provides educational outreach
to area residents.
The division consists of the following full-time staff members: a division chief, deputy division
chief, 12 assistant attorneys general, two civilian investigators, a consumer liaison, one investigator
assigned to the BLPB's Medicaid Fraud Gontrol Unit, four Massachusetts State Police Officers, four
Fair Labor Division inspectors, one administrative assistant, one paralegal, and six support staff
During Fiscal Year 2004, the Western Massachusetts Division staff included: Janice He;ily, Division
Chief; Michelle Aube; Bruce Bussiere; James Clark; Susan Decker; Susan DeVine; Jonathan Driskell;
Joseph Drz}'zga; Robyn Gay; John Gibbons; Sandra Giordano; Bart Hollander; Timothy Jones; Karen
Kapusta; Michael Konderwicz; Kelli Lawrence; Tom Nartowicz; William O'Neill; Robert Ritchie;
Michael Russo; Palmer Santucci; Matthew Shea; Cynthia Sherman-Black; Laurie Simmons; Maria
Smith; Steven Spencer; Christopher Speranzo; Richard Steward; Rosemary Tarantino; Theresa Ukleja;
Eva Wanat; James Whitcomb; and Judy Zeprun Kalman.
SIGNIFICANT CASE SUMMARIES
Fhe following provides an overview of several significant cases undertaken by the Western
Massachusetts Division during Fisciil Year 2004:
BUSINESS AND lAROR PROTF.CTION BUREAU
• Millivision A single non-payment complaint for four- to five-weeks of unpaid wages led to
our negotiating $330,000 restitution for 35 employees from this South Deerfield high-tech
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REGIONAL OF-PICES WESTERN MASSACHUSETIS DIVISION
company. The Office intei-vened to ensure pajmient of $270,000 in prc-bankruptc)' and 556,000
in post-bankruptc)' wages.
• Estes Express Lines, Inc. Fstes Express is a trucking firm in Springfield whose home office
is in South Carolina. Our audit led to a Division of Occupational Safet)' opinion letter confirming
that dock workers/loaders are entitled to overtime pay when they work more than 40 hours in
a week. The company signed a settlement agreement and paid $23,000 in restitution to 44
workers for unpaid overtime.
• Prevailing Wage Enforcement During Fiscal Year 2004, investigators charged with prevailing
wage enforcement issued 28 citations against 25 contractors who failed to pay the prevailing
wage rate and failed to file true and accurate copies of their certified payroll records iis required
under the Massachusetts Prevailing Wage Laws.
CRIMIN.\L BUREAU
• Commonwealth v. lames Doyle Following a juiy trial in December 2003 in Hampden
Superior Court, the defendant was found gLiilt)- by a Superior Court Jury of trafficking in over
14 grams of cocaine. Doyle, a former president of the Outlaw Motorcycle Club in Ludlow,
"The Longridcrs, " sold a quantity of cocaine to an undercover trooper outside a bar in the
Indian Orchard section of Springfield. He was sentenced to three years in State Prison. Assistant
Attorney General Matthew Shea prosecuted the case.
GOVERNMENT BUREAU
• Paul Campana v. Commonwealth of Massachusetts Department of Environmental
Protection; David Howland; Deirdre Doherty Cabral; Mary Holland; Edward Kunce: Alan
Weinberg; David B. Struth The plaintiff was a former DEP employee. He brought numerous
civil rights and defamation claims against several individual defendants and DEP. These alleged
claims arose out of negative relations and performance reviews the plaintiff had with DEP and
his private business of inspecting and designing septic systems under DEPs new Title V
regulations. DEP brought an enforcement action against the plaintiff for violating Title V in
the course of his private business. The plaintiff contended that DEP's pursuit of the Title V
violations violated his civil rights and defamed him because DEP's allegations were without
merit and brought only because he exercised his right of petition and other constitutional
rights when he challenged certain adverse employment actions. The defendants prevailed on
summary judgment that was affirmed by the First Circuit Court of Appeals. I he plaintiff
claimed damages in excess of $400,000.
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RLCIONAL ClinCtS WtS'lERN MAS.SACHUSEITS DIVISION
• Phillip Dzialo, et al. v. Greenfield Communing Colleg e lliis case arose out of catastrophic
brain injuries suftcred b\'an I l-\'ear-i)li.l Ih)\ while at camp at Cireenfield Conitnunity CJollege.
During a water rescue simulation, Adam D/.ialo's foot became cauglit between rocks and he was
submerged for over 20 tninutes. Plaintiffs alleged numerous civil rights and negligence claims
and were seeking over $80 million in damages. The legislature passed special legislation to
settle this matter for $486,000 in addition to the $300,000 offered on the three negligence
claims. Ihe Office ultimately offered an additional $150,000, which was estimated to be the
cost of litigation on the civil rights claim. The Dzialos accepted the total amount ($936,000)
and placed almost all ol it in a structured annuit}' that will payout approximately $100,000 per
year for Adam Dzialo's life. Ail claims were dismissed with prejudice and a complete release was
signed.
• Robert W. Caplette v. Terence H. Buckley and William F. Hetherington. and Robert W.
