ML20205R785

Answer of Commonwealth of Ma Atty General in Opposition to Applicant Motion for Summary Disposition of Joint Intervenor Contentions 44A & 44B.* Applicant Misconstrues Entire Statutory Scheme.Supporting Documentation Encl

ML20205R785
Person / Time
Site:	Seabrook
Issue date:	11/07/1988
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20205R786	List: ML20205R785 ML20205R812
References
CON-#488-7456 OL, NUDOCS 8811100128
Download: ML20205R785 (48)

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'83 MTl -8 P4 :52 I UtlITED STATES OF AMERICA 11UCLEAR REGULATORY COMMISSION ,,,

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ATOMIC SAFETY APID LICENSING BOARD Before the Administrative Judges:

Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.

Dr. Jerry Harbour

)

In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL l

PUBLIC SERVICE COMPANY ) (Off-Site EP)

OF NEW HAMPSHIRE, EI AL. )

)

(Seabrook Station, Units 1 and 2) ) November 7, 1988

_ _ _ )

l ANSWER OF THE MASSACHUSETTS ATTORNEY GENERAL IN OPPOSITION TO APPLICANTS' MOTION FOR

SUMMARY

DISEOSITION OE_20lHI_ULIIBYIt10R CONIERIlQMS 4 4 A..AUD_4AB LNIR00UCIlON By their Motion for Summary Disposition the Applicants have presented to the Board their argument that in the event of a radiological emergency at Seabrook, Massachusetts law would permit the Governor of Massachuretts to delegate to a private entity all of his ,uthority and responsibility to protect the health and safe *( of Massachusetts residents. In support of this extraortbnary proposition the Applicants point to a ,

provision et the Massachusetts Civil Defense Act ("CDA") which i

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e s they argue would permit the Governor to delegate all of his authority under the CDA to private parties. The Applicants completely misread that provir'on, misconstrue the entire statutory scheme and ignore settled Massachusetts law on delegation of authority.

PROCEQURALCORTEXT The Applicants have sought summary disposition of Joint Intervenor Contentions 44A and 44D, both of which assert that the SpMC describes and contemplates an unlawful delegation of the police powers of the Commonwealth to an unincorporated association (NHY ORO) controlled by a bankrupt foreign corporation. (public Service of New Hampshire).I' The Applicants have not challenged by affidavit or otherwise the specific allegations set out in these contentions regarding the scope of the authority that would have to be delegated if the SpMC were to be successfully implemented.2' As stated in Basis A.2. to MAG 6: l l

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l 1/ The Applicants filed their Motion for Summary Disposition l of Joint Intervenor Contentions 44A and 448, supported by a l one-page "Statement of Material Facts Not in Dispute" and a memorandum of law on October 7, 1988.

i 2/ MAG 6 identified 19 discrete powers (7 set out in the SFMC l and 12 additional ones) that would have to be delegated to the ORO, if the ORO were to be able to implement the SpMc to the ,

xtent necessary to suppo'.t a finding that there is reasonable l assurance that adequate protective measures can and will be taken. Some of these powers involve coercion and control over persons. See MAG Contentions filed on .\pril 13, 1988, pages j 38-40.

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e o All of these enumerated powers make clear that what is contemplated, if the SpMC is to be successfully impicmented, is a fundamental transfer of the police power of Massachusetts to '

the NHY-ORO.

The Applicants, far from resisting this characterization of the design of the SpMC, have embraced .t. Their first two "statemerts of material facts not in dispute"I' read as follows:

1. The police powers of the Commonwealth of Massachusetts may be lawfully delegated by State and/or local officials to pSNH, NHY and/or the NHY-ORO.

2. The NHY-ORO is the delegatee of the police powers of the Commonwealth of Massachusetts.

Thus, as an initial matter, it is clear that the issue as it is presented by this motion is the legality under Massachusetts law of a delegation of broad police powers to the NHY ORO.4# '

i 3/ Attached to this Answer as Exhibit 1 is a separate statement in response to the Applicants' "Statement of Material Facts Not in Dispute." The Applicants' "material facts" for .

the most part are actually very disputed statements of law. In i the absence of an appropriate statement of material facts, the factual averments in the contentions should be assumed to be >

undisputed for the purposes of deciding this motion.

4/ Such a broad delegation of authority is required if the SpMC is to be implemented in "Mode 2-fu11." The SpMC also contemplates partial delegations of authority to the ORO to  ;

implement discrete component parts of the emergency response. l Contentions Joint Intervenor 44A and 44B also put the legality l of these more limited delegations at issue by asserting i generally that police powers cannot be delegated to private persons. The Applicants ignore these distinctions, apparently ,

in the belief that the police powers of the Conconwealth can bs  ;

delegated in whole or in part pursuant to the Civil Defense '

Act. Mass. Spec. L. C. 31, S$ 1-22 (hercafter "CDA").

Because the Mass AG at this point is simply opposing the

Applicants' summary disposition motion, he has taken the issue to be decided here as it is framed by the Applicants' pleadings.

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It must be emphasized that although the issue of the  !

Icgality of a delegation of police powers to a private person  ;

has been raised by this motion, the following other issues encompassed by Joint Intervenor 44A and 44B have not been put  !

t at i ssue by the Applicants: E# f t

First, MAG 6 in addition to raising the issue of the i legality of a delegation of police powers, presented '.he issue

of who could make such a delegation assuming it were lawful.0' Again, the Applicants by affidavit or otherwise have not sought to clarify the plan. Instead, rather surprisingly, the Applicants have asserted that police powers, j may be delegated by "State and/or local officials."I# To i compound the problem, the Applicants then proceed to ignore  !

completely this representation throughout their Memorandum. In j fact. the argument set out by the Applicants in support of the  !

c j legality of a delegation of police powers (at pages 5-9 of 5/ The Applicants seek "summary disposition in Applicants' I favor as to all* 111uta in Joint Intervenors' Contentions 44A i and 44B . . . . Memorandum at 4. (emphasis supplied). I 6/ In MAG 6, Basis A.1., statements in the SpMC to the effect I that the Governor, his "designee," the Director MCDA/OEp, the l

l Director's senior duty officer, and the duty officer who  ;

happens tu be at Framingham EOC at the time, all co:1d delegate i the requisite authority to ORo wt'.e identified and caellenged  ;

as unsupported. ,

7/ This is surprising because although early versions of t. h e l SPMC hypothe ized local officials delegating their authority to ORO, recent amendments deleted these provisions. At best. the l Applicants' assertion in tnis regard is legally irrelevant to f the 's8ues presented by the present version of the S *. .

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• their Memorandum) is based exclusively on the capacity of the Governor to delegate his police powers under the CDA. Thus, the Applicants assert that the "legislature has specifically permitted the Governor to delegate the authority vested in him by the CDA." (Memorandum at 7, n.7). Even if the Applicants are correct in their interpretation of the Governor's capacity to delegate his powers under the CDA, which they are not, they present no factual support or legal analysis at all to justify: 1) the representations in the SpMC that various State officials have the capacity to delegate authority to private persons 0 and 2) the renewed claim that "local officials" can' delegate police power authority. Thus, the issue of who could delegate the requisite authority, squarely presented by Joint Intervenor 44A and 44B, is not adequately joined by the Applicants' present motion.

Second, Joint Intervenor 44A unequivocably asserts that the activities contemplated by the SpMC are "ultra rings under the S/ Logically, if the Applicants are right about the Governor's capacity to delegate police powers then either he has delegated to these various State officials these powers (including the power to further delegate to private persons) or he would have to do so at the time of an emergency. If the former has occurred, then the Applicants should have provided, by affidavit or otherwise, evidence of it, so that the procedures set forth in the SpMC for obtaining the requisite authority from a variety of State officials could be judged. If the Governor has not delegated these police powers to various State officials but could, the representations in the SpMC are simply false and the emergency procedures for obtaining the requisite authority must be changed.

