Volume 1975
Article 14
1-1-1975
Chapter 10: State and Local Government
Herbert P. Gleason
Michael J. Betcher
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CHAPTER 10
State and Local Government
HERBERT P. GLEASON* AND MICHAEL J. BETCHER**
A. DISTRIBUTION oF PowERS
§10.1. Powers of the Attorney General. In Secretary of Administra-tion and Finance v. Attorney General, 1 the Supreme Judicial Court
de-cided that the Attorney General has virtually absolute control of the conduct of litigation and that his decision not to appeal a case is final, notwithstanding the wishes of the head of an executive department.
The dispute arose when the Secretary of Administration and Fi-nance refused to complete the purchase of a piece of property in Dedham by the Trustees of State Colleges from the Stigmatine
Fathers.2 The Stigmatines obtained a declaration in the superior court
that the purchase and sale agreement was valid and binding. 3 The
Secretary requested that the Attorney General either appeal the deci-sion himself or appoint a special assistant attorney general paid by the
Secretary to do so.4 The Attorney General refused, and the Secretary,
represented by the Governor's legal counsel, brought an action for a declaration that the Attorney General had a duty to honor the Secretary's request. 5
The Secretary argued that there existed an attorney-client relation-ship between him and the Attorney General and that, he, as the
client, should decide if an appeal should be taken.6 The Court held
that, although the code of ethics 7 permits the client to make such
de-cisions when the usual attorney-client relationship exists, the statute
*HERBERT P. GLEASON is Corporation Counsel for the City of Boston.
**MICHAEL]. BETCHER is Assistant Corporation Counsel for the City of Boston.
§ 10.1. 1!975 Mass. Adv. Sh. 665, 326 N.E.2d 334.
2 !d. at 666, 326 N.E.2d at 335. 3 /d. at 667-68, 326 N.E.2d at 335.
4 /d. at 669, 326 N.E.2d at 336.
5 /d.
6 !d. at 670-71, 326 N .E.2d at 336.
7 Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, DR
188 197 5 ANNUAL SURVEY OF MASSACHUSETIS LAW §10.1
creating the office of the Attorney General8 gives him complete
con-trol over the conduct of litigation involving the Commonwealth, so long as he does not act "arbitrarily and capriciously or scandalously."9
The Court traced the history of the office of the Attorney General and concluded that the Legislature had empowered him "to set a
uni-fied and consistent legal policy for the Commonwealth,"10 that that
legislative goal would be defeated if a single agency head could dictate
a contrary course of conduct. 11 '
Justice Kaplan dissented, finding nothing in the statute or in the
Court's historical account completely dispositive of th~ issue.12
Focus-ing on "the sense and fitness of thFocus-ings in the organization of government"13 instead of the historical or statutory role of the
Attor-ney General, he concluded that, on important and rare occasions, an executive official may ask the Governor to direct the Attorney Gen-eral to pursue a certain course.14 "Otherwise matters, of high
impor-tance to the State-or at least considered by the chief executive to be so-might be finally decided not by the responsible operator but by the lawyer."15 If the Attorney General found the catise truly
repug-nant, he could appoint special counsel.16
The case raises the question whether city solicitors and town counsel are endowed with similar authority. A typical city ordinance provides that the Boston corporation counsel or his assistants
shall . . . appear as counsel in all suits, actions, or prosecutions which may involve the rights or interests of the city, and defend the officers of the city in suits against them for their official ac-tions, or for the performance of their official duties, or when any estate, right, privilege, interest, ordinance, act or direction of the city is brought in question; may take such steps and incur such expenses, for the prosecution and defense of suits as he deems necessary; ... and may settle any suit against the cityY
It could be argued that, in a city or town, the governing officials can dismiss the city solicitor or town counsel if he does not do as they direct. As on the state level, however, the city solicitor or town counsel represents other elected officials such as the school committee or the
city council who, under a Plan A charter,18 are separate from the
8 G.L. c. 12, § 3.
9 1975 Mass. Adv. Sh. at 671-72, 680, 326 N.E.2d at 337, 339. 10 Id. at 677, 326 N.E.2d at 338"39.
11 /d., 326 N.E.2d at 339. 12 /d. at 682, 326 N.E.2d at 340. 13 /d.
