Number 6 September 10, 1980

Number 6 September 10, 1980 Honorable Michael Joseph Connolly Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Connolly: By letter dated August 8, 1980, you have asked me whether certain questions are ones of public policy in accordance with G.L. c. 53, §19. It is my opinion that the questions concern important public matters in which every citizen of the Commonwealth would have an interest, are fit subjects for lawmaking, and, therefore, are questions of "public policy" which may be submitted to the voters, provided, however, that you determine that all other requirements of law are met.^ My opinion that all of the questions are appropriate public policy questions is based upon the well-settled principle that the term "public policy" as used in G.L. c. 53, §19, should not be given a restrictive meaning. 1978/79 Op. Atty. Gen. Nos. 8 and 17, Rep. A.G., Pub. Doc. No. 12 at (1978). Each question must constitute an "important public question" in which "ever> 2 Furthermore, this distinction between paragraphs two and three of G.L. c. 7. <!.1B. can be said lo be a rcasonahlc ono simc the cost determinations to be made pursuant lo paragraph two need only be made from lime lo lime, while mmiol ihc Ices and charges covered by paragraph three must be made annually. The legislature may ihcrcforc have considered public hcanng» to be overly burdensome with respect to the hundreds of fees and charges covered by Chapter 572. 'The requirements to which I make reference are contained in G.L. c. 53. §§19. 20 and 21 and involve a niimher of ^iMulocy prohibitions specifically set out in those sections which involve questions of fact. For example, a question •> n.Jiiy accurate and presents an important public issue may not appear on the ballot if the question is substani. »nc which has been submitted to the voters within less than three years. G.L. c. 5i. §21 As Sccrctiiry ol ilu i »>u have in your possession past election ballots from each of the relevant districts and arc therefore in a better p..-.i...n man l lo make the factual determination required bv the statute. .. i i <„, . r™,.. _..,« Consequently, I have made no independent inquiry lo determine whether these questions are *la>i"only «fcf«''vc for any r««o other than a failure to qualify as a public policy quesUon in proper lomi for presentation on the ballot Srf 1958 Op AUy. Gen., Rep. AG. Pub. Doc. No. 12 at 44 (1958). 110 P.D. 12 citizen in the Commonwealth has an interest." 1976/77 Op. Atty. Gen. No. 7, Rep. A.G., Pub. Doc. No. 12 at 89 (1976); 1978/79 Op. Atty. Gen. Nos. 6,9-11, 13-17, Rep. A.G.,Pub. Doc. No. 12 at (1978). Even when questions concern a small geographic area, if the problem is one of concern to the Commonwealth in general, then the question may be considered one of public policy. 1974/75 Op. Atty. Gen. No. 11, Rep. A.G., Pub. Doc. No. 12 at 54 (1974); 1978/79 Op. Atty. Gen. Nos. 16, 17, 18, Rep. A.G., Pub. Doc. No. 12 at (1978). Accordingly it is my opinion that the questions you submitted are all matters of public policy and should be printed on the ballot in the following form: Senatorial District: Franklin and Hampshire "Shall the Senator from this district be instructed to vote in favor of legislation requiring a moratorium on the construction and licensing of new nuclear power plants and requiring the phased replacement of existing nuclear power plants with conservation, energy efficiency measures, short-term use of coal, co-generation, and renewable energy sources such as hydro-electricity, wind and solar?" Senatorial District: 2nd Essex "Shall the Senator from this district be instructed to vote in favor of legislation requiring a moratorium on the construction and licensing of new nuclear power plants, and mandating instead that the state promote energy conservation and renewable energy sources such as hydro-electric, wind and solar power?" Senatorial District: 1st Suffolk andfive other Senatorial Districts'^ Representative District: 9th Bristol and nineteen other Representative Districts^ "Shall the Senator (or Representative ) from this district be instructed to vote in favor of legislation requiring a moratorium on the construction and licensing of new nuclear power plants, and mandating instead that the state promote energy conservation and renewable energy sources such as hydro-electric and solar power?" Senatorial District: Berkshire Franklin and Hampshire Hampden "Shall the Senator from this district be instructed to vote in favor of a resolution requesting the President of the United States to propose to the Soviet Union a mutual nuclear weapons moratorium immediatly halting the testing, production, and deployment of all