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laws of New Hampshire and Massachusetts." In their "Statement of Material Facts Not in Dispute" Applicants state that:  ;

3. The activities envisioned for pSNH, NHY '

and/or the NHY-ORO are not ultta vires under the Commonwealth of Massachusetts corporation laws.

Unfortunately, the Applicants present not a single word of  !

argument in support of their conclusory assertion. Again, this issue, clearly presented by the contentions, is not adequately [

joined by the Applicants' instant motion.

Third, Joint Intervenor 44A put at issue the question  !

whether a foreign corporation which had formed and maintained ,

an emergency response organization could be a proper recipient of a delegation of police power, assuming such a delegation ,

were otherwise lawful:

i Ad a corporation not licensed to do business in  !

Massachusetts, pSNH and its division NHY are not  !

authorized to engage in the contemplated activities -- i.e., act as the delegatee of the police powers of Massachusetts. ,

In response, the Applicants assert that the SpMC does not contemplate a delegation to a corporation but to a group of  ;

unidentified individuals.E' 2/ At pages 12-14, the Applicants argue in the alternative that even if pSNH is considered the "police power delegatee,"

the NEpOOL Act, M.G.L. c. 164A, authorizes such activity.

First, the Applicants misread S 4 of c. 164A. Even if Seabrook Station has been designated as a "pool or pool-planned facilit(y)" pursuant to S 1, it continues to be located in New Hampshire. The exemption from M.G.L. c. 181 provided in S 4 runs to utilities having interests in electric power facilities "within this commonwealth." Second, the Applicants simply torture the phrase "electric power f acilities QI nottinns thereof within this commonwealth." The underscored phrase obviously refers to a portion of a facility which is within the (footnote continued) z.

1. 4 (Memorandum at 12). The Applicants assert that the NHY-ORO is a nonjural person and has no legal standing. (Memorandum at 12). Although the Applicants actually do not expressly state that the delegation contemplated in the SPMC is to unnamed

• "ividuals and not to the NHY-ORO, this is an inescapable conclusion from their discussion. Several points should be noted:

1) The SPMC clearly indicates that the NHY-ORO would be the delegatee of the requisite police powers;

2) The SPMC indicates that the Applicants have acted in the past as if NHY-ORO has some form of legal standing, see Appendix C-la-1d;

3) Whether the NHY-ORO is simply an alter ego of ?SNH and NHY and, therefore, any delegation of authority to the NHY-ORO would be a delegation to a foreign corporation is an issue of fact not ripe for determination;1E' and (footnote continued) commonwealth, even if another portion is not. As to the portion of the facility within, the NEPOOL Act permits a utility to manage that asset without qualifying to do business pursuant to chapter 181. Applicants read "portion thereof" to refer not to the facility itself but to the various activities encompassed by electric utility operation. Such a reading is totally unconvincing. Similarly, the Applicants fail to grasp the significance of the fact that PSNH is a foreign corporation not qualified to do business in Massachusetts. The contention challenges the contemplated delegation of authority on the grounds that the recipient is an inappropriate one, inter alia, because PSNH cannot do business in the Commonwealth. Thus, the fact that enforcement of Chapter 181 requires affirmative action by the Commonwealth is irrelevant. As a matter of law, a delegation of police power, even if it were otherwise lawful, would not be permitted to a foreign corporation not qualified to do business in Massachusetts, 10/ It should be noted that no discovery has been permitted on Joint Intervenor 44A and 440.

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4) There is nothing in the SpMC that would alert officials of the Commonwealth to the fact that they would be delegating police powers to individuals, nor is there any indication in the SpMC which ORO individuals and positions would be the recipients of which police powers.

In view of this discussion, the issues presented in Joint Intervenor 44A and 44B concerning the recipient of a delegation of the police power as contemplated by the SpMC is simply not joined in the Applicants' present motion.

ARGUMENT I. THE CIVIL DEFENSE ACT DOES NOT PERMIT THE GOVERNOR TO DELEGATE POLICE POWERS TO PRIVATE PERSONS.

The issue that has been joined by the Applicants' motion is whether the Governor may Jubdelegate the police powers delegated to him oy the legislature in the CDA to private eersons.11#

Ll/ Throughout this discussion "person" or "persons" should be understood to include a private corporation or any other non-public entity as well as natural persons. As noted, the issue of who the recipient of the delegation contemplated in the SpMC is and whether he, they or it is appropriate is distinct from the question whether the delegation is even lawful.

y 8- ,e; A. DELEGATION OF THE LEGISLATURE'S POLICE POWERS It is undisputed that the power to make laws for the protection of the public health and safety is a legislative power. Massachusetts Constitution, Part 2, c.1, S 1, art. IV.

The legislature may exercise its police powers, for example, by prohibiting or regulating certain private behavior. The legislature may also provide for the public health and safety by requiring that the government itself or designated parts of that government be responsible to the public in the event of an emergency'as the Massachusetts legislature has done in the CDA. When the legislature assigns the responsibliity to implement a legislative policy to other component parts of government -- such as a policy calling for a high level, coordinated governmental response to an emergency -- it has "delegated" police powers to those component parts.1A# Thus, the legislature has "delegated to the Governor" in the CDA authority to exercise certain police powers. Director of the Civil DeLanic_Acency v . _CJ v i l S e r v i c e Co mmi111nn , 3 73 Ma s s 4 01, 404 (1977).

It is black-letter law that, in the absence of express statutory language, a public official to whom authority to 12/ Two distinctions should be drawn: (1) "Police prvers" are delegated by the legislature to public officials or political subdivisions. Any further delegation of such powers would be a avbdelegation of authority; and (2) Delegation of "police powers" is logically distinct from a delegation of "law-making" powers. The power to respond to an emergency is not a power to make laws although it most certainly is a power to direct, coerce and control.

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exercise discretionary police powers have been delegated is not f ree to subdelegate those powers at all, let alone to _a_gtha.te p.e l l o n . Commonwealth v. Smith, 141 Mass 135, 139-140 (1886)(milk inspector cannot delegate authority to take samples to ar. assistant). Egg tiurphy v. cater, 300 Mass 232, 236 (1938)(Governor cannot delegate his power ar.d duty to remove public officers appointed by him). Een alan 1967/68 Op. Att'y Gen. No. 31, pub. Doc. No. 12 at 96 (1968) (While Governor may  !

delegata authority to perform mechanical and ministerial acts i necessary to process certain requests, he may not delegate  :

decision-making authority as to those requests if statute requires that they be "authocized by the Governor.");

Eutherland stat conat S 4.14 (4th Ed) ("The general principle 1

l governing decisions in all of these situations is that if it is t

4 reasonable to believe the legislature intended a particular i i function to be performed by designated persons because of their

• special qualifications, then a subdelegation is invalid t

! . . . . Governmental power may not be lodged in private hands ;

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4 by subdelegation anymore than by an original direct delegation '

" i from the legislature itself.") i 13/ Technically, a public official is normally free to subdelegate his ministerial authority to those who are

administrative 1y directly under him. Such a subdelegation is }

distinct from subdelegating 6iscretionary authority to a dif f erent r'ablic of ficial ou agency not under the control of the original delegatee and, of course, from delegating the authority to a private person. See Sutherland Etat Canit  ;

1 S 4.14 (4th Ed). Een discussion infia at S B.2.  ;

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Such a subdelegation.by a public official of discretionary. ,

police powers delegated to him by the legislature is. entirely ,

distinct from the legislature itself expressly delegating certain limited law-making' powers to private persons.1A#

f Thus, the Applicants' reliance on the cases upholding narrow

• and carefully circumscribed delegations of authority by the legialature to private persons, therefore, is misplaced. In  !

fact, if any public official to whom authority has been delegated can delegate that authority to private persons  ;

without express authorization to do so in the statute initially -

delegating authority to him, then the exception to the general i tule of "nondelegation of' powers" swallows that rule. See Opinian of the Jusilnes, s_upI.a 328 Mass. at 676.

i In fact, any delegation or subdelegation of discretionary  !