14 Id. at 686, 326 N.E.2d at 341. 15 /d. at 684, 326 N.E.2d at 341. 16 /d.
17 CITY OF BOSTON CODE, Ordinances, Title 5, Section 450.
§10.2 STATE AND LOCAL GOVERNMENT 189
mayor. Such bodies often disagree among themselves. To say that these elected voices could be stilled whenever the city solicitor or town counsel believed that the interest of "a unified and consistent legal policy" for the municipality was at stake would be to replace govern-ment by the popular representative with governgovern-ment by the lawyer. In a time of continuous conflict between public officials, occasions in which the Court's decision will have a significant impact are not so rare as either the Court or Justice Kaplan think. Indeed, the Court recently considered a case where the Attorney General, representing the Board of Education, took the position-contrary to the Board's view-that the Legislature had the power effectively to repeal the
Ra-cial Imbalance Act.19
§10.2. Legislative Control of Agency Action. In Commissioner of
Public Health v. Bessie M. Burke Memorial Hospital, 1 the Court held that
the Legislature can amend a general law so as to overrule directly a
specific agency determination. 2 In 1971, the Legislature enacted a
statute requiring that anyone constructing or changing the use of a health care facility must first obtain a determination of need from the
Department of Public Health. 3 Having decided to undertake a
con-struction project, the Bessie M. Burke Memorial Hospital applied for a determination of need in December of 1971, but the application was
denied on April 11, 1972.4 The Hospital did not seek judicial review
of the determination but resorted to the Legislature, which passed, over the objections of the Governor and Attorney General, an
emergency law,5 directing the Commissioner of Public Health to issue
the certificate of need. 6 The Commissioner of Public Health brought
an action seeking a declaration that the emergency law was unstitutional because it violated the "separation of powers" clause con-tained in Article 30 of the Declaration of Rights of the Massachusetts Constitution, the "standing laws" provision of Article 10 of the Decla-ration of Rights of the Massachusetts Constitution, and the "equal protection" clause of the fourteenth amendment to the United States Constitution. 7
The Court quickly disposed of the Commissioner's contention that
19 School Comm. v. Board of Educ., 1974 Mass. Adv. Sh. 2031, 319 N.E.2d 427.
§ 10.2. 1 1975 Mass. Adv. Sh. 253, 323 N.E.2d 309. 2/d. at 277,323 N.E.2d at 318.
3 Acts of 1971, c. 1080, as a'TIU!nded, G.L. c. Ill, §§ 25B-G.
4 1975 Mass. Adv. Sh. at 255, 323 N.E.2d at 310.
5 Acts of 1973, c. 923. Similar preference was given by Acts of 1973, c. 1053 to the
Winchendon Hospital, which was allowed to intervene in the Burke case. 1975 Mass. Adv. Sh. at 258, 323 N.E.2d at 312.
6 1975 Mass. Adv. Sh. at 256-57, 323 N.E.2d at 311.
7 !d. at 258, 323 N.E.2d at 311. The action, brought in the county court, was reserved
190 1975 ANNUAL SURVEY OF MASSACHUSETTS LAW §10.2
Article 108 barred legislation conferring a special benefit on one or
more individuals. The Court reviewed cases where challenged legisla-tion had relieved an individual of a burden imposed on others and found that such legislation had been invalidated only where some
other individual had been injured by the legislation,9i as, for example,
where the period of limitations was enlarged so as, in effect, to renew
an administrator's personal liability, 10 or where the period during
which a particular individual might give notice againist a municipality
for negligence was enlarged.11 Although the Court observed that
ex-cessive construction or inefficient use of health care facilities might impose needless expense on the public, the Court fbund that "these results, if they should eventuate, are not the specific harms to identi-fiable persons with which art. 10 is concerned."12
The Commissioner also argued that, under the separation of pow-ers doctrine, 13 the Legislature may not direct its delegate to act in a
particular case in a different way than the generally applicable law
requires.14 To allow such a command, the Commissioner contended,
would be to permit the Legislature to commit untonstitutional
in-trusions on the executive function.15 The Court rejected the
Com-missioner's argument, applying the same "injury to :a particular indi-vidual" test that led it to the conclusion that Article 10 had not been
violated.16 ·
The Court relied on two decisions, an action involving grade
cross-ings in Northampton17 and an Opinion of the justices18 concerning a
statute that changed the apportionment of costs of a • bridge across the Connecticut River between Springfield and West Springfield. In the Springfield case, an apportionment had already be(j!n made by com-missioners appointed by the Supreme Judicial Cou'rt and had been
confirmed by the Court.19 The Court allowed the Legislature to
change that apportionment but voided a portion of • the proposed act providing that "so much of the decision of the Commissioners
ap-8 Article 10 provides in part: "Each individual of the society has a· right to be pro-tected by it in the enjoyment of his life, liberty and property, according to standing
laws. , .. " MAss. CoNST. pt. I, art. X (emp!tasis added).
9 1975 Mass. Adv. Sh. at 267, 323 N.E.2d at 315.