nuclear warheads, missiles, and delivery systems, and requesting Congress to transfer the funds that would have been used for those purposes to civilian use?" ^2nd Middlesex and Norfolk; Bristol and Plymouth; Suffolk and Middlesex; 4lh Middlesex; 3rd Essex. ^4th Essex; 5th Essex; 6th Essex; 2nd Hampden; 4th Middlesex; 20th Middlesex; 26th Middlesex; 32nd Middlesex 3rd Plymouth; 1 2th Suffolk; 13th Suffolk; 17th Suffolk; 18th Suffolk; 19th Suffolk; 17th Worcester; 14th Norfolk; 6th Middlesex; 7th Middlesex. P.D.12 ,,, Representative District: 9th Middlesex "Shall the Representative from this district be instructed to vote in favor of legislation prohibiting the storage and transportation of nuclear waste within this distnct and to vote in favor of legislation providing for the development of alternatives to nuclear energy such as conservation and renewable energy sources?" Representative District : 1st Essex "Shall the Representative from this district be instructed to vote in favor of a resolution recommending to the Nuclear Regulatory Commission that no operating licenses for nuclear power plants be granted unless all state and federal guidelines for evacuation are met and also to vote against any expenditure of public funds for the purpose of developing such evacuation plans?" Representative District: 18th Suffolk 19th Suffolk "Shall the Representative from this district be instructed to vote in favor of legislation providing for a City Council in the City of Boston composed of nine members to be elected from equally populous districts and four members to be elected at large?" Representative District: 1st Plymouth "Shall the Representative from this district be instructed to vote in support of the construction and operation of a second nuclear power plant at Pilgrim Station, if all safety and other regulatory requirements are satisfied?" Representative District: 1st Plymouth "Shall the Representative from this district be instructed to vote in favor of legislation prohibiting the construction of a second nuclear power plant in the Town of Plymouth?" Representative District: 31st Middlesex "Shall the Representative from this district be instructed to vote in favor of legislation prohibiting the construction or licensing of any new nuclear power plants and providing state programs to encourage building insulation, energy conservation, solar and hydro-electric power and other renewable energy sources?" Representative District: 12th Suffolk "Shall the Representative from this district be instructed to vote in favor of legislation providing that abortions are to be paid for by the Commonwealth?' ' Senatorial District: 3rd Essex "Shall the Senator from this district be instructed to vote in favor of legislation prohibiting the construction of overhead high voltage power lines in excess of 69,000 volts, and to vote in favor of legislation mandating that such lines be buried underground?" 112 P.D. 12 Representative District: 6th Norfolk 7th Norfolk 8th Norfolk "Shall the Representative from this district be instructed to vote in favor of legislation preserving in its entirety the Prowse Farm at the gateway of the Blue Hills Reservation?" Representative District: 2nd Essex 3rd Essex "Shall the Representative from this district be instructed to vote in favor of legislation ordering the demolition of the Haverhill Parking Garage?" Senatorial District: Suffolk and Middlesex 2nd Middlesex 2nd Middlesex and Norfolk 5th Middlesex "Shall the Senator from this district be instructed to vote in favor of a resolution calling on the federal government to cease spending on military programs and, instead, to spend the funds for civilian needs such as construction of energy-efficient housing, mass transit, public education and health care?" Representative District: 3rd Hampden "Shall the Representative from this district be instructed to vote in favor of legislation providing for the use of a refundable deposit on soft drink and beer containers?" Representative District: 38th Middlesex "Shall the Representative from this district be instructed to vote in favor of legislation prohibiting the licensing of nuclear power plants until an independent public agency verifies that all safety and waste disposal problems are solved, implementing programs for conservation, and promoting the development of cost-efficient, renewable energy resources?" Very truly yours, FRANCIS X. BELLOTTI Attorney General Number 6 - Addendum 1. September 12, 1980 Honorable Michael Joseph Connolly Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Connolly: I have received and considered your suggested wording for the Public Policy Question to be submitted to the voters in the Suffolk and Middlesex, 2nd Middlesex, 2nd Middlesex and Norfolk and 5th Middlesex Senatorial Districts. P.D. 12 ,,3 You have suggested the following wording: "Shall the Senator from this district be instructed to vote in favor of a resolution calling on the federal government to cease unnec- essary spendmg on new military programs and, instead, to spend the funds for civilian needs such as construction of energy-efficient housing, mass transit, public education and health care?" I concur with your suggestion and believe that the wording you proposed would be appropriate for inclusion on the ballot. Very truly yours, FRANCIS X. BELLOTTI Attorney General Number 7 September 25 . 