Caplette v. The Commonwealth of Massachusetts, Executive Office of Health and Human
Services, Department of Mental Retardation (Hampden (x)unt\' Superior CJourt) Ihe plaintiff
alleged that he was defamed, intentionall)- mentally distressed, and interfered with b\' Assistant
General Counsel Buckley and Assistant Commissioner Hetherington during the course of a
claim for workers' compensation benefits. The plaintiff had claimed total and permanent
disabilit)', which was viewed as fraudulent. The Superior Court allowed the Defendants' Motion
for Summar}- judgment and the plaintiff appealed.
Government Bureau Statistical Summary:
As of June 30, 2004, there were a total of 181 Government Bureau cases consisting of 84 Trial
Division cases and 97 Administrative Law Division cases pending in the WMAS Division.
During Fiscal Year 2004, 73 new civil defensive cases were assigned and one affirmative case was
approved for litigation. In addition, one new case was assigned to a volunteer assistant attorney general,
1 3 new cases were assigned to special assistant attorneys general, and a WMAS assistant attorney general
was iissigned to super\'ise the litigation and handling of those cases.
During Fiscal Year 2004, 47 cases were closed b)' division staff.
Total Saved for the Commonwealth on civil defensive litigation cases: $237,248.
Municipal Law Unit Statistical Summary:
During Fiscal Year 2004, the Municipal Law Unit reviewed: 708 general by-laws, of which 632
(89.3%) were approved, 40 (5.6%) were approved with partial deletion, four (0. 1%) were disapproved,
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REGIONAL OF-f-ICES WESTERN MASSACHUSETTS DIVISION
14 (2.0%) were returned with a finding that no action by the Attorney General was required by state
law, and 18 (2.5%) received cautions; 920 zoning by-laws, of which 850 (92.4%) were approved, 41
(4.5%) were approved with partial deletion, seven (0.1%) were disapproved, 1 1 (1.2%) were returned
with a fmdiiig that no action by the Attorney General was required by state law, and 1 9 (2. 1 %) received
cautions; 10 historic district by-laws, of which all but 1 (90%) were approved; 15 charter amendments,
of which all but two (86.7%) were found to be consistent with state law.
PUBLIC PROTECTION BUREAU
Civil Rights Division
• Commonwealth 8c lames Sprowson v. Wheel Estates and Morgan Management (Housing
Court, Western Division) A housing discrimination complaint was filed against the owner and
operator of Wheel Estates, a mobile home park located in North Adams, MA, as the result of
allegations that the park discriminated against a disabled resident by failing to make reasonable
modifications to the common areas of the park in order to provide him with access to these
areas.
Consumer Protection and Antitrust Division
• Commonwealth of Massachusetts v. Scott, et al. (Hampshire Superior Court ) The plaintiff
was soliciting funds for charity after September IT'' without a license or other statutory
requirements. The Superior Court granted the Commonwealths request for an injunction that
stopped the fundraising and required an accounting. Following a trial in Hampshire Superior
Court, the court ruled that the defendants violated several public charities laws and the Consumer
Protection statute by soliciting fimds in the wake of September 1 1''' by failing to register as a
charity and failing to properly account for the funds collected and ordered them to pay $3,500.
SIGNIFICANT INITIATIVES, EFFORTS, AND ACTIVITIES
Government Bureau-Civil Defensive Litigation: I he WMA Division continued to provide the
highest quality of legal representation to agencies and individual state employees required to respond to
litigation filed by members of the public. During Fiscal Year 2004, there were 181 civil defensive
litigation matters active in the division.
Public Protection Bureau-Civil Rights Division: The Attorney General s WMA Division continued
to meet its statuton,' responsibilities to affirmatively prosecute housing discrimination actions throughout
Western Massachusetts and obtained significant settlement results in two housing discrimination ca.ses.
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RL(,ieiNAL01Hc:i-.S WESTERN MASSACHUSETrS DIVISION
During Fiscal Year 2(K)4, the WMA Division also conrinucd with its efforts to assist schools
throuyhont the region in ensuring that stiulents civil rights aie protected. To that end, division staff
participated in numerous outreach and tiaining efforts designed to eilucate school [lersonnel at all
levels regarding the key components of a comprehensive student civil rights policv, along with more
specific trainings focusing on the prevention of bullying, hanissment, hate crime and civil rights violations.
Public Protection Bureau-Consumer Protection and Antitrust Division: Through the efforts of
oiu' divisions C'onsumer liaison, ,is well as the efforts of otu civil investigative staff and local consumer
protection programs that are funded through the Olfice, the needs of consumers throughout the region
were effectively met. Additionally, our division continued ro advance the Attorney General's priorities
in the area of elder protection through cross-bureau outreach and education programs and an elder
protection conference designed to educate senior and elder protection providers regarding scams, fraud,
and abuse.