10 Holden v. James, II Mass. (II Tyng) 396, 404-05 (1815).
11 Paddock v. Brookline, 347 Mass. 230, 236-37, 197 N.E.2d 321, 325-26 (1964). 12 1975 Mass. Adv. Sh. at 268, 323 N.E.2d at 315.
13 Article 30 provides in part: "In the government of this commonwealth, the
legisla-tive department shall never exercise the execulegisla-tive and judicial powers or either of them
.... " MASS. CONST. pt. I, art. XXX. .
14 1975 Mass. Adv. Sh. at 269, 323 N.E.2d at 315-16. 15 I d.
16 Id. at 275, 323 N.E.2d at 318.
17 In rePetition of Mayor & Aldermen, 158 Mass. 299, 33 N.E. 568 (1893). 18 234 Mass. 612, 127 N.E. 635 (1920).
19 Mayor and Aldermen of Springfield, pet., 234 Mass. 578, 5~3, 125 N.E. 847, 848
§10.3 STATE AND LOCAL GOVERNMENT 191
pointed under said act and of the decree of the court confirming the same as are inconsistent herewith are hereby superseded," as an
at-tempt to exercise judicial powers forbidden by Article 30.20 The Court
held, however, that the Legislature may "establish a division of the burdens of taxation different from that reached by appointees of a court in the exercise of a delegated quasi judicial power. "21 Relying on
that Opinion, and on its determination that the special legislation in
Burke had not abridged any vested rights, the Court held that the
Legislature's issuance of a permit to the Burke Hospital was valid
under Article 30.22
The Burke opinion does not reach the interesting question whether
an administrative officer may deliberately place uneven burdens on different parties. Clearly, both Article 10 and the fourteenth amend-ment would bar such treatamend-ment if individual rights were adversely af-fected. Does the Court's distinction between the burdens placed on particular individuals and the imprecise but adverse effect on the pub-lic apply where, for example, an administrative officer might relieve one public employee retirement system of an accounting restriction applicable to others?
§10.3. Legislation: Meetings of Governmental Bodies. Chapter
303 of the Acts of 197 5 effected a comprehensive revision of the open meeting and public record1 law with respect to the state,2 counties,3
and municipalities.4 Chapter 303, which became effective on January
1, 1976,5 brings the public meeting requirements of state, county, and
municipal governments into conformity, although, of course, the
Legislature is exempted.6
Chapter 303 perpetuates two differences between state and local requirements for no clear reason. First, on the state level, meetings of quasi-judicial boards or commissions "held for the sole purpose of
making a decision required in an adjudicatory proceeding"7 are
ex-empt, whereas county8 or municipal9 boards performing similar
tions are not. Thus, many municipal boards with quasi-judicial func-tions, such as local licensing boards, boards of appeals, and boards of
health must keep their meetings and records open to the public. It
20 Opinion of the Justices, 234 Mass. at 621, 127 N.E. at 639. 21 !d. at 622, 127 N.E. at 639 (emphasis added).
22 1975 Mass. Adv. Sh. at 275-76, 323 N.E.2d at 318.
§ 1 0.3.1 G.L. c. 66, § 17C.
2 G.L. c. 30A, §§ 11A, B.
3 G.L. c. 34, §§ 9F, G. 4 G.L. c. 39, §§ 23A-23C. 5 Acts of 1975, c. 303, § 5. 6 !d. § 1.
192 1975 ANNUAL SURVEY OF MASSACHUSETTS LAW §10.4
seems absurd that such bodies, when deciding whether to suspend an individual's license or to grant or deny a variance shol..Ild have to act in the presence of the general public. Nor can such action be taken in
executive session and thus exempted under the new law.10 The
per-missible justifications for holding executive sessions are more narrowly defined under the new law than was the case under arty of the previ-ous statutes 11 and would not seem to allow secrecy in the handling of
such local adjudicatory functions.
The second unexplained difference between state and local re-quirements is the continuation of the provision, which formerly ap-peared in section 23B of chapter 39 of the General Laws, that the
presiding officer of a municipal board may order persons at a meeting
to be silent and remove and confine them if they persist in disruptive
behavior, 12 without the extension of such power to sta~e or county
of-ficials. Perhaps such treatment reflects a long-held view that local pub-lic gatherings do not enjoy the same serenity that prevails at higher levels of government.