1 980 Daniel J. Kelly, Executive Secretary Teachers' Retirement Board One Ashburton Place Boston, MA 02108 Dear Mr. Kelly: You have requested my opinion whether St. 1980, c. 429, requires retirement boards to pay an allowance for the benefit of students who have reached age 21 but have not yet turned 22. The question arises because St. 1980, c. 429 amends G.L. c. 32, §12B to provide for such payment until the student reaches 22, rather than 21 as under the prior law. The amendment was approved July 9, 1980, without an emergency preamble, and thus becomes effective on October 7, 1980. Since benefits have been discontinued for students who turned 21 prior to that date, your question is whether benefits must be resumed for such students who are not yet 22. In construing St. 1980, c. 429, I must be guided by the plain meaning of the statute. Burke v. Chief of Police of Newton, Mass. Adv. Sh. (1978) 425. 427; Boston v. Massachusetts Port Authority, 364 Mass. 639, 657 (1974). On its face, the amendment clearly provides for payment on behalf of students under age 22.^ There is no distinction made for students who. though still under 22, had turned 21 while the prior law was in effect. A construction which imposed such a distinction would conflict with the apparent statutory intent and should therefore be avoided, in construing the statute, I must look to the language used, the evil to be remedied, and the objective to be accomplished by the enactment. Hayon v. Coca Cola Bottling Co., Mass. Adv. Sh. (1978) 1888, 1893. Moreover, my interpretation must be "in accordance with sound judgment and common sense." Sun Oil Co. v. Director of the Division on the Necessaries of Life, 340 Mass. 235, 238 (1960). *In relevant part, St. 1980, c. 429 provides: •If a member in service . . . dies and leaves a spouse ... and if there arc any sunivm^ member who are under age eighteen ... or under age twenty two; if a full-time student, i/u spouse for the benefit of all such children an additional allowance of eighty dollar, a monil allowance of sixty dollars a month for each additional child ..." 114 P.D. 12 The obvious purpose of St. 1980, c. 429 is to continue support of college students who typically turn 21 prior to graduation. It would be inconsistent with this purpose to refuse payments on behalf of those under 22 who have already turned 21 , but have not yet graduated. This analysis is consistent with the general rule that remedial statutes are commonly treated as applying to pending matters. Hein-Werner Corp. v. Jackson Industries, Inc., 364 Mass. 523, 525 (1974). St. 1980, c. 429, "being in the main remedial" by merely extending a substantive benefit already provided, is to be "liberally interpreted in order to effectuate [its] purposes." Wynn v. Board ofAssessors, 281 Mass. 245, 249 (1932). For these reasons, I conclude that St. 1980, c. 429 requires the payment of benefits on behalf of students under age 22 regardless of whether such benefits had previously been terminated because the students had turned 21. I note that my conclusion is consistent with that of the Director of Retirement Systems within the Division of Insurance.^ Very truly yours, FRANCIS X. BELLOTTI Attorney General Number 8 October 23 , 1 980 George A. Luciano, Secretary Executive Office of Public Safety One Ashburton Place Boston, MA 02108 Dear Secretary Luciano: You have asked my opinion whether the provision in G.L. c. 32, §7(1), which prohibits retirement for certain state police officers "within any period of two years prior to attaining the maximum age," precludes an individual who falls within that period from being retired pursuant to the physical or mental incapacity provisions of G.L. c. 32, §26(2).