OUTREACH, EDUCATION, AND TRAINING
During Fiscal Year 2004, staff in the WMA Division were actively engaged in advancing numerous
AGO cross-bureau initiatives and trainings. Division staff advanced the Attorney General's child
protection and school safet\' priorities by providing the Springfield School System with numerous civil
rights training programs h)r school personnel. Ihe Deputy Division Chief, four Assistant Attorneys
(icneral, and six support staff participated in a variety of programs, including the 35''' anniversary of
the Springfield School Volunteers Program. The Division Chief actively participated in the development
of a community-based Weed & Seed Initiative that is targeting the Mason Square section of Springfield
for crime reduction and neighborhood revitalization. The Attorney General's Abandoned Housing
Project also is contributing to this initiative. WMA Division staff also participated at the local level in
the Attorne}' General's Office Holiday To)' and Food Drive by coordinating a clothing and food drive,
as well as a holiday toy drive to benefit ARCH, the YWCA's domestic violence shelter program.
Additionall)', addressing the needs of elder consumers was designated as a priority of the Public Protection
Bureau. Regional staff advanced this priority b)' conducting numerous educational training programs
for area seniors and elder service providers. Staff also volunteered dieir time to the "Spruce Up Springfield"
park cleanup campaign.
In order to foster communication and cooperation among local law enforcement agencies, staff
attended the monthly meetings of the Springfield Violence Prevention Task Force, the Big Brother/Big
Sister Program, and the Peacemaker's Peer Mediation Summit. Assistant attorney general staff ;ilso
actively fostered the Office's relationship with the local legal community through participation in the
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REGIONAL Or-FICES WESTERN MASSACHUSETTS DIVISION
Women's Bar Association, the Hampden Count)' Bar Association, and as panelists for leg;d programs at
Western New England College School of Law. Additionally, staft in the Municipal Law Unit continued
to provide numerous training and educational programs for towns and nnuiicipalities throughout Western
Massachusetts.
Division staff also actively participated in numerous cross-bureau working groups, including the
Diversity Committee, the Web site Committee, the Elder Strike Force, and the Professional Development
Unit working group. Last, Western Massachusetts staff participated in numerous professional
development training programs presented by the Attorney General's Institute.
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RhGIONAL OFFICES CENT RAL MASSACHl.'SETTS DIVISION
CENTRAL MASSACHUSETTS DIVISION
The C'entral Massacluisctts Division (CMA Division) is a regional oHke located at 1 Hxeiiange
Place in Worcester. The CMA Division inclndcs lawsers, inspectors, and administrative staft committed
to promoting Attorney General Tom Reilly's initiatives in the Central Massachusetts region and
responding to the specific needs oi Worcester (bounty residents. During fiscal Year 2004, the CMA
Division comprised members of several of the Attorney General's bureaus and divisions, including the
Business and I .abor Protection Bureaus Fair Labor and Busitiess Practices Division; the Public I'rotection
Bineaus Consumer Protection and Antitrust Division; aiul the (iovei nment Bureau's Trial Division.
In addition to handling cases, the division responded to nimierous calls and in-person visitors from
Worcester Count)' residents and businesses seeking ct)nsumer intormarion, wage and hour assistance,
and requests for educational outreach.
During Fiscal Year 2004, the following staff members worked in the CN'IA Division: Maria Hickey
jacobson. Chief; Salvatore Giorlandino, Assistant Attorney General, Government Bureau; Charisma
Lam, Assistant Attornev General, Consinner Protection and Antitrust Division; Patricia Bopp, inspector.
Fair Labor and Business Practices Division; John Gatti, Jr., inspector. Fair Labor and Business Practices
Division; James Gentile, investigator. Public Protection Bureau; Edward Horniak, inspector. Fair Labor
and Business Practices Division; Alex Guardiola, inspector, Fair Labor and Business Practices Division;
Wend}' Parsons, Administrative Assistant; and Suzanne Uncapher, Legal Secretary.
SIGNIFICANT CASE SUMMARIES
GOVERNMENT BUREAU
1 he Attorney General's Central Massachusetts Division continued to provide the highest c]uality of
legal representation to agencies and individual state employees required to respond to litigation filed by
members of the public. Highlights of the Government Bureau cases handled by the CMA stafif in Fiscal
Year 2004 include:
• Aitken v. Worcester State Colleg e (Worcester Superior Court) Trial held September 1 S
and 16, 2003. Plaintiff demanded $100,000 to settle her claims after she slipped on snow/ice
on the stairs leading from the College's library. Plaintiff fractured her ankle and luiderwent
surger)' to insert screws in her ankle. Jur)' returned a verdict on behalf of Worcester State
College after one-half hour deliberation.
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REGIONAL OFFICES CENTRAL MASSACHUSETTS DIVISION
• Puorro V. Middlesex SherifF lames DiPaola The Appeals Court reversed a Superior Court
judgment against Middlesex Sheriff James DiPaola for Puorro's fiilure to exhaust his
administrative remedies. The SJC subsequently denied the plaintiff's petition for further appellate
review of the Appe;tls Courts judgment dismissing the plaintiff's wrongful termination suit.
Had the plaintiff prevailed, the tot;il judgment would have been approximately $750,000,
which would have included interest dating back to November 1997.
• Clemente v. Attorney General, et al. A single justice of the Appeals Court dismissed Mr.
Clemente's appeal as premature.
• Breneman v. United States, ex. rel. the Federal Aviation Administration, et al. The
Brenemans appealed the U.S. District Court s dismissal of their taking claims against iVlAC on
Eleventh Amendment immunity. The companion case in Worcester Superior Court was also
dismissed, a decision later appealed by plaintiffs.