The existing prohibition against executive sessions within four
hours before the meeting of a municipal body13 has be~n extended to
the county and state.14 The new statute requires that all bodies
con-vene in open session at which a majority of members must, on a re-corded roll call, vote to go into executive session after the presiding officer has stated the purpose therefor and indicated whether the
government body will reconvene after the executive session.15
The purpose of the entire statute is to ensure that the public
busi-ness will be conducted in public; the purpose is accotr~plished by
re-quiring that a meeting of a quorum of a public body at which action is
considered be open unless carefully detailed exceptions apply.16
There are similar "sunshine" statutes in many other states.1 7
B. ELECTIONS
§ 1 0.4. Campaign Financing. In the election of November, 197 4,
the voters approved certain changes to chapter 55 of the General Laws, which regulates campaign expenditures and contributions. Those changes were inconsistent in some respects with the
com-prehensive changes that the Legislature made in chapter 55 late in
10 !d. §§ 2, 3. 11 See id. §§ 1-3. 12 Id. c. 303, § 3.
13 G.L. c. 39, § 23A.
14 Acts of 1975, c. 303, §§ I, 2.
15 !d. §§ 1-3. 16 !d.
17 See, e.g., OHIO REV. CODE§ 121.22 (1975); PA. STAT. 65 §§ 251-54 (1975); WASH.
§10.5 STATE AND LOCAL GOVERNMENT 193
1973.1 Accordingly, the Legislature reenacted chapter 55 in its
en-tirety in 197 5. 2 In doing so, it adopted a limitation of fifty dollars for
cash contributions, as had been approved by the voters,3 instead of
the former one hundred dollar limit, which was imposed in 1973.4 It
also inserted a new requirement that all firms billing a candidate for advertising, public relations, printing, polling, or computer expenses
file a report with the director of campaign and political finance.5 The
1975 act also increased the penalties for violation of various provisions
of chapter 55.6 It broadened the class of candidates required by the
statute to designate a fund depository to include aspiring governor's councillors, district attorneys, clerks of court, registers of probate and
deeds, and county commissioners.7 Finally, it gave the Attorney
Gen-eral, or five or more voters, the power to petition a justice of the superior court, praying an election be declared void because of
cor-rupt practices by the successful candidate. 8
At the same time, the statute left unchanged the major elements of the 1973 statute creating the office of Director of Campaign and Polit-ical Finance, greatly elaborating the requirements for reporting con-tributions and expenditures, and limiting the amount that any indi-vidual could contribute to a candidate and any committee organized on his behalf to one thousand dollars.
§10.5. Voter Registration. In two cases arising in the city of
Worcester, the Massachusetts appellate courts disapproved restrictive
practices long followed by registrars of voters.' In Hershkoff v. Board of
Registrars of Voters2 and its companion cases, three twenty-year-old
col-lege students petitioned for review of the board's refusal to register
them to vote in Worcester.3 The petitioners stated that they regarded
Worcester as their home and had no intention of moving elsewhere.4
The Court, as had the Attorney 'General in 1972,5 inferred from the
federal constitutional amendment reducng the voting age to eighteen6
that a young voter "must have capacity to choose his domicile for
vot-§ I 0.4. 1 Acts of 1973, c. 173.
2 Acts of 1975, c. 151.
3 !d. § I, amending G.L. c. 55, § 9. 4 Acts of 1973, c. 1173, § 5.
5 Acts of 1975, c. 151, §I, amending G.L. c. 55,§ 21.
6 !d., amending G.L. c. 55, §§ I 0, II, 13, 14. 7 !d., amending G.L. c. 55, § 19.
8 !d., amending G.L. c. 55, § 33(a).
§ 10.5. 1 Hershkoff v. Board of Registrars of Voters, 1974 Mass. Adv. Sh. 2427, 321
N.E.2d 656; Coulombre v. Board of Registrars of Voters, 1975 Mass. App. Ct. Adv. Sh. 578, 326 N.E.2d 360.
2 1974 Mass. Adv. Sh. 2427, 321 N.E.2d 656.
3 !d. at 2427, 321 N.E.2d at 659.