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authority to a private person requires express language. In the CDA, there is no express delegation of authority to private I i

14/ The legislature may delegate to a private person "the ,

implementation of details of a legislative policy." ERS lOVn l l- 0f_AE_11Rgion v. D_ott_d_pf_ Conciliation and Arbitration, 370

Mass. 759, 775 (1976). However, proper . safeguards must be provided if such a delegation is not to violate the "nondelegation" doctrine prohibiting any branch of government from transferring its pswers to any other person or group of  !

persons. Opinion of the Justices, 328 Mass. 674, 675-76 '

(1952). proper safeguards include judicial review, the impartiality of the private party and clear standards and

• procedures set forth in the statute that effectively limit the ,

discretion exercised by the private party. IsHn_o.f_Axlingto n ,  ;

supra at 777. Sen alan ueLDInto V. Fi r eJUa n '_s Fund _inAu rA nce i Co., 383 Mass. 243, 246 (1981). Thus, even if the Board i interprets the CDA to permit the Governor to subdelegate police [

powers to private parties, that subdelegation would run afoul  :

of the standards for permissible direct legislative delegation  !

to private persons.

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e persons and no express permission to any public official to subdelegate his delegated authority to a private person. l Moreover, even if the legislature could constitutionally t

delegate-emergency police powers to a private person, it -;

instead has expressly delegated these powers to varioue public  !

officials as discussed in detail below. Thus, without express language in the delegation by the legislature to these public f officials to the effect that they may subdelegate their powers j to private persons, there simply is no basis for reasoning that f 1

the legislature intended such a result. Further, as noted below, the legislature in delegating emergency powers to the -

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Governor and other public officials intended to prescribe the- [

duty of these officials to protect the health and safety of the i

public in the event of an emergency.

Such a fundamental duty resides in civil government by its very r.ature and without an 1

1 express authorization that such basic responsibilities may be delegated to private persons, there is ao basis for asserting ,

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i in this case that that kind of "authority normally exercitied by i i

the government may be delegated to private persons.-

- i Applicants Memorandum at 7.

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l l j B. The CDA and the Lecislativa Scheme.  !

In light of this basic doctrine, the narrow issue i

becomes whether in the CDA the legislature intended to permit i n

, the Governor to subdelegate the emergency powers delegated to i l

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him to private persons. The CDA simply will not support such an interpretation.

1. The Civil Defenag Act.

The Massachusetts Civil Defense Act was originally enacted in 1950. St. 1950 c. 639. It is modeled after civil defense statutes enacted during each of the two World Wars. Campare St. 1917, c. 342, SS 1-28; St. 1941,

c. 719; and St. 1942, c. 13, SS 1-12. It was a legislative response to what was perceived as a temporary or transitory situation, Director of the Civil Defense Agency v. Civil Satylce Commissi.on, sup_La, 373 Mass at 404, reflecting "the -

increasing intensification of the Cold War and exacerbated fears of enemy attack, sabotage, or other hostile action."

Cella, Maslachuse11sl tagli_c_e Series: Administrative LaH_and P.tacti_ce S 52, p. 151 (1986). As originally enacted, the Civil Defense Act, by its own terms, was to expire on July 1, 1952 and provisic1s was made for an earlier expiration upon joint resolution of the House and Senate. Its life was extended for an additional year in 1952 and was made indefinite in 1953, St.

1952, c. 269; St., 1953, c. 491, although it has not yet been incorporated into the General Law and continues to be subject to termination upon joint resolution. CDA, S 22.

The CDA defines civil defense functions as follows:

Said functions shall include specifically, but without limiting the generality of the foregoing, fire fighting and police services other than the actual control or suppression of riot or other civil disturbance, medical and health services, 13 -

I rescue, engineering and air-raid warning services, evacuation of persons from stricken areas, emergency welfare services, h communications, radiological, chemical and other special weapons of defense, emergency transportation, existing or properly assigned functicns of plant protection, temporary restoration of public utility services and other functions.11/ S 1. ,

l Thus, the issue becomes to whom the powers to engage in civil defense functions have been delegated in the CDA and whether that authority may be further subdelegated to private persons.

2. IIIe Leaislative Schema The CDA sets forth in considerable detail the powers and authorities delegated to public officials and governmental entities. The legislature does not mention in any provision of the CDA any delegation or subdelegation to private parties. There is a provision which would permit the Governor to subdelegate administrative authority to the Director of the Civil Defense Agency. The Applicants' entire argument is based on a misteading of this provision so as to allow the subdelegation of all authority under the CDA to private parties, 11/ There is no question that the powers and authority to be delegated pursuant to the SpMC are the powers to engage in "civil defense functions" as the legislature has defined them.

Obviously, these are public functions as is tacitly acknowledged by the Applicants when they represent that they are not free to unilaterally engage in these activities.

1 In the CDA, the legislature has delegated specific powers and authority to three different public officials or governmental entities. First, as noted, the Massachusetts legislature has delegated to the Governor emergency powers, and this delegation ranges from the granting of specific discrete powers to a delegation of broad emergency authority.II/ Second, the legislature has delegated to t?1 Director of the Civil Defense Agency and Of fice of Emerg' r cy preparedness ("CDA/OEp") the following powers and authority:

He (the Director] shall co-ordinate the activities of all organizations for civil dsfense within the commonwealth, and shall co-operate and maintain liaison with civil defense agencies of other states and the federal government, shall, subject to the direction and control of the governor, be the executive head of the civil defense agency, and shall have such additional authority, duties and responsibilities etthorized by this a t as may be prescribed by the governor, / and shall be responsible to the governor for carrying out the program for civil defense of the commonwealth. S 2.

In short, the legislature has delegated to the Director the following specific powers: he shall 1) coordinate activities of all civil defense organizations; 2) maintain liaison with

[6/ Clearly, the broadest specific emergency power granted to the Governor is the pcwer to set aride laws. CDA $ 8A.

12/ As discussed in more detail below, this phrase identifies the Director as the appropriate recipient of additional authority as "prescribed" by the Governor. In other words, certain powers and duties identified in the CDA may be subdelegated by the Governor to the Director.

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states and the federal government: 3) direct the civil defense agency; and 4) carry out the civil defense program for the Commonwealth. With regard to the latter two responsibilities, the Director is responsible to the Governor and subject to his direction and control.

Finally, the legislature identified a third governmental entity or group of entities as the recipient of delegated authority:

Each political subdivision of the commonwealth is

, hereby authorized and directed to establish a local organization for civil defense in accordance with the state civil defense plan and program.

Each local organization for civil defense shall have a director, . . . who shall have direct responsibility for the organization, administration and operation of such local organization for civil defense, subject to the direction and control of such appointing authority. Each incal organization _for__cly_il d elen n.e_thsdL gexto r m c i v i Ldefens e_f unctiolta WLthin_the_ t enih.tr_ial limits of the o_olitical stibdlyisisp within tiltich it is orcantred . . . .

S 13 (emphasis supplied).

As noted, "civil defense functions" include all of the activities that the Applicants argue would be engaged in by flHY ORO after a delegation of authority by the Govetnor. Thus, in sum, in the Civil Defense Act the Massachusetts legislature has delegated different powers and authority to three different governmental officials and political subdivisions. The legislature has delegated to the Governor a range of emergency l r

powers and put the entire civil defense agency under his 16 -

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"general direction and control." S 4. To the Director of CDA/OEP, the legislature has delegated specific responsibilities for coordinating the various civil defense organizations that the CDA creates. Finally, the local civil defense organizations have been delegated the authority to perform the necessary civil defense functions in their ,

respective local political subdivisions.

It is in this context, that the ability of the Governor to subdelegate his powers and authority under the CDA must be understood. As noted, it is black-letter law that once the i 4

legislature has delegated its authority to specific of ficials-or governmental bodies, that authority essentially stays put.