^ For the reasons set forth below, I conclude that a state police officer who is two or fewer years removed from the mandatory retirement age is not prohibited by statute from receiving a disability retirement pursuant to G.L. c. 32, §26 (2). The facts as you have provided them to me are brief. A state police officer has submitted a request for retirement based upon a disability caused by duties performed during his employment. The officer is within two years of reaching ^G.L. c. 32, §21(1) (a) directs the Commissioner of Insurance "to inspect and examine the affairs of each [retirement board] to ascertain . . . whether all parties in interest have complied with the laws applicable thereto, and whether the transactions of the board have been in accordance with the rights and equities of those in interest." 'G.L c. 32, §26 (2) (a) provides in relevant part that: (a) Any member in service classified in Group 3 who is an officer of the division of state police in the department of public safety shall be retired by the state board of retirement in case the rating board, after an examination of such officer by a registered physician appointed by it, shall report in writing to the state board of retirement that such officer is physically or mentally incapacitated for the performance of duty by reason of (i), illness incurred through no fault of his own in the actual performance of duty, or (ii), an injury resulting from an accident occurring during the performance and within the scope of his duty and without contributory negligence on his part, and that such incapacity is likely to be permanent. State police officers are classified for purposes of retirement as "Group 3" employees. See G.L. c. 32, §3 (g). P.D.12 ,,5 age fifty, the mandatory retirement age for state police. ^ According to the required statutory procedures, the officer has submitted his retirement request to the Ratmg Board, ^ which, if satisfied of the genuineness of the disabihty IS required to report in writing to the state board of retirement that the officer meets the statutory prerequisites for disabihty retirement. G.L. c. 32. §26 (2) (a). It is my understanding that the Rating Board has failed to act in this case because of what it considers to be ambiguity in the law. In particular, the Rating Board finds the following passage from G.L. c. 32, §7(1) troublesome: Any member ... in service classified in Group 3 . . . shall be retired for accidental disability .... No such retirement shall be allowed within any period of two years prior to attaining the maxium age on account of any accident or hazard . . . undergone within three years of attaining such maximum age. On its face, this language would appear to prohibit the disability retirement of a state police officer who is two or fewer years away from the mandatory retirement age. This passage, however, cannot be considered in isolation. It is an essential element of statutory construction that full force and effect must be awarded to all the words used by the legislature. See, e.g., Hartley v. Eastern Steamship Corp., 221 Mass. 125, 131 (1915). It therefore cannot be ignored that G.L. c. 32, §7 (1), expressly exempts from its provisions those state police officers who seek disability retirement pursuant to G.L. c. 32. §26 (2). The opening proviso of section seven provides that it applies only to members: in service classified in Group 3 to whom the provisions of subdivision (2) of section twenty-six are not applicable . . . (Emphasis added). This particular exemption is repeated in section twenty-six, subdivision 4, of the chapter: Section seven [of chapter 32] shall not apply to any member . . . to whom the provisions of subdivision (2) of this section are applicable. There can be no doubt from the plain meaning of these statutes, see. e.g.. Rosenbloom v. Kokofsky, 373 Mass. 778, 781 (1977). that the state police officer in question here, because he is eligible for disability retirement under section twenty-six (2), is not subject to the particular prohibition of section seven. See 1957 Op. Atty. Gen., Rep. A.G., Pub. Doc. No 12 at 21. 22 (1956) (the provisions of G.L. c. 32, §7, do not impact upon a question of retirement pursuant to G.L. c. 32, §26 (2), since section seven "is not applicable" to retirements under that letter section). I conclude, therefore, that the olticer's 2G.L. c. 32, §26 (3) requires s.ate police officers to retire upon reaching age 50. See Massachusens Beard of Renremen, v Murgia. 427 U.S. 307.309(1976). 3Tlie Rating Board is established by statute to process disability retiremem requests made by slate police ofr.cen. G L. c. 32. §26 (1). See 1957 Op. Atty. Gen., Rep. AG., Pub. Doc. No. 12 at 71 (1957). 116 P.D. 12 age in this case is immaterial to the ultimate decision whether he may be retired pursuant to G.L. c. 36, §26 (2), and the Rating Board is not estopped from taking appropriate action on the officer's retirement request. Very truly yours, FRANCIS X. BELLOTTI Attorney General