194 197 5 ANNUAL SURVEY OF MASSACHUSETTS LAW §10.6
ing purposes, regardless of his emancipation for other purposes"7 and
thus rejected the argument that a minor must be viewed as domiciled at his parents' home. The Court held that the petitioners had estab-lished new homes in their college dormitories and that, because of the absence of any question as to the credibility of their avowed intent to remain in Worcester, they must be registered to vote there:8 "When a
student of voting age declared that he intended to make Worcester his home, we do not think that the registrars were required to take an adversary position as to his intention solely because he was a student."9 Rejection of this bureaucratic miserliness is consistent with
a later legislative requirement that registrars place a new voter's name on the rolls if he files an affidavit satisfying the conditions for eligibility.10 Only later, if registrars "have probable cause to believe
that the voter has made a false statement," may they summon him to
appear for examination."11 The Appeals Court reached a similar
re-sult in Coulombre v. Board of Registrars of Voters, 12 where it found the
petitioner to be a Worcester resident for voting purposes notwith-standing his confinement in the Worcester State HospitalP
C. PUBLIC EMPLOYEES
§10.6. Civil Service Appointment Priorities. In Director of Civil Service v. Town of Milton, 1 the Supreme Judicial Court was called upon
to reconcile its earlier decision in the same case upholding a state statute giving priority to police applicants who reside in a
municipality2 with a consent decree entered by the United States
Dis-trict Court of the DisDis-trict of Massachusetts prohibiting racial
discrimi-nation in police hiring.3 The United States Court of Appeals for the
First Circuit had found that a general intelligence examination for police applicants used by the Civil Service Commission discriminated against black and Spanish-surnamed applicants and was not signifi-cantly related to an applicant's ability to perform the duties of
policemen.4 Therefore, on remand, the district court entered a
con-sent decree establishing priority pools to provide compensatory relief
7 1974 Mass. Adv. Sh. at 2437, 321 N.E.2d at 663. 8 !d. at 2441, 321 N.E.2d at 665.
9 !d.
10 G.L. c. 51,§ 42. 11 !d. § 47B.
12 1975 Mass. App. Ct. Adv. Sh. 578, 326 N.E.2d 360. 13 /d. at 583, 326 N.E.2d at 363.
§ 10.6. 1 1974 Mass. Adv. Sh. 2309, 320 N.E.2d 883.
2 Director of Civil Serv. v. Town of Milton, 1974 Mass. Adv. Sh. 843, 312 N.E.2d 188.
For a discussion of the Milton case, see Comment, 1974 ANN. SuRv. MAss. LAW§ 17.5, at
419-34. .
3 Castro v. Beecher, 365 F. Supp. 655 (D. Mass. 1973).
§10.8 STATE AND LOCAL GOVERNMENT 195
for such wrongfully rejected applicants. 5 In order to harmonize its
earlier decision-giving priority to residents-with the federal court's remedy, the Supreme Judicial Court directed the single justice to
enter a judgment that the Massachusetts resident6 and veteran
priorities7 were to be given effect within the federal court's priorities.8
It would, therefore, appear that there are now twenty-eight different
priorities affecting the appointment of a policeman. Within each of the four federal categories,9 there will be considered: first, the person
with the higher grade; second, a disabled veteran resident; third, a veteran resident; fourth, a resident; fifth, a disabled veteran nonresi-dent; sixth, a veteran nonresinonresi-dent; and seventh, a nonresident.
§10.7. Grooming Codes. In Board of Selectmen v. Civil Service
Commission, 1 the Court considered the validity of a regulation of the
Framingham Police Department concerning the hair styles of police officers in that town. The Court concluded that "within the commodi-ous concept of liberty, embracing freedoms great and small, is the right to wear one's hair as he wishes,"2 but remanded the case to the Civil Service Commission to decide if there was a sufficient
govern-mental interest to overcome the right.3
§10.8. Permissible Scope of Inquiry into Off-Duty Conduct. In
Broderick v. Police Commissioner, 1 the Supreme Judicial Court held that a
policeman can be required to answer questions about his off-duty
conduct relating to the performance of his official duties.2 The Boston
Police Patrolmen's Association sought an injunction against the Police Commissioner's inquiry into the conduct of some 90 Boston police-men in Newport, Rhode Island, where they had gone on their own time to participate in a parade.3 Shortly after the parade, the Police
Commissioner received numerous complaints about the policemen's
conduct at the Ramada Inn where they had stayed the night before.4
It was reported that 15 to 20 police officers were diving and playing
nude in the swimming pool, that during the night a group of men roamed about the hallways using foul language, and that the hotel
li-5 365 F. Supp. at 661-62. 6 G.L. c. 31, § 48A. 7 !d. § 23.
8 Director of Civil Serv. v. Town of Milton, 1974 Mass. Adv. Sh. 2309, 2319-20, 320
N.E.2d 883, 887.
"See 365 F. Supp. at 661.
§ 10.7. 1 1974 Mass. Adv. Sh. 2389, 321 N.E.2d 649.
2 !d. at 2402, 321 N.E.2d at 655, quoting Richard v. Thurston, 424 F.2d 1281, 1284-85
(I st Cir. 1970).
3 1974 Mass. Adv. Sh. at 2402, 321 N.E.2d at 655.
§ 10.8. 1 1975 Mass. Adv. Sh. 1838, 330 N.E.2d 199, cert. denied, 96 S. Ct. 773 (1976). 2 !d. at 1848, 330 N.E.2d at 205.