In fact, the delegation of similar or interrelated powers and i authority under the CDA to more than one delegatee, indicates a legislative intent to provide a coherent structured scheme in furtherance of the legislature's awareness of the need for a coordinated high level response to an emergency. Any persuasive interpretation of the nature and scope of the powers ,

delegated to cich of these dolegatees -- here specifically the Governor -- including a delegatee's capacity to subdelegate l t

that authority must reflect the legislative scheme.  :

The scope of the powers and authority granted to the Governor in the CDA simply does not support the Applicants' ,

interpretation. The Applicants rely exclusively on the 1 language contained in Section 4 for the proposition that the Governor may lawfully delegate to the NHY ORO all necessary i

authority.IA' In fact, Section 4 will not support the Applicants' position. The powers and duties set forth in that section, for the most part, involve administrative duties and responsibilities that reflect the fact that the CDA. creates an agency or "division of civil defense" which is "within the executive branch" end, therefore, under the administrative authority of the Governor. $ 2. Thus section 4 provides: 1) that the Governor shall have "general direction and control of the civil defense agency"; 2) that he may authorize employraent of personnel and expenditure of funds; 3) that he may cooperate with other governments end private agencies 1A# with regard .

1.8 / At page 5 of the Applicants' Memorandum, they assert that "the CDA expressly contemplates participation by private parties and permits the Governor to delegate the authority yes ted in him by the legis la tu re. " (emphasis supplied). As is clear from the text above, the Applicants' position is unpersuasive on the dispositive issues of what altthority granted him by the CDA the Governor may delegate and to whom or tn Rha.t he may delegate those powers and authority. In addition, the Applicants ignore the fact that the CDA contains a delegation by the legislature to both the Director and to the local response organizations of the various political subdivisions. Obviously, since the latter grant of authority includes the very powers to engage in civil defense functions which would be carried out by NHY ORO, the Applicants assume, without any suppotting argument, that the Governor's authority under the CDA includes the power to delegate to a private norson the very powers already expressly delegated by the legislature to local organizations.

IR/ At page 5 of their Memorandum, the Applicants argue that the fact that Section 4 provides that the Governot may "cooperate with . . , private agencies" in civil defense matters supports their notion that he may "delegate the authority vested in him by the legislature" (Memorandum at 5) to a private party. This argument is without merit. First, the word "cooperate" does not mean or imply "delegate."

Second, the legislature in the very same section chose the word

"delegate" when it intended "delegate." Third, as noted, a j delegation of authority to private parties to perform public l functions should be unambiguous and clear and not based on any creative excursion into uncharted semantic territory.

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• to civil defense matters; 4) that he may make studies to determine the civil defense capabilities of the Commonwealth; and 5) that he may appoint certain metropolitan directors. '

These are the powers and duties delegated to the Governor r

by the legislature in section 4 which the legislature intended to permit him to subdelegate:

He may make studies and surveys to ascertain the capabilities of the commonwealth for civil ,

defense and to plan for the most efficient emergency uses thereof, may_ delegate._any adRliDishA_tLiy_e.. ALLth011ty._1Rited_1n him ynder this act, and may appoint, in co-coperation with local authorities, metropolitan area directors.

It is highly significant that the underscored phrase in this .

sentence is the only reference in the CDAAE# to the capacity of the Governor to delegate any authority granted to him by the legislature. Clearly, the legislature intended to identify a ,

subset of the powers and authority granted to the Governor --

labelled "administrative authority" -- and permit him to delegate those powers.11' This follows quite rationally 2Q/ Or in any other relevant statute. As noted, the position l of the Applicants on this issue rests entirely on this phrase  ;

which they interpret as permitting the Governor to delegate any l and all of his powers and authority under the CDA to any one, '

including a private person.

21/ As discussed in more detail sugIA, the Applicants have presented no argument to support the notion that the Governor could delegate even his "administrative authority" to private persons. In fact, other sections of the CDA indicate that the Governor's "administrative authority" is to be delegated to the '

Director of the civil defense agency.

from the structure of the CDA which created an agency under the direction of the Governor. The legislature intended in the first place to identify that agency as one under the administrative authority of the Governor and, in the second place, to make clear that the Governor was free to delegate this administrative authority.22' Further support for this interpretation of the scope of the Governor's delegable "administrative authority" under the CDA is found in the legislative history of this statute. The Massachusetts House Committee Report A of the Committee on Military Affairs and public Safety dated June 26, 1950 indicates that an initial draft of Section 4 would have permitted the Governor to delegate any authority under the CDA. Interlineated between the words "may delegate" and "authority" are the words "any administrative." This indicates a legislative intent to distinguish between those powers and authority which the Governor may subdelegate and those he 22/ This interpretation reflects the established doctrine already discussed that subdelegations of authority must be expressly provided for in the primary enabling delegation.

Further, this interpretation of "administrative authority" further supports the argument that the appropriate delegatee of the Governor's administrative authority is the Director of the Civil Defense Agency.

13 / A copy of this Report is attached as Exhibit 2. ,

. . l i

I must retain.AA prior emergency powers legislation had not distinguished between those pcwers which the governor could delegate and I those he could not. For example, Section 12 of the Commonwealth Defense Act of 1917 provided as follows:

Whenever the governor shall determine that circumstances warrant the exercise by him of all at__any_nt._the_.poweIA conferred on him by this act, [which included, inter (Lla, emergency powers akin to those set forth in section S 7 of the CDA) he may, . . . by writings signed by him, confer upon such officials of the commonwealth or any political division thereof, or such officer of the military or naval forces of the commonwealth, or such other_peIJon_nt_pers.ons_GE h.e_may_sel ec.t , full power and authority to do in his name whatever may be necessary to carry the said powers into effect. He may revoke such written authority at any time. St. 1917, c. 342

$ 12 (emphasis supplied).

Thus, the earlier war-time emergency powers legislation permitted the Governor to subdelegate any and all of his powers to any nerann. Against this background, it is clear that the words "any administrative" added to section 4 of the CDA in 1950 were intended as words of limitation on the Governor's capacity to subdelegate.AE#

24/ Both the Committee Report and the CDA as enacted limited the delegation of any authority, whether administrative or not, to public officials.

25./ Also, it should be noted that the legislature in the CDA did not expressly provide for a delegation of even administrative authority by the Governor to any person as it had in the war time emergency pr.wers act. Again, if the legislature intended to permit such an unusual delegation it knew how to do so.

, ,. i y Finally, the Applicants' assertion that the legislature intended to permit the Governor to subdelegate all the powers

, and authority vested in him by the CDA, is patently absurd in l

[

light of the scope of those powers. Echoing the earlier  ;

war-powers acts, section 7 of the CDA' states: l During the effective period of so much of this  !

act as is contingent upon the declaration of a state of emergency as hereinbefore set forth, the {

governor, in addition to any other authority i vested in him by law, rahall have and may exercise  ;

any and all authurity over persons and property, l necessary or expedient for meeting said state of emergency, which the general court in the exercise of its constitutional authority may l confer upon him as supreme executive magistrate

)

of the commonwealth and commander-in-chief of the -

military forces thereof Thus, the Applicants' argument that the Governor is permitted to subdelegate to private persons the powers delegated to him ,

1 i

! in the CDA is subject to a reductio ad absurdum: those powers  !

reach to the constitutional limits of the legislature's j emergency authority. Such authority inuludes plenary power

(

affecting fundamental interests of liberty, property and self-government.AI# The permission to subdelegate l l

"administrative authority" set forth iu $ 4 should not be l i intecpreted as authority to subdelegate any and all emergency  ;

1 l powers delegated to the Governor under the CDA to any one at f all including private persons, i

26/ Such emergency authority includes the power to suspend laws pursuant to Article XX of the Massachusetts Constitution. l The legislature delegated this power to the Gsvernor as well in the CDA. S 8A. As to the scope of such a power under the M a s s a c hu s e t t s Co n s t i t u t i o n s e e OpinimLnL1he_hs11c.c s , 315 i Mass. 761, 767-769 (1944). l f

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_ _ _ _ _ _ - _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ - - - _ . . _-_ _ _ - _ .L

s e

3. D.clegation_V_ersus_As sistanc_e The Applicants attempt to buttress their interpretation of the CDA by citing a variety of statutes in ,

support of tne proposition that there is ample precedent for the legislature to delegate or autnorize the delegation of authority to private persons in times of emergency. The delegation contemplated by the SpMC, again, is just one more example.