• Qualey v. CRAB Chapter 30A appeal of CRAB's decision was affirmed.
• LeBlanc v. Board oFAppeal Motor Vehicle Liability Policies and Bonds (Worcester Superior
Court) Motion to dismiss for failure to prosecute was allowed.
• McConville v. Board of Appeal Motor Vehicle Liability Policies and Bonds (Worcester
Superior Court) Motion to dismiss for failure to prosecute was allowed.
• Daniel v. Massachusetts State Lottery Commission (Worcester Superior Court) Defendant s
Motion for Summary Judgment was allowed in a case where the plaintiff claimed the Lottery
denied her a lottery prize.
• Commonwealth v. Anderson Nichols, et al. After mediation, case settled with defendant
agreeing to pay .$175,000 to the Conmionwealth after rhree years of denying liabilit}' and
refusing to make a settlement offer.
• Fafel v. Middlesex Sheriflf lames DiPaola (LJ.S. District Court, District of M;issachusetts)
Defendant's Motion to Enforce Plaintiff's Acceptance of Defendant's Offer of Judgment was
allowed.
• Adoption of Reg gie (and two companion cases) The Appeals Court affirmed the Juvenile
Court's dismissal of a natural father's late appeal from a judgment terminating his parental
rights to the three children. Court adopted the Office's argument on behalf of DSS.
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KtGIONAL OFFICES CENTRAL MASSACHUSETTS DIVISION
• Fisher v. Worcester State Colleg e (Worcester Superior C^ourt) 1 he court allowed the
defeiulaiits morion (o dismiss the pl.iiiuifF's complaint for failure to make proper presentment
pursuant to die Massachuscus Tort (daims Act.
• Settlement Funding v. Lottery Commission (Worcester Superior Court) The com t allowed
the 1 ottcr\s motion h)r reconsideration of the courts Februarv 2003 order denying the
defendant's motion to dismiss. Based on the Appeals Courts decision in Midland States Life
Insurance Co. v. Cardillo , the plaintiff's suit was dismissed as to the Lottcr)' because the plaintiff
was seeking to enforce a lotter)' prize assignmeni contract it had made with the lottery prize-
winners.
• Greeley v. RMV (Worcester Superior C'ourt) The court allowed in part, the Registry of
Motor Vehicle's motion for judgment on the pleadings in a license suspension ciise, but ruled
the suspension period should have ended on December 5, 2003, not February 5, 2004.
• Cruzv. Department of Correction, et al. (Worcester Superior Court) The court dismissed
the plaintiffs negligence claims due to the plaintiffs' failure to comply with the Mas.sachusetts
Tort Claims Act's presentment lequiremetii. The court also dismissed the plaintiffs' federal
civil rights claims on so\'ereign immunity grounds.
• Le ger v. Department of Correction (Suffolk Superior Court) The plaintiff voluntarih'
dismissed this Federal Family and Medical Leave Act case after DOC produced a copy of the
plaintiff's voluminous personnel record to his counsel, which documented his repeated violations
of DOC's attendance policies.
• Ford v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Worcester Superior
Court) - Plaintiff filed 30A appeal after the Board upheld the Registr\' of Motor Vehicles'
decision to refuse the plaintitif yet another road test after he repeatedl)' failed road tests. The
parties signed a joint agreement where the plaintiff agreed to take driver's training and the
defendant agreed to give the plaintiff one final road test when the plaintiff was ready. The
plaintiff failed his latest road test on Januaiy 2, 200-4.
• Kobza v. Massachusetts Maritime Academy, et al. (Suffolk Superior Court) This lawsuit
arose out of the Massachusetts Maritime Academ)s attempts to disi-ipline a senior cadet student
for his misconduct during the spring of 2003. The court issued two preliminary injunctions
preventing the Academy from disciplining the plaintiff and allowing him to graduate. Settlement
negotiations began in June 2003 but failed when the plaintiff moved to add new individual
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REGIONAL OIF- ICES CENTR.'\L MASSACHUSETTS DIVIS 1 N
defendants and civil rights claims to his complaint. Settlement negotiations resumed in October
2003, after the defendant Academy noticed the plaintiff's deposition and served other discovery
request requiring the plaintiff to support his claims. The case settled on November 19, 2003,
on ver\' fiivorable terms to the Academ}' and its officials. I'he case was dismissed with prejudice
and without costs and attorneys fees.
• Moore v. DARE, et al. (Worcester Superior Court) This negligence suit was brought by
the biological mother of a minor (a boy) again.st: (1) DARE Family Services, Inc.; (2) DSS; and
(3) the foster parent that DARE hired to care for the child. The mother contended that the
foster parent negligently cared for the child by allowing him to go "rollerblading. " Tfie child
was hit by a car while rollerblading. The case was settled by the plaintiff agreeing to receive
$20,000 from DARE, $ 1 9,000 from DSS, and $0 from the foster mother. The setdement was
approved on December 15, 2003.
• Herb Chambers v. Jennifer Davis Carey, as Director of the Office of Consumer Affairs
and Business Regulations (Appeals Court) Ihe court affirmed Worcester Superior Courts
dismissal of the plaintiff's claims that it was not properly notified ot arbitration. C'oinr adopted
the Office's argument that the lower court lacked subject matter jurisdiction because Herb
Chambers failed to exhaust its administrative remedies and failed to file a timely appeal of
OCABR's arbitration decision.