196 197 5 ANNUAL SURVEY OF MASSACHUSETIS LAW §10.9
quor cabinet was broken open and five quarts of liquor were stolen. The Portsmouth police were summoned twice during the night and the state police once.5
In the subsequent investigation, 140 policemen who had been off duty that weekend were asked if they had been registered or present at the Inn and if they had witnessed any of the alleged events, and
were requested to recount what took place at the parc:tde.6 The Court
had no trouble concluding that the events were close' enough to
offi-cial conduct to allow the challenged inquiry. 7 The men were known to
be Boston Police, they marched in the parade in uniform under police, city, and state flags, and they had Boston Police motorcycles.8
The Court discussed at length the considerations and case law govern-ing the scope of permissible inquiry into a policeman's private conduct.9
§10.9. Political Activity by Police Officers. In two consolidated
cases, the Supreme Judicial Court upheld rules of the Commissioner of Public Safety of the Commonwealth prohibiting political activity by
state police officers1 and of the Boston Police Commissioner requiring
police officers to take leaves of absence without pay if they become
candidates for political office.2 In O'Hara v. Commissioner of Public
Safety, 3 a state trooper was suspended without a hearing when he was
certified as a candidate for City Councilor in Revere.4 The Court
dis-cussed the circumstances where a temporary suspension without a hearing is Constitutionally permissible, indicating that such emergency measures do not constitute due process violations when there are no
factual questions as to the alleged improper conduct.5
In the second case, Boston Police Patrolmen's Association, Inc. v. City of Boston, 6 a patrolman was suspended when he was certified as a
candi-date for the Boston City Council. 7 The patrolman argued that the
Commissioner's rule was void because it conflicted with a state law that only prohibited civil service employees from running for state
of-fice or for the ofof-fice of mayor. 8 The Court considered the power of a
5Jd.
6ld. at 1841, 330 N.E.2d at 201. 7ld. at 1847, 330 N.E.2d at 204.
"I d.
"See id. at 1845-47, 1849,330 N.E.2d at 203,205.
§ 10.9. 1 O'Hara v. Commissioner of Public Safety, 1975 Mass. Adv. Sh. 990, 326 N.E.2d 308.
2 Boston Police Patrolmen's Ass'n, Inc. v. City of Boston, 1975 Mass. Adv. Sh. 979,
326 N.E.2d 314.
3 1975 Mass. Adv. Sh. 990, 326 N.E.2d 308.
4ld. at 990-91, 326 N.E.2d at 310.
•u.
at 998-1002, 326 N.E.2d at 312-13.6 1975 Mass. Adv. Sh. 979, 326 N.E.2d 314. 7 ld. at 979, 326 N.E.2d at 316.
§10.10 STATE AND LOCAL GOVERNMENT 197
municipality to adopt a rule that may impinge on, though not con-tradict, state law.9 Since the rule in question did not "forbid what the
statute permits, nor permit what the statute forbids," the Court con-strued the rule so as to give reasonable effect to both the rule and the statute.10
In both the O'Hara and Boston cases, the trial judge had found that
the policemen were members of quasi-military organizations subject to strict discipline, hazardous duty, and call to action at all hours, with power to interrogate and arrest citizens. Campaigning for office might create both a conflict of duty and a conflict of interest: "[F]or exam-ple, the police officer might be reluctant to interrogate fully, to arrest, or otherwise to enforce the law against a citizen who might have the power to affect substantially the outcome of the campaign."11 On this
basis, the Court held that the rules had a reasonable constitutional basis.
§10.10. Conflict of Interest Statute: Implied Private Right of Action. A public official must now expect private persons who are
adversely affected by his official acts to bring suit to set aside action taken in violation of chapter 268A of the General Laws, the conflict of interest statute. In Everett Town Taxi, Inc. v. Board of Aldermen, 1 the Supreme Judicial Court held that a private corporate plaintiff was a
proper party to bring an action under section 2l(a) of chapter 268A.2
The Court also held that the plaintiffs, business competitors of the defendant corporations, had standing to invoke this implied private
remedy.3
In Everett, one of the aldermen and the chief of police of Everett and his wife were officers of taxi companies operating in and,
there-fore, regulated by the City of Everett.4 The plaintiffs, competing taxi
companies, sought revocation of the licenses issued to the defendant companies and were met by a plea in bar alleging that they had no standing to bring suit under section 2l(a).5 That section is silent as to
who may avail themselves of it. It simply provides:
In addition to any other remedies provided by law, any violation of [various sections of the statute] which has substantially influ-enced the action taken by any municipal agency in any particular
"See 1975 Mass. Adv. Sh. at 983-85,326 N.E.2d at 318.
10 !d. at 985, 326 N.E.2d at 318.