Memorandum at 9. This argument is a non-starter because not one of the statutes cited involves a delegation of authority.12/ Instead, these statutes, as well as many others, simply permit private persons, by contract or otherwise, to assist pubile officials and agenciee in meeting their statutory obligations.AA' 17/ For example, M.G.L. c. 22, S 6 permits the commissioner to engage experienced skindivers during emergencies. Chapter 48, S 10 permits the forest warden and his deputies to require adult males to assist them in fighting forest fires. Chapter 48, S 44A permits cities and towns to contract out fire fighting services. None of the statutes cited by the Applicants even approaches a delegation of authority to private persons.

21/ To the extent that the ORO simply assists the Commonwealth in making a best-efforts response to a radiological emerger.cy by supplying additional resources, including equipment and personnel, the SpMC characterizes such an implementattion as Mode 1. See plan 3.1-2. Delegation of authority is required by Mode 2 because the ORO "assume (s) responsibility on behalf of the State / locals." Id. Obviously, no delegation of authority is contemplated to implement Mode 1.

23 -

CONCLUSION For all the reasons set forth above, the Applicants' Motion for Summary Disposition on all issues presented by Joint Intervenor Contentions 44A and 448 should be denied. The Mass AG requests oral argument on this matter.

Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL t

'/ (

John Traficonte -

Assistant Attorney General Department of the Attorney General One Ashburton Place Boston, MA 02108 617-727-2200 Date: November 7, 1988 1

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1 EXHIBIT 1

0 EXHIBIT 1 RESPONSE OF MASS AG TO APPLICANTS' STATEMENT OF MATERI AL FACTS NOT IN' DISPUTE

1. The Applicants' first statement is not a statement of fact at all but a disputed issue of law. The police powers of the Commonwealth necessary to perform those actions essential to an adequate emergency response may not be lawfully delegated by the Governor or anyone else. Moreover, it is unclear what the Applicants intend when they state that it is not in dispute that these police powers may be delegated to "pSNH, NHY and/or

'the NHY-ORO." (emphasis supplied.) If read in the conjunctive, this statement is disputed by the Applicants themselves at page 12 of their memorandum when they assert that the NHY-ORO is a non-jural person. If read in the disjunctive this statement is unclear. Is the fact that is allegedly undisputed that at least one of three entities may be the {

1 awful recipient of police powers? If so, this "fact" is also very much in dispute and actually is a mixed question of fact and law. .

2. The Applicants' second statement is simply and j unequivocably false. The NHY-ORO is nat the delegatee of the  !

i L police powers of the Commonwesith. The only issue is not what  !

l  :

l is presently the case but whether such a contemplated (

delegation would be lawful as set forth in response to the l I

{ Also, the purpose and intent of this first statement above. ,

second statement is unclear in light of the argument that Applicants have made concerning the non-jural status of the wW-ORO.

l l f 1 1

3. As noted in the body of the Mass AG's Answer, the third statement is not a statement of fact but a disputed issue of law. The activities envisioned for PSNil, NHY and/or (?) the NHY-ORO are ultla vires.

4. The Mass AG withdraws Basis B from MAG 6 and correspondingly from JI 44A.

5. The Applicants' fifth statement without more is undisputed because it is an irrelevant truism. No entity has to qualify to do business in the Commonwealth of Massachusetts. However, it is not lawful to delegate police powers to a foreign corporation not licensed to do business in the Commonwealth.

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EXHIBIT 2

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W Gle i Gantutouturaltly of fHassarlptacits  !

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\ l i House of Represent.stives, JUDB 26

- ,19 50 ,

i I The Committee on f.filitary Affairs and Public Safoty ,

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• to whom:w:ts teferred E3Mii#fr7@MTr5/fi'nTdff%yXXXXXXXXXX57/fMid,xMX< XXXXXXTX )

so much of tho' Governor's 'Addeoss (Senate, Ifo.1) as relates to tho l catablishment of a civilian doi'on:co authority (pagos 52-54), and .

J J the potition (accompanied by bill, l'ouse, lio.1840) of Gerald P. .'  !

Lombard and Joseph D. Ward relativo to providing for the octablishment]

of a civilian.dofonco co=.tission and defining its powers and dution, I i

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j REPORT.sthoo:::cmcavh2r (in part )the accenpanying bill (Houso, fio. '2696) .

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, NT ,3 5110 601111110111U0H[!!  ! Of $USBufl}HSPl!9 IN THE Yr.AR ONE THOUSAND NINE HUNDRED AND NJ FIFTY, e, AN ACT to provide for the Safety of the Commomiccith during

% the Existence of an Emergency resulting from Disaster or from Hostile Action. '

,' h"dEREAS The defer dFreatMs, purpose, which red operation is in part ol' to this unity act would tend to the sovereign pow 6i'i'cf the commonwealth for the purpose of meeting.the.

' public need and requirements, therefore it is hereby declared to be an ecergency law, necessary for the immediate preserva-tion of the public health, satety and ccnvenience.

3 2,.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same. as followst 8

g SECT act 1.

In this3 h unless the context otherwise require $

3 the following words shall have the following meanings:-

h > "Civil defense" shall mean the preparation for and the carrying h>

out 6f all emergen.cy functions,' other than functions for which mili tary forces other than the Tational ard are primarily responsible, '

purpose of r'.

for thep11nimizing and repairing injury and damage resulting from

. ]. - disasters caused by attack, sabota6e or other hostile action or by S fire, flood, earthquake or other natural causes,' said functions j

ehall' include specifically, but without limiting the generality of j '

the foregoingjfire fighting and police services, medical and health services, rescue,' engineering and air-; raid warning services, evacua -

) .,

tion of persons from stricken areas, emergenos afare services, communications, r.adiological, chemical end other special weapons

? .

[ hott.-u.. ost.4.cerim o m. v wi ui... i.....,it,... .,y, I

e .- w. ci im. e.t.. . 4 a.-w. (.u. i ss. ..e t c4 9 .*. .a e. ..m., s .ee .

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t-of detense, e=ergency , transportation, existing or properly assigned i

functions of plant protection, temporary restoration of public utility serviceo and other functions.

"Local organization for civil defense" shall mean an organization created in accordance with the provisions of this act by state or local authority to perform local civil defense furotions.

S(l There is hereby created within the executive branch

<- Ng .g'd , pfECTION2.

/,/'

ie F of the co=:enwealth/a divisien of civil def ense hereinaf.ter called s Avhich shall be ' mder. the'.di'gection of 'a bl the "Civil Defense Agency",ixxim:x irector'offivilpbfenseherein, nf ter called the "p/irsctor'4;xkxxzkxilxhExhExaxtXN8Est-Z The governor shall with the advice and consent of the ouncil, appoint' the dir5620 ter,to serve during'his pleasure. The director'shall devote his , ,  ;

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full time to his duties under this act, shall not hold any public .s' 1

office nd_shall' x

receive a salary of eigaty-five hundred dollars toer .

a

.y.2mol.,He shall co-oDinate the activities of all organizat civil defense within'the co:conwealth jand shall cc-operate and main-tain liaison with civ11' defense agencies of other states and the l i subject toJthe directiod and'.controlcof'the g~overnce,

[ [/_ deral governdent, shall 3be the executive head of the civil defenae e  ;

agency, and shall have such additional authority, duties and respon-cibilities authorized by this act as may be prescribed by the governor, '

and shall be responsible to the Eovernor for carrying out the program for civil defense of the com:::enwealth. The director and other per-

sonnel of the ivil etensep A ency shall be provided with suitable office space, furniture, equipment and supplies in the same manner e

l- )

___.________-_------7-----

l as provided for personnel of other state departments.

i */ ,- / / i

/ SECTJ l 3. There is hereby created a, Civil Defense f

Advisory ounci , hereinaf ter called the def ence council, which shall act

~

as an advisory body to the ' governor and director on all matters pertaining to civil defense. The defense council shall consist of the governor, the director of civil defense, the lieutenant governor, l the attorney general, the adjutant general, the president of the 1

senate and the speaker of the house of representatives, the commis ,

siener of public safety, the chairman of the commission on adminis- .