• Tahir Corp. v. State Treasurer (Worcester Superior Court) The Treasurer's motion to
dismiss this mandamus action was allowed.
• Sorin V. Registrar of Motor Vehicles and Board of Appeal (Worcester Superior Court)
Plaintiff's motion for a preliminary injunction was denied.
• Letondress v. Department of Revenue (Worcester Superior Court) Settled for $950 on the
eve of the trial.
PUBLIC PROTECTION BUREAU
In October 2003, the CMA Division hired an assistant attorney general devoted to consumer
protection matters. In Fiscal Year 2004, the assistaiu attorne\' general and civil investigator in the
division handled numerous investigations and the following highlighted cases:
• In December 2003, a lawsuit was filed against Riverside Mitsubishi and its owners and
managers, Daryl, Todd, and Brenda Rivernider, for defrauding consumers through various
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RfcGIONALOFUCLS C.LN 1 R>\L MASSACHUSEITS DIVISION
unfair and deceptive trade practices in connection with their sale of used and new motor vehicles.
Defendants' unlawful acts and practices included: fiiiling to pay off loans on traded-in vehicles;
failing to provide consumers with lilies to piuchaseil vehicles; failing lo provide promised "cash
back" or refuiancing; tailing to provide advertised incentives; failing to pay off original car loans
after refinancing; and failing to purchase extended warranties paid for by consumers. In
December 2004, the Worcester Superior Court issued preliminary injunctions against Todd
Rivernider and the two corporate defendants prohibiting them from transferring assets and
ordering disclosure of assets. In February 2004, Worcester Superior Court Lssued an order
denying Brenda Rivernider's motion to dismiss and granting the Office's tnotion for preliminary
injunction prohibiting Daryl and Brenda Rivernider from transferring assets and ordering
disclosure of assets. In February 2004, the Office filed a complaint for contempt against Daryl
Rivernider and Riverside Mitsubishi for allegedly selling a vehicle in Florida on behalf of Riverside
Mitsubishi in violation of one of the preliminai)' injunctions. In March, a second complaint
for contempt was filed in this case. Ihe complaint alleges Dar\'l and Brenda Rivernider refinanced
and obtained a home equity line of credit on their property in Florida and failed to disclose
their assets, in violation of a stipulation in lieu of preliminary injunction and an injunction
issued by the court. In May 2004, after a trial on the two complaints, the court found both
Dar}'l and Brenda Rivernider in contempt. Litigation continued into the next fiscal year.
• Adventure World RV Investigated and filed complaint in May 2004 against three related
corporate entities and their owners and managers, David, Catherine, and Robert Hirsch, for
unfair and deceptive practices in connection with their sale of recreational vehicles. Defendants'
unlawful acts and practices included: failing to pa\' off loans on traded-in recreational vehicles;
failing to provide consumers with titles to purchased recreational vehicles; failing to pay off
original loans after refinancing: and failing to purchase extended warranties paid for by consumers.
In |une 2004, the court issued a preliminar)' injunction against the corporate defendants and
David Hirsch. A stipulation in lieu of preliminary injunction was entered into with Catherine
Flirsch. The three corporate defendants and David Hirsch previousl)' had filed for bankruptcy.
The preliminar)' injunction was later amended to exempt the bankmptcy trustees of the corporate
defendants and David Hirsch. Proofs of claim were filed with the Bankruptcy Court in the
corporate and David Hirsch bankruptcies. Defendant Robert Hirsch filed and the court denied
a motion to dismiss the Superior Court suit. Litigation continued into the next fiscal year.
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REGIONAL Of-PICES CENTRAL MASSACHUSETTS DIVISION
BUSINESS AND LABOR PROTECTION BUREAU
During Fiscal Year 2004, the Central Massachusetts Division received 2,933 telephone inquiries
and 252 walk-in visitors seeking assistance. For Fiscal Year 2004 Fair Labor cases and statistics, please
refer to the Fiscal Year 2004 Report of the Business and Labor Protection Bureau.
OUTREACH, EDUCATION, AND TRAINING
CMA Division staff participated in numerous outreach, education, and training opportimities in
Worcester County communities including:
• Presentations on Internet Safety at the Worcester Public Library, Auburn Middle School,
Mass. General Hospital's Crime Prevention and Safet)' Fair, and Pathfinder Vocational High
School (Palmei).
• Presentation on Bullying and Harassment at Venerini Acatdemy in Worcester.
• Presentations and trainings on Shaken Baby Syndrome tor Shaken Baby Syndrome
Prevention Campaign in Central Mass., the LIMass Early Intervention Program, and LIMass
Memorial Board ot Trustees at Children's Medical Center and Housing Court Officials, Child
Welfare Cases and Practices (Boston College Law School).
• Presentations on consumer and elder issues on WTAG s Sunday morning consumer show
Legal Express (Worcester) and at the Elder Abuse Conference (Sturbridge), and training for the
Massachusetts Motorq'cle Association's Annu.il Meeting (Auburn), the Auburn Senior Center;
the Brimheld Senior Center; the lownsend Senior Center, and the Cooperative Bank (Gardner).