11 O'Hara, 1975 Mass. Adv. Sh. at 993-94, 326 N.E.2d at 317; Boston, 1975 Mass. Adv.
Sh. at 981-82, 326 N.E.2d at 311.
§ 10.10. 1 1974 Mass. Adv. Sh. 2367, 320 N.E.2d 896.
2 Id. at 2373, 320 N.E.2d at 899.
3 !d. at 2374, 320 N.E.2d at 899-900. For a discussion of implied remedies under
fed-erallaw,see Comment, 17 B.C. IND. & CoM. L. REV. 53 (1975).
4 !d. at 2368, 320 N.E.2d at 897.
198 197 5 ANNUAL SURVEY OF MASSACHUSETTS LAW §10.12
matter shall be grounds for avoiding, rescinding, or cancelling the action on such terms as the interest of the municipality and
inno-cent third persons require.6
Facing the question that it had reserved in two earlier decisions, 7
the Court held that private parties may invoke section 21 (a). 8 It
reasoned that the broad remedial purposes of the statute would be best served if those persons affected by a violation could be heard to
complain.9
§10.11. Municipal Treasurers: Deposit of Funds. Chapter 248 of the Acts of 197 5 amended section 55 of chapter 44 of the General Laws to prohibit municipal treasurers from depositing public funds in any bank with which such treasurer is associated as an officer or em-ployee or has been so associated within three years prior to the
de-posit.
D. HoMERULE
§10.12. Validity of Municipal Ordinance Altering Form of Plan-ning Board. In Del Duca v. Town Administrator, 1 the Court considered
the validity of an ordinance adopted by the Town of Methuen that changed the method of appointment, the term of office, and the
powers of members of the town's planning board. 2 The ordinance was
challenged by two members of the existing board who would have
been displaced if the new ordinance were held effective. 3 The Court
emphasized, as it had in Bloom v. City of Worcester, 4 that the Home
Rule Amendment5 and the Home Rule Procedures Act6 repudiated
"Dillon's Rule," which provides that a municipal corporation possesses and can exercise only those powers granted in express words by the Legislature, those necessarily implied in or incident to the powers ex-pressly granted, and those essential to the accomplishment of the
de-clared objects and purposes of the corporation. 7 The Home Rule
Amendment permits municipalities to exercise any power or function
6 G.L. c. 268A, § 21(a).
7See Crall v. City of Leominster, 1972 Mass. Adv. Sh. 1167, 1177,284 N.E.2d 610, 617-18; Moskow v. Boston Redevelopment Authority, 349 Mass. 553, 571, 210 N.E.2d 699, 710 (1965), cert. denied, 382 U.S. 983 (1966).
8 1975 Mass. Adv. Sh. at 2372-73, 320 N.E.2d at 899. 9 !d. at 2370-73, 320 N.E.2d at 898-99.
§ 10.12. 1 1975 Mass. Adv. Sh. 1792, 329 N.E.2d 748.
2 !d. at 1795-96, 329 N.E.2d at 751. The Methuen Planning Board was established
pursuant to G.L. c. 41, § 81A.
3 1975 Mass. Adv. Sh. at 1794-95,329 N.E.2d at 750.
' 1973 Mass. Adv. Sh. 291, 293 N.E.2d 268.
5 MASS. CoNST. amend. art. LXXXIX. 6 G.L. c. 43B.
§10.13 STATE AND LOCAL GOVERNMENT 199
not expressly denied in its charter that the Legislature could have conferred, so long as the exercise of that power is not inconsistent with the Constitution or a general law that applies alike to two or more cities and towns. 8
The Del Duca case presented the question whether a town has the
power to alter its planning board from the form that it had estab-lished under chapter 41 of the General Laws to a new one with terms and powers that differ from those set forth in the General Law. The defendants argued that, because Methuen had been required to adopt a planning board in statutory form, its situation was different from
that of a municipality that had merely accepted enabling legislation,9
in which case the Court had held that a subsequent change can only
be made by the Legislature.10 The Court, however, concluded that
such a distinction favored the plaintiffs, stating that "if a municipality is prohibited from revoking its acceptance of a statute which it was free to decline to accept to begin with, it is a fortiori prohibited from rescinding its implementation of a statute which it was required to implement. "11
Thus, the Court held that the town could not change the term of members of its planning board from five years, as provided in section 81A of chapter 41 of the General Laws, to three years, and could not specify powers and duties different from those set forth in chapter
41.12 Applying the standard for discovering an inconsistency set forth
in Bloom, 13 the Court held that section 81A of chapter 41
comprehen-sively details the term, method of selection, and method of removal of
members of local planning boards.14 The Court pointed out, however,
that the Legislature has allowed municipalities to decide on the number of members of the board, from five to nine, and to
deter-mine whether the members shall be elected or appointed.15 It then
applied the severability rule16 to the ordinance, and upheld the power
of the town to set a different number of members and to authorize the town administrator to make appointments, but denied the town's authority to alter the terms of office of, or the powers of members of
the board.17 Thus, it invalidated the administrator's purported
re-placement of the plaintiffs until their terms had expired.