J -

) tration and finance, the commissioners of public works, public l l .

L j

i health and public welfare, the chairman of the department of public

• j j utilities,:ami the chairman of the metropolitan district commission ~,',

l the sheriff s of the several counties of ths commonwealthjand the . .

l l following persons to be appointed by the Sovernoig a representative l 1

of the American Red Cross, a , rbpresentative of the Boy Scouts of America, a representative each of the city and town fire services of the commenwealth, a representative each of the law::enforcedent I the cities and torms of -

I

, ' agencies of3 the ' commonwealth and such ,other persons or corporations as the governor may designate. The members of the defense council l thall serve without compensation but may be reimbursed for actual and neces'sary expenses for services under this act. The defet.se ll council shall meet upon the call of the chairman. The governor,and

/

in his absence the irector of Civil /

/ 2 i

efense,chall be chair =an. In j I

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i the absence of both the governor and rector of 11gDefense i

] the lieutenant governor shall be chairmanjand in the event of the l

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absence of all three, such person as is ' designated by the governor shall serve as chairman.

SEC ICH 4. The governor shall have general direction and control  !

of the civil defense agencyj and shall be responsible for carrying out j

, the provisions of this act and may assume direct operational centrol

. .- l i

over any or all parts of the civil defense functions within the co=-

conwealth; he may at the request of the director employ such tech-I nical, clerical, stenographic or other personnel,and fix their com-. l pensation and may make such expenditures f vithin the appropriation

' therefor or from other funds =ade available to him for the purposes j of civil defense or.l to deal with d'9 aster or threatened disaster

• i should it occur, as may be necessary to carry out the purposes of this acc. He may co-operate with the edera) govern =ent, and with i 2

- other states and private agencies in all matters pertaining to the civil defer.se of the commonwealth an'i the dation, cay propose a co= '

I prehensive plan and program for the civil detense of the commonwealth, j

and in accordance with said plan and program may institute training and public information programs and take all other preparatory steps, ll t

{ ' '

including the partial or full mobilization of civil defense organiza-l!

].

tions inJdvance of actual disaster as he,may deem necessary. He may 4

any administrative j

- =ake studies and surveys, cay delegate3 authority vested in him under i  %

this act and may appoint, in co-operation with local authcrities,  ;

{- metropolitan area directors.

f to ascertain the capabilities of the, commonwealth for civil. defense l l

. . . and. to plan 'for the cost efficient emergency uses thereof I

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!] SEC 5 Because of the existing possibility of the I occurrence of disasters of unprecedented size and destructiveness  :

$ resulting from enemy attack, sabotage or other hostile action, in l 1 '

order to insure that the preparations of the commonwealth will be  !

adequate to dcal with such disasters, and generally to provide for .

the common defense and to protect the public peace, health, security .

and safety; and to preserve the lives and property of the people of the commonwealth 2 f J . ,

Cfandwhen'h'econgressofthelUnitedStatesshall i t

)

1 declare war, or if and when'the President of the United States shall  ;

i by proclamstion.,or otherwise inform the governor that the peace and '

security of the commonwealth are endangered by belligerent acts of l i

I any enemy of the United States or of the comme.nwealth or by the i i

imminent threat thereof, the governor may,,with the advice and consent j of the council, issue a proclamation or proclamations setting forth l l

a state of. emergency. {

j (a) Whenever the governor has proc 1. aimed this existence of -

such a s. ate of emergency he may employ every agency and all members of every department and division of the gosernment of the (.ommonwealth to' protect the lives and property of its citizens and to enforce the l law. l 1 Any member of any such department or division so employed shall '

be entitled to the protection of existing applicable provisions of I law relatita to any type of service of the commonwealth as well as I

_ the protecticn afforded by this act.

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-(b) After such proclamation has been made, the governor may, in the event of disaster or shortage making such action necessary for the protection of the public ?and with the approval of the council, take possessic h '

i l' any land or building, machinery or equipment; I f any horses, vehicles, motor vehicles, aircraft, ships, boats or any other means of conveyance, rolling stock of ,

I steam, deise

- electric railroads or of street railways;4

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.ffanycattle,poultryand'anyprovisionsformam

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2 or beast, and any fuel, gasoline or other means of propulsion whiEh maybenecessary}orconvenientfortheuseofthemilitaryornaval' forces of the commonwealth or of the United States, or for the

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I better protection or welfare of the commonwealth or its inhabitants as intended under this act. He may use and employ'all property.of t

whichpossessionistaken,for4.achtimesandinsuchcanner!ashe shall deem for the interests of the commonwealth or its inhabitants, t and may in particular, when in his opinion the public exigency so requires, selljor, when conditions so warrant, distribute gratuitous-ly to or among any or all of the inhabitants of the commonwealth l ,-

anythingtakenunderclause(3)ofthisparagraph. He shall, with the L ,

approval of the council, award reasonable compensation to the owners I of the property which he may take under the provisions of this l r

section, and for its use, av.d for any injury thereto or destruction l thereof caused by such use.

I l

(c}Anyownerof'propertyofwhichpossessionhasbeentaken f

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i under paragraph (b) to whom no award has been made, or who is dis-satisfied with the atount awarded him by the governor, with the s

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I approvalofthc\ council,ascompensation,mayfileapetitionin the superior court, in the county in which he lives or has a l 4

i usual plitco of business, or in the county of Suffolk, to have the i I amount to which he is entitled by way of damages determined. The i 4

petitioner and the commonwealth shall severally have the right to ,

1 have such damages assessed by a jury,upon j making claim, in such a manner as may be provided, within one year after the date when l 1

possession of the property was taken I under paragraph.(b))except -

l that if the owner of the property is in the military-service of -

3

~the United States at the time of the ta' king, it shall be brought within one year after his discharge from the said military service.

(d) Any owner of property of which possession has been taken under this act, to whom no award has been made, or'who is dis-satisfiedwiththeamountawardedhimascompensaticItbythe j governor, with the approval of the ceuncil, may have his damages i assessed under chapter seventy-nine of the General Laws, instead '

(

i of proceeding under the provisions of this act. If any such taking, in aself, constitutes an appropriation of property to the public use, compensation may be recovered therefor under chapter sevnnty-nine of the General Laws from the body politic, or corporate,

l. '

appropriating such property. ,

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3. .

i SEC N 6. The governor shall have the power and authority to co-operate with the federal authorities and with the governors j ,

of other states in matters pertaining to the coumon defense or to

} and .riaval forces ^

the . common.. welfare, and also so to co-operate with the militaryAof '

I of the Uiited l States and 3 the other states, and to take any measures ammunseau __ -

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)

I which he may deem \ proper to carcy into effect any request of 1

the resident of the United States for action looking to the

,7' i .4; l 4' national defense or to the public safety.