• Presentations on identir)' theft for the Greater Gardner Chamber of Commerce, the Working
Women Committee in Gardner, the Worcester Club, and the \X1SE Program (Worcester Institute
Senior Education GWX'BA).
• Presentation on car buving at the Worcester Public Librarv.
• Chief jacobson also served on the statewide Children's lustices Act Task Force, as C'hair of
the Advisory Council to UMass Memorial's ("hildren's Medical Outer, and as an adjunct
professor at Mount Wichusett Commimitv College.
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RtCIONAL Oy-l-ICtS CENTRAL MASSACHUSET IS DIVISION
• Assistant Attorney Cicncral Cioilandino served as a teaching fellow and lectiuet at Brandeis
University and co-chair of the Trial Divisions Hmploynient/C^ivil Rigiits Practice Cuoup.
• Staff also participated in office-wide Diversity (Ajiiimittee; attended Attorney General
trainings on eider care, bankriiptcv law, trial advocac)', civil rights law, court filing systems,
public records, time managemeiu, and etfeciive comnumication; and attended the AFL-CIO
Labor Da\- Breaktast.
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REGIONAL OFFICES
218
Kl (,li )\,\l L)[ I l( bs SOUTHEASTERN MASSACHUSETTS DIVISION
SOUTHEASTERN MASSACHUSETTS DIVISION
riic Southeastern Massachusetts Division (SF.MA Division), located at lOS William Street, New
Bedford, one of Attorney General lom Reiliy's three regional offices, is committed to promoting the
Offices initiatives in the southeastern Massachusetts region. The SEMA Division consists of lawyers,
inspectors, mediators, and administrative staff who work through the Business and Labor Protection
Bureau's Fair Labor and Business Practices Division; Public Protection Bureau's Civil Rights and Civil
Liberties Division and Consumer Protection and Antitrust Division; Government Bureau's
Administrative Law Division, and the Trial Division.
During Fiscal Year 2004, SEMA staff included Mary O'Neil, Chief (7/ 1 /03 - 3/8/04); Jim Sweeney,
Chief (3/8/04 - 6/30/04); Cecile Byrne; Todd Davis; Diane Lopes Flahert}'; Paul Gordon; Anita Maietta;
Stephen Marshalek; Timothy McGuire; Patricia Medeiros; Mario Paiva; and Patricia Tapper.
SIGNIFICANT CASE SUMMARIES
I he following provides an overview of cases undertaken b\' SEMA staff during Fiscal Year 2004.
BUSINESS AND I^ABOR IM-IOTECTION BUREAU
• Universal Security Alarms, an Ocean Bluff security company, was ordered to pay restitution
of $6, 1 54 and a penalty of $ 1 ,260 for failure to pay wages to six employees when the compan)-
closed.
• Best of Care, a Raynham home health care agency, was ordered to pa)' restitution of
approximately $23,000 to 39 emplo\'ees for failure to pay overtime to emplo_\'ees.
• C &: O Enterprises/George Clements (a/k/a North American E^nvirorunental), a Weymouth
asbestos removal company, was ordered to pay S38,862 in restitution and a S3, 590 penalty for
failure to pay overtime to employees.
• Continental Contracting, a Canton company, was ordered to pay $76,063 in restitution
and a $5,000 penaln,' for failing to pay 4 1 employees two weeks' pay for work on the Groron-
Dunstable High School.
• Manuel Pacheco/Mello, Inc., an Acushnet contractor, was cited with a penalty of $500 for
failure to maintain payroll records in accordance with the G.L. c. 151 while working on the
New Bedford High School construction project.
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REGIONAL Ol-FICES SOUTHEASTERN MASSACHUSETTS DIVISION
• CA Construction Drywall Finishers, Inc., a construction company, was cited and fined
$200 for failure to maintain proper payroll records while working on a Bellingham school
construction project.
• FF Painting Co^, a Watertown company, was ordered to pay $2,538.75 in restitution and a
$200 penalt\' for failure to pay overtime.
• Funway USA was ordered to pay $5,855.29 in restitution and a $200 penalty for failure to
pay overtime 14 employees.
• Emeralds Excavating/Ingeborg Kelleher was cited for $660 in restitution and a $250 penalt)'
for failure to pay prevailing wages to 10 laborers and operators on a Middleboro Fire Station
construction project.
GOVERNMENT BITRFAU
ADMINISTR^^TIVE LAW DIVISION
Defensive Litigation
• Larry F. Wheatley v. William F. Galvin. as he is Secretary of the Commonwealth ot MA
and Matthew C. Patrick In a case arising out of the contested election for a seat in the House
of Representatives, the Supreme Judicial Court upheld the position of the Secretary of State
that the state constitution makes the House of Representatives the exclusive and final judge of
the elections of its members. The incumbent had won the election by 17 votes. The Barnstable
Superior Court had ordered a new election after finding irregularities in the election. The
House of Representatives, after holding a hearing and considering the evidence before the
Superior Court, voted to seat the incumbent as the duly elected representative. The Supreme
Judicial Court upheld the Houses decision.