§10.13. Validity of Hybrid Municipal Charter. In its Opinion to
8 1975 Mass. Adv. Sh. at 1801-02, 329 N.E.2d at 753. 9 !d. at 1799-1800, 329 N.E.2d at 752.
10 Brucato v. Lawrence, 338 Mass. 612, 615-16, 156 N.E.2d 676, 679 (1959); see Chief
of Police v. Dracut, 357 Mass. 492, 497-98, 258 N.E.2d 531, 534 (1970).
11 1975 Mass. Adv. Sh. at 1800, 329 N.E.2d at 752. 12 !d. at 1809, 329 N.E.2d at 755.
13 1973 Mass. Adv. Sh. at 307-09, 293 N.E.2d at 753-54. See text at notes 5-8 supra. 14 1975 Mass. Adv. Sh. at 1808, 329 N.E.2d at 755.
15 !d. at 1810, 329 N.E.2d at 755.
200 197 5 ANNUAL SURVEY OF MASSACHUSETTS LAW §10.15
the House of Representatives, 1 the Court considered whether the
Legisla-ture could approve a charter that made the municipality of
South-bridge neither a city nor a town but something of a hybrid.2 The
Court held that, although the Legislature could have placed some limitations on the form of municipal charters for the sake of uniform-ity, its failure to do so allows both municipalities and the Legislature
to approve unique forms of municipal government.3
§10.14. Powers of School Committees: Sick Leave Bank. In
Allen v. Town of Sterling, 1 the Court upheld the power of a school
committee to establish a sick leave bank for teachers. 2 The Court
readily rejected the claim that the Legislature has not given such power to cities and towns, pointing out that under section 6 of the
Home Rule Amendment3 "towns may by by-law exercise any power or
function which the general court has power to confer on them."4
Then, without even a sentence of explanation, the Court endowed school committees with similar constitutional powers, stating merely that "school committees have long had 'broad powers, important duties and large discretion.' "5 The conclusion is probably sound for
the sake of coherent conduct of local affairs and preservation of tradi-tional relationships between school committees and municipal gov-ernments. Nonetheless, the Court's willingness to take such a giant constitutional leap without careful analysis is rather surprising.
§10.15. Charter Revision: Term of Office of Mayor. In Medeiros
v. Board of Election Commissioners, 1 the Court held that the voters of Fall
River could take advantage of section 17D of chapter 43 of the
Gen-eral Laws and vote to reduce the term of their mayor from four to
two years,2 notwithstanding the Legislature's establishment of the
four-year term by a special act in 1965.3 The Court was undoubtedly
right in deciding that there is no reason why Fall River, simply be-cause it obtained a special act extending the term of its mayor before
the enactment of section 17D, should not now be able to take
advan-§ 10.13. 1 1975 Mass. Adv. Sh. 2613, 332 N.E.2d 896.
2 Id. at 2613, 332 N.E.2d at 897. Under the Southbridge Charter, the town council
had the powers and duties of a town meeting and the town manager had the powers and duties of a board of selectmen. !d.
3 !d. at 2624, 332 N.E.2d at 900-01.
§ 10.14. 1 1975 Mass. Adv. Sh. 1697, 329 N.E.2d 756. 2 Id. at 1702-03, 329 N.E.2d at 759.
3 MASS. CoNST. amend. art. LXXXIX, § 6.
4 197 5 Mass. Adv. Sh. at 1700-0 I, 329 N .E.2d at 7 58.
5 ld. at 1701, 329 N.E.2d at 758, quoting Leonard v. School Comm., 241 Mass. 325,
329, 135 N.E. 459, 461 (1922).
§ 10.15. 1 1975 Mass. Adv. Sh. 862, 325 N.E.2d 579.
§10.15 STATE AND LOCAL GOVERNMENT 201
tage of section 17D and revert to a two-year term. The Court pointed out that the city could have taken this step by the more cumbersome
method of charter revision under the Home Rule Amendment. 4 The
Court did not, however, attempt to draw the line between governmen-tal matters subject to the charter and thus capable of modification through the revision process, and matters controlled by the General Laws which, under Del Duca v. Town Administrator," cannot be altered without legislative approval. 6
4 1975 Mass. Adv. Sh. at 869, 325 N.E.2d at 582.