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J SECTION 7. During the effective period of so much of this

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i

/J act as is ontingent c/ upon the preliminary declaration of a state I

j of emergency as hereinbefore set forth, the governor in addition l

! to any other authority vested in him by law, shall have and may exercise any and all authority over persons and property /necessary -

i __

cc expedient for meeting said state of e=ergency, which the gen'eral court in the exercise of its constitutional authority =ay confer. )

j upon him as supreme executive magistrate of the commonwealth and -

1 con =ander-in-chief of the military forces thereof, and specifically,l s klY havh Y mdy $xe[c[0e"sucY Nt Nri[y#r[ N [Ve ko [Qi["or" dll l .

a i

of the following: -

! (/a) Health or safety of inmates ofpall institutionsf~) J l

(bpaintenance, extension orinterhnnectionofservices

)

of public utility or public5 service companies, including public' l utility services owned or operated by the commonwealth or any

! politicalsubdivisionthereoff

) -

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,, (c} Policing,protectionorpreservationofallproperty, j public or private, by the owner or person in control thereof, or f otherwis

]

4 (n)d llanufac.ture, sale,_ possession,

--- -- ~ - ....-...._ __ _

use or ownarship _ _/

of/- l 7

( l ireworks or expolosives, or articles in siculation

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peans or devices of co==unication other than those exclusivelyregulatedbyfederalauthorities;) j

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3]i tTcles or objic~tT(i'n~dlbg birds and animals) capable of use for the giving of aid or information to the' enemy j or for the destruction of life or property).

% Transportation or travel on Sundays or weekdays by air- [

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l craft, watercraft, vehicle or otherwise, including the use of registration platas, signs or markers thereo ,

(f}) abor,businessorworkonSundaysorlegalholiday Assemblages, parades or pedestrian travel, in order to protect the physical safety of persons or property (pPublicrecordsandtheinspectionthereof  ;

Regulation of the business of insurance and protection of the interests of holders of insurance policies and. con + cuts and l J ._

c of beneficiaries thereunder and of the interest of the public in connecticn therewit j ( Vocational or pther educational facilities supported in l whole or in part by public funds, in order to extend the, benefits _,

a .i. i .

3 or availability thereo ;# -

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The suspension of the operation of-eny statute, rule. or

! reCulation which affects the employment of pers~ons within the '

i -

l conconwealth when, and at such times as, such suspension becomes

! necessary in the opinion'of the doverne' to remove any interference, I I

1 delay or obstruction in connection with the production, processing i ,or transportation of materials which are related to the prosecution -

J .. ,

! of war or which are necessary because of the existence of a state T of e=ergency; l 3 i

4

. ~ . _ . _ . _ _ _ _ _ _ . . _ _ . - . _ _ _ , _ _ _ _ _ _ _ _ _ _ - - _

. O

($) Regulation of the' manner and method of purchasing or contracting for supplies, equipment or other property or personal k

or other services, and of contracting for or carrying out public works, for the commonwealth or any of its agencies or political

subdivisions E (gReceipt, h

mdling or allocation of money, supplies,

- equipment or material granted, loaned or allocated by the federal l .

government to the commohwealth or any of its agencies or political i subdivisionsk p _ (p Protection of depositors in banks, and maintenance of thebaIbingstructureofthecommonwealthh ,

o

(/) Variance of the terms and conditions of licenses, permits l or certificates of registration issued by the commonhealth or any' of its agencies or political subdivisions

]

(p) Regulating the sale of articles of food and household article 1

j (q) Modification or variation in the classifications estab-

)

lished under sections forty-five to f-if ty, inclusive, of chapter l

) thirty of the Genreal Laws, as amended, and sections forty-eight j to fif ty-six, inclusive, of chapter thirty-five of the General jj Laws, as amended. l

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g (g,k JECTJON 8. The governor may exercise any power, authority l

/

f /4 or discretion conferred on him by any provision of this act pertain-ing to such section as requires a preliminary declaration of a state of emergency by the issuance or promulgation of executive orders or b

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l 1

general regulations, or through crSh department or agency of  ;

i

. i j the commonwealth y including the civi. defense agency, or of any l political subdivision thereof, or such person as he may direct l by a writing signed by him and filed in the office of the state l 1 -

I

se c re tary. @mhter Any department, agency or person so directed i lI shall act in conformity with any regulations prescribed by the governor for its or his conduct.  !

i Whoever violates any provision of any such executive order l or general regulation issued or promulgated by the governor, fo.r I

the violation of which no'other penalty is provided by inw, shall l be punished by imprisonmNnt for not more than one year, or by a fine of not more than five hundred. dollars, or both. , ]

l SEC ON 9 Notwithstanding the provisions of chapter thirty-one of the G,neral Laws, or any other provision of law affecting. civil service, and the rules anbesgel&Wuos made j t

thereunder, the director of civil service, supported by a majority j vote of the civil service commission mayt[ '

• l

! (apApproveorextendprovisionalappointmentswithout time limitations unti3 lists can be established or until appoint- l ments can be made from eligible lists.,

. ./ (/b) Extend temporary appointments which are made from -

l p

', - civil service lists beyond the life of the list.  ;

I .

(c Allow temporary transfersjwithout regard to classifi-j F

. cation, eyond a period of six months.

( Restrict leaves of absence except for entrance into e ,

e

/1

/ u the armed forces of the United States, for illness, and for such I other reason as said director deems to be in the public interest.

(ej Exclude from eligible lists the names of' individuals ,

~

who refuse to accept positions which they have previously signi- l 1 .

fled a willingness to accept.

] '

( Restore to the eligible lists the names of persons so l

) removed.

1 (g) Excluds from the operation of the civil service laws

- .. i and rules and regulations any of the positions or employments in '

l 1 temporary agencies,. boards or other governmental units of the ,

1

l commonwealth or of its political subdivisions, the existence and  ;

powern of which agencies, boards or other units are limited to a period terminating not lat than one year after the termination i

i of any future declaration of a state of emergency, or any lescer -

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period. .  !

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Any appointment or transfer made under this section shall l

. 4 be effective only for the period during which this section is to l l

be operative. i SECTION 10. During any blackout or during the period '!

& t between the air raid warning and the following "all clear" signal', {

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regular, special and rcserve members of the police and fire forces j of the commonwealth or of its political subdivisions, and, members f of the state guard and the armed forces of the ' United States, while f l

in uniform, may enter upon private property for the purpose of >

[

, enforcing blackout '

or air,-raid precaution rules,' regulatioris or <

i orders issued by or under authority of the governor. Such members may at any time enter upon private property in compliance with the l 4 .written order.of the governor, for the sole purpose of enforcing the

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. laws, rules, regulations, by-laws or ordinances specifically  ;

set forth by the governor in such orders; providedjthat nothing

-1'!binthissectionshallbeconstruedordeemedtoprohibit,any d N. gentry uy n private property otherwise authorized by law.

Persons appointed to the auxiliary police force

/ SECTION 11.

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/ in a city or town shall exercise or perform such of the powers or duties of police officers as may be prescribed by the appoint-ing authority; provided, that said powers or [ duties shall not be exercised or perf'ormed by them except while they are on active 1 dutyanddisplaying'anbuthorizedbadgeorotherinsigniaafter being called to such uty by the head of the police force of such city or town to meet a situation which, in his oninion, cannot be adequately handled by the regular police force and by the raserve police force,'if any, of such city or town. Auxiliar/'

police in towns, but not in cities, may be authorized by the appointing anthority to exercise the powers conferred by section ten of this act upon members of regular or reserve pdlice forces of said towns.

SEC ON 12. No person shall be civilly liable for any act done in pursuance of any provision of this act or of any order or regulation issued or promulgated thereunder, notwithstanding that such provision, order or regulation shall subsequently be determined to be invalid or unconstitutional.

No city or town shall be liable for any damage sustained to p_erson or property as the result of an authorized blackout.

SECT ON 13. Each political subdivision of the commonwealth

, is hereby "authorized and directed to establish a local organization for civil defense in accordance with the state civil defense plan a \

and program.