• In re: Cohen/Doria/Jordan The Appeals Court affirmed a Department of Social Services
decision to terminate a father and mothers parental rights after severe and repeated incidents of
domestic violence between the parents. (Medeiros)
• In re: Pus (Adoption of Vera) The Appeals Court upheld a Departmeru of Social Services
decision to terminate a mother's parental rights based on a history of abusive domestic violence.
• In re: Strohl The Appeals Court upheld a Department of Social Services finding terminating
parental rights based upon findings of significant neglect of the child b\' the parents.
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KLCIONAL OlMCES SOUTHhAS TERN MASSACHUStTTS DIVISION
• Rose Anne Barbar Neves v. DSS - The Supciioi (]()urt uplicld a IXparrmciU oi Social
Services finding ot abuse and neglcLi.
• K & R Auto Salvage, Inc. v. RMV The division successfully resolved a challenge to the
Registr\' of Motor \ chicles regulations concerning auto salvage operations.
• Fisher v. Alcoholic Beverages Control Commission The division successfull)' defended an
administrative decision to revoke a liquor license.
• Nimrah Corporation, d/b/a Brewster Farms Market v. Roy E. Jones, III, Brewster Fire
Chief (Barnstable Superior Court) The parties were able to successfully resolve a di.spute
concerning the permit for the undergroiuid storage of gasoline.
The division also successfully handled a niunber of othei' cases arising out of a range of administrative
agency decisions. Those cases included appeals from Registry of Motor Vehicles license suspension and
revocation decisions, appeals from the Department of Sociiil Services decisions involving findings of
abuse or neglect and termination of parental rights, appeals from Retirement Board and Civil Service
Commission decisions, appeals from decisions of the Housing Appeals Committee, appeals from
decisions of the Department of Employment and Training on entitlement to unemployment benefits,
appeals from Board of Registration in Medicine decisions, and challenges to agency regulations.
TRIAL DIVISION
• lames E. Parker v. City of Attleboro, et al. (Bristol Superior Court) The Court dismissed a
civil rights and negligence case brought b\' an individual v^'ho was mistakenly arrested on a
default warrant that was issued against an individual with a similar name.
The SEMA Division also handled a number of additional Trial Division cases involving personal
injuries on state propert)' or as a result of motor vehicle accidents with state vehicles.
PUBLIC PROTECTION BUREAU
Consumer Mediation
• Capitol Management Services (Debt collection - Value $3,605.97) the company w;is
pursuing the wrong person to collect a debt and the consumer could not convince them of this
fact. The division provided the company with information that proved the consumer was not
the person responsible for this debt.
• United of Omaha Life Insurance Company (Insurance - Value $72,268.32) An elderly
couple from New Bedford had been talkeil into purchasing a 20-year annuit)' package that was
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REGIONAL Of-FICES SOUTHEASTERN MASSACHUSETTS DIVISION
unsuitable for their needs. The compan}- agreed to allow the couple to surrender their policT
without any penalties.
• Cedar Knoll Cemetery (Service -Value $1,500) A consumer had paid in full to have her
recently deceased mothers memorial stone installed and became frustrated by the private
cemetery's numerous delays. This consumer w;is assisted with getting the cemetery to immediately
install the memorial, greatly easing the consumer's peace of mind.
• Rajashekar Maragoud/Ranjan Sitaula (Auto Sales by Private Party - Value $1,000.00) A
consumer purchased a vehicle that did not pass MA Inspection through a private-party s;ile.
The seller was unaware of his obligation under the MA Lemon Aid Law to refund the money.
Lhe seller refunded the consumer.
• Sullivan Auction ofWestport (Retail Sales - Value $2,800.00) Two consumers had purchased
bedroom furniture and a mattress that were infested with bedbugs. The pests severely infested
their homes requiring extermination. Familv members were medicillv treated for bites. In
addition to refunds on their purchases, both consumers were requesting for reimbursement of
their out-of-pocket expenses. The company refunded the consumer the cost of the mattress
and reimbursement for expenses.
STATISTICAJ. SUMMARY
BUSINESS AND LABOR PROTECTION BUREAU
FAIR LABOR AND BUSINESS PRACTICES DIVISION
Lhe following statistics represent complaints received in violation of M.C.L. c. 149A arising in the
70 cities and towns located in Bristol, Plymouth, Barnstable, and Dukes Counties for non-payment of
wages and failure to pay prevailing wages.
Calls 5,380
Non-payment & Prevailing Wage complaints - Opened 527
Non-payment & Prevailing Wage complaints - Closed 469
Total Restitution and Penalties/Fines $239,344.86
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RE^GIONAL OM-ICES SOUTHEASTERN MASSACHUSETTS DIVISION
PUBLIC PROTECTION BUREAU
CONSUMER PRCrrECTlON
Coniplaiius in tlic areas of automobile sales, home improvement, and retail sales were the most
[Mcvaleiit in Southeastern Massachusetts. The goal to provide voiuntan,' telephone mediation and
inlormation to empower consumers with iiilormation continued to be the most efFective method to
provide assistance to the public we service.
CONSUMER MEDIATION
Calls 1,693
Consumer Complaints Resolved/Mediated 244
Total Saved SEMA Consumers $ 103,499.86
SIGNIFICANT INITIATIVES. EFFORTS. AND ACTIVITIES
The SEMA Consumer Team met monthly to review trends in complaints and potential affirmative
cases and discuss appropriate community outreach efforts. The team also worked on coordinating and
equalizing information sharing through the E'verest system with CClS, the local consumer protection
agencies, and the region.il offices submitted a regular consumer column to a local newsletter and developed
a regional home improvement contractor's proposal.
Assistant Attorney General Steve Marshalek sat as a hearings officer with Registr\' of Motor Vehicle's
Board of Appeal on a regular basis, several times each month. The SEMA Division had two interns
during Fiscal Year 2003: Viral Keshwala, a law student from Southern New E^ngland Law School and
Kristine Massoud, a student at New Bedford High School.
SEMA staff served on several of the Offices committees. Patricia Medeiros served on the Diversity
Committee and the AGO Web site Committee. L^iane Lopes Flaherty served on the AGO Elder
Steering Committee/AGO Elder Strike Force.
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REGIONAL OFFICES SOUTHEASTERN MASSACHUSETTS DIVISION
OUTREACH, EDUCATION. AND TRAINING
Protecting children is an ongoing priority of Attorney General Reilly and the SENIA Division, in
Fiscal Year 2004, SEMA staff worked with the New Bedford Public Schools to make possible the Youth
Onirt and Youth Summit, Empowering Youth Pr<:grams, funded by the schools' Safe Harbors Grant
Program.
SEMA staff participated extensively in New Bedford's Youth Court program. Youth Court is a
juvenile diversion program that hears cases involving middle school and high school students referred
by the schools or the courts. High school students participate as prosecutors, defense counsel, and
jurors. SEMA staff trained the students to act as prosecutors and defense counsel. SEMA staff also
participated regularly as the judge for Youth Court.
SEMA staff helped to plan and participated in New Bedfotd's Second AnniuiJ Youth Summit. 7 he
one day event included a series of speakers, presentations, and workshops for over 300 teens on topics
of interest to youth, such as conflict resolution and the dangers of alcohol and drug use.
SEMA staff assisted 16 students in their Summer of Work and Learning Project with the production
of a television segment to be aired on local cable EV, filmed at the SEMA Regional Office, on topics
relating to young workers, young consumers, and the function of the regional Office of the Attorney
Gener;i]. The students developed public service announcements and interviewed SEMA staff as the}'
learned to compile and edit the television segment. The Project's goal was to combine the benefits of
classroom learning with on-the-job experience to assist high school seniors in passing the MCAS.
SEMA staff held Internet Safety presentations at two local schools. The presentations reached
more than 100 children and parents. Staff participated in the New Bedford Prevention Partnerships'
SMILES Breakfast (Jlub Mentoring program, S\'lvan Learning Centers' We Care About Kids Da\', and
Carney Academy s Safety Day.
SEMA staff empowered numerous seniors on consumer rights, scams, domestic violence, and
financial exploitation. Outreach presentations were held at the Niagra-Maplewood Senior Center and
Olynipia Towers in Fall River. Presentations included an Elder Financial Exploitation Conference and
Bank Reporting Project I raining Session held at the Cape Cod Co-Operative Bank and sponsored b}-
the Office of the Atiorne)' ( ieneral and the Massachusetts Bankers Association. Regional staff provided
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RLGIONALOIUCES SOLiTHEAS'l'tRN MASSAC HL'SflTS DIVISION
welcoming remarks at an Attorney General's workshop on Elder Hinancial Hxploitation in Hyannis;
participated as moderator at a Portuguese "Know Your Rights ' Omterence for elderly at Mount (-armcl
C'hurcli ill New Bedford; and participated as moderator at an elder workshop. Safeguarding Our Seniors,
at Fairhaveii Council on Aging.
A number ot building inspectors in southeastern Massachusetts attended a roundtable discussion at
the SEMA Regioiuil Office regarding issues surrounding home improvement contracts. Staff was then
invited to the Southeastern MA Building OfficiaJs Association Monthly Meeting to provide a "Do's &:
Don'ts" presentation. Staff also met with area building inspectors about the lA'pes of home improvement
contractor complaints and discussed strategies to educate homeowners. Diane Lopes Flaherty presented
the program "The Do's & Don'ts of Hiring a Home Improvement Contractor" at the New Bedford
Chamber of Commerce's Home Show and at the Plumb Librarj' in Rochester.
SEMA staflt also attended the regular meetings of the Local Consumer Program and Consumer
Coalition meetings. I'he division also represented the Office at the Freetown Lions Club (identit)'
theft), the New Bedford C'rime Summit, and the Acushner Council on Aging, the New Bedford
I'levention Partneiship Neighborhood, and participated in United Way Review Board meetings.
The division participated in the application process for New Bedfords Weed & Seed Grant and
continued its attempt to identif)' and locate propert}' in the Weed & Seed neighborhood appropriate
for an abandoned housing project.
Professional development is offered to both legal and non-legal staff in the Office of the Attorney
General. Members of the SEMA Division attended Attorney General Institute trainings such as the
Office's Anti-Discrimination Training; ACT Management Training; AGI Elder Advocate Training; AGI
Ergonomics Training; AG I Handling Phone C.ills from the Public; and AGI Notary Training.
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