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Each local organization for civil defense chall have a direc'or, l

! whogshall in the case of a city,be appointed by the mayor,or in I '

a city having the Plan E form of government by the city canager, and in towns shall be appointed by the selectmenjor in towns I

having a town canager by the manager, and who shall have direct i

j responsibility for the organization, administration and operation  ;

of such local organization for civilidef'ense, subject to the Each local direction and control of such appointing authority. < ,

j organization for civil defense shall perform civil defense .

i functions within the territorial limits of the political sub-i '

division within which it is organized, and, in addition, shall l conduct such functions outside of such territorial limits as ..

f may be, required pursuant to the provisions of section seven.off j this act. f, In carrying out the provisions of this act, each political l l (

1 '

l subdivision in which hny disaster, as described in section one, 4

occurs,shallhavethepowerftoenterintocontractsandincuri r i obligations necessary to combat such disaster, protecting the health and safety of persons and property, and providing i emergency assistance to the victims of such disaster. Each  !

. l f

j political subdivision is authorized to exercise the poners vested j

. l under this section in the light of the exigencies of the l

extreme emergency situation, without regard to time-cens'uming l I

1 procedures and formalities prescribed by law, excepting mandatory ]

l. constitutional require =ents pertaining to the perforcance of l l

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public work, entering into contracts, th,e incurring of obli- l

) \t I gations, the ecployment of te=porary workers, the rental of i

e(  ;

i equipment, the purchase of supplies and catorials, the levying i

)

oftaxesandtheapproph'ationandexpenditureofpublicfunds.

l f/ TIf 14 The director of each local organization k

for civil defense may, in collaboration with other public and  !

i private agencies within the com=onwealth, develop or cause to  ;

\

l be developed, mutual aid arrate=ents for reciprocal civil -

1 defense aid and assistance in case of disaster too great to be

] dealt with unassisted. Such arrange =ents shall be consistent l i

1 with the state civil defense plan and program, and in time of l emergency it shall be the duty of each local organization for i

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l civil defense to render assistance in accordance with the l l provisions of such mutual aid arrangecents. The director of 1 each local organization for civil defense may, subject to the l 1

j approval of the governor, enter into cutual aid arrange =ents  !

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with civil' defense agencies or organizations in other states

, for reciprocal civil defense aid and assistance in case of  !

l disaster too great to be dealt with unassisted.

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SE N 15 Neither the commonwealth nor any political sub-ot'ar agancies, nor, except in cases of l$

division thereof,! l I wilful misconduct, who t,va s, employees or representatives of any 4

of them, engaged in any civil defense activities, while complyirs with

! or atte=pting to co ply with this act or any other rule or regulation l

! promulgated pursuant to the provisions of this act, shall be liable for .

the death of or any injury to persons, or da= age to property, as a i

result of such activity. The provisions of this section chall not- -

affect the right of any person to receive benefits to which he would I ptherwise be entitled under this act, or under the rkmen's compensa-tion law, or under any pension law, nor the right of any such person to receive any benefits or compensation under any act of congrees.

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SECT 16 . ' * ,

Each political subdivisicyhn11 have the power

to make appropriatione in the manner provided by law for meking ,

l appropriations.for the ordinary expenses of such political subdivision, j l '

j for the payment of expenses of its loesi organization for civil  :

1

defense.

Whenever the federal government or any agency or of ficer thereof, )

4 or any person, firm or corporatien, shall offer to the commonwealthj

]

s or to any political subdivision the reof, services, equipment, supplie s, j materials or funds by way of gif t, grant or loan, for purposes of ,

I j civil defense, the co::enwealth, acting throuch the governor, or such political subdivielon, acting through its gov ernirs body, may accept j s I such offer, end upon acceptance ) the governor or. governing body I 7

of euch political subdivision may authorite any of ficer of the S commonwealth, or of the political eubdivision, as the case may be,

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V /V l o\ to receive euch services, equipment , supplies, materials or .

fund on behalf of the commonwealth, or euch political subdivision, 5 and subject to the terms of the of fer and the rules and regulations, j if any, of the agency making the offer. f i

SEC IO){ 17. In carrying out the provisions of this act, j

the governor and the executive officers, or governing bodies of the l l , y political subdivisions of the co=monwealth, are directed to utilize 3 the services, equipment, suppliep/andfacilitiesofexisting i , departments, of fices and agencie s of the commonwealth,,and of the ,  !

I j  : political subdivisions thereof, to the maxicum extent practicable'  ;

I' and the officers and personnel of all such department s, of fices i .

1 and agencies of the commonwealtn, and of the political subdivisions l j

thereof, to the maximum extent practicable} and the of ficers and.

l

)

personnel of all such departments, of fices and agencies are  !

i

) directed to co perate with and extend such services and facilities to the governor and to the civil def ense organizations of the ,.

cocconwealth upon request.

any activity  ;

The governor may assign to a state agency

} '1 concerned with disaster preparedness and relief of a nature related I

I j l to the existing powers and duties of such agency, and it, chall i j

i thereupon become the duty of such agency to undertake and carry l

< out such activity on behal't of the commonwealth.

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SEC 1 18. No organization for civil defense establiuhed under the authority of this act shall participate in any form of I

i political activity, nor shall it be employed directly or indirectly for political purposes, r, L7

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y /tj SECTION 19. No person shall be employed or sesociated in  :

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any capanty in any civil defense organization established under this j

j act who advocates, or has advocated, a change by force or violence in the constitutional for= of the government of the United States, or in l

this commonwealth, or the overthrow of any government in the United -

l States by force or violence, or who has been convicted of, er is i

l

- under indictment or , informe, tion; charging' any subversive not against ,

the United States. Each person who is appointed to serve in an  ;

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organization for civil def ense shall, before entering upon his duties,'

take an oath, in writing, before a person authorized to administer ..

oaths in this commonwealth, which oath shall be substantially as l7 follows: - l

• I,' 0* I. hn J'/ ,

' do solemnly swear .(or affirm) that I will support and. def end the constitution of the United States and the constitution of the  ;

f -.  !

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Commonwealth of Massachusetts against all enemies, foreign and I i

! , domestic; that I will bear true faith arid allegiac.co to the same; i  !

that I take this obligation freely, without any mental reservation  ;

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cr purpose ,of evasion; and that I will well and faithfully discharge i .

j the duties on which I am about to enter. j ]

" And I do f 'rther ewear (or af firm) that I do not advocate,  !

nor am I a member of any political party or organization that advocates, the overthrow of the government of the United States or l i

of this commonwealth by force or violence; and that during such time 4

I as I am a member of the (name of civil .tefense organization), I will  !

not advocate nor beco=e a member of any political party or organiza- l l'

l l

tion, that advocates the overthrow of the government of the United  ;

j States or of this commonwealth by force or violence." Q ,

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SECTION 20 If any provision of this act or the application thereof to any person or circumstance is held invalid, such in-validity shall not affect other provisions or application of the act which cen be given effect without the invalid provision or opplication; j and to this end the provisions of this act are declared to be severable, i

< l SECT p 1. It shall be the duty of the members of, and of l

each and every officer, agent and employee of every political sub- ,

i division of this commonwealth and of each member of all other govern- ,

mental bodies, agencies and authoritie s 'of any nature whatsoever

~

fully to co-operate with the governor and the director of civil <

l defense in all matters affecting civil defense. The governor is j nuthorized to make, amend and rescind orders, rules and regulations

- pertaining to civil defense, and it shall be unlawful for any I f

muni cipality or other subdivialon or any other gove'rnmental agency l

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ti of this com .onwealth to adopt any rule or reguls tion or to enforce  ;

any such rule or regulation that may be at variance with any such (

order, rule or regulation established by the governor. Each such i

organization shall have available :for inspection at it s of fice all l l

orders, rules and regulations made by the[overnor, or under his authority. In the event of a dispute on the question of whether or not any such rule or regulation is at variance with an order, rule or regulaticn established by the governor under this act, the '{

determination of the governor chall control.

1 SEC N 22. For the purpose of carrying out the provisiens 1 g of this act, the civil defense agency may, expend such sums as may j hereaf ter be appropriated therefor.

SECT OH 23. This act shall be come inoperative on July fir st, f j

nineteen hu/ ndred and fifty-two, r i

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