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COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
Suiiolk, No. SUCV2011-3756
SAC-11661
NESTO MONELL, JONATHAN GIBBON, RACriAEL BUTCHER,
BENJAMIN SMITH, LINDSEY" BURNS, and ANN McGOVERN, on
behalf of themselves and others sirr.ilarly situated,
Plaintiffs - Appellants,
V.
BOSTON PADS, LLC, JACOB REALTY, LAC, NEXTGEN REALTY,
INC . , RENTi~IYUNIT . CONI, INC . , D~NI~TRIOS SALPOGLOU, and
YUAN HUANG,
Defendants - Appellees.
B~ZIEF OF THE MASSACHUSETTS EMPLOYMENT LAWYERSASSOCIATION & THE MASSF,CHUSETTS Bt7II,DING TRADES
COUNCIL, AFL-CIO, AMICI CURIAE
Ian O. Russell (BBO #673387.)PYLE ROME EHRENBERG ~C
2 Liberty Square, 10th doorBoston, MA 02109
(617) 367-7200
Nicole Horberg Decter (BBO #658268)SEGAL ROITMAN, LLP
111 Devonshire Street, 5th 'FloorBoston, MA 02109(617) 742-0208
TABLE OF CONTENTS
I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. ...1
II. STATEMENT OF THE INTEREST OF THE AMICI. .........1
III. STATEMENT OF THE CASE . ..........................3
III. ARGUMENT . .......................................4
A. THE INDEPENDENT CONTRACTOR STATUTE
EMBODIES VITAL STATE INTERESTS AND
MUST BE BROADLY CONSTRUED TO
EFFECTUATE THOSE INTERESTS . ................4
1. Misclassification of employees harms
employees and the Commonwealth. .......4
2. Consistent with its language and
purpose the Independent Contractor
Statute must be construed broadly. ....6
B. THE PLAIN LANGUAGE OF M.G.L. c. 112,
~ 87RR, THE REAL ESTATE LICENSING STATUTE,
DOES NOT CREATE AN EXCEPTION TO
M.G.L. c. 149, § 148B, THE
INDEPENDENT CONTRACTOR STATUTE. ...........12
C. THE LEGISLATIVE HISTORY OF THE
RELEVANT STATUTES CONFIRMS THAT
REAL ESTATE AGENTS ARE NOT EXEMPT
FROM M.G.L. c. 149, ~ 148B . ...............15
1. The only attempt to exclude
real estate agents from coverage
under ~ 148B failed . .................15
2. A worker may be an employee
for some purposes and not othersand when the Legislature has
exempted workers from coverage by
laws intended to protect employees,it has done so explicitly. ...........18
3. The 2010 amendment to M.G.L. c. 112,
~ 87RR, merely acknowledged that
real estate agents - like other
types of employees - may be paidon a commission basis . ...............21
i
D. HYPOTHETICAL CONCERNS ABOUT COMPLYING
WITH THE LAW IS NOT A VALID REASON
FOR EXEMPTING THE REAL ESTATE INDUSTRY
FROM M.G.L. c. 149, ~ 148B . ...............22
E. BOSTON PADS IS NOT A TYPICAL REAL ESTATE
COMPANY. ..................................25
CONCLUSION ...•
.....................................29
CERTIFICATE OF SERVICE ..............................31
CERTIFICATE OF COMPLIANCE ...........................32
ii
TABLE OF AUTHORITIES
Cases
Awuah v. Coverall North America, Inc. ,
460 Mass. 484 (2011) ...............................24
.....Cook v. Patient Edu, LLC,465 Mass. 548 (2013) ........ ......................10
Depianti v. Jan-Pro Franchising Int'1, Inc.,465 Mass. 607 (2013) ...........................passim
Donovan v. Agnew,712 F.2d 1509 (lst Cir. 1983) ......................18
Duracraft Corp. v. Holmes Products Corp.,427 Mass. 156 (1998) ...............................16
Lutl2er v. Z. Wilson, Inc. ,528 F. Supp. 1166 (S.D. Ohio 1981) .................20
Perdomo v. Ask 4 Realty & Mgmt. , Inc. ,298 F. App'x 820 (11th Cir. 2008) ..................20
Smith v. Winter Place, LLC,447 Mass. 363 (2006) ................................9
Somers v. Converged Access, Inc. ,454 Mass. 582 (2009) .............................5, 9
Taylor v. Eastern Connection Operating, Inc.,465 Mass. 191 (2013) ................................6
Weems v. Citigroup Inc.,453 Mass. 147 (2009) ...............................22
Statutes
26 U.S.C. ~ 3121 ....................................18
29 U.S.C. ~ 201 .....................................18
29 U.S.C. § 203 .....................................18
M.G.L. c. 112, ~ 87RR .......................12, 13, 21
M.G.L. c. 149, ~ 148 ........................18, 21, 25
M.G.L. c. 149, § 148B ......................5, 6, 8, 22
M.G.L. c. 149, ~ 150 ................................22
M.G.L. c. 149, ~ 150A ...............................23
iii
M.G.L. c. 149, §~ 47 ................................23
M.G.L. c. 151A, ~ 6 .................................18
M.G.L. C. 151A~ ~ 6(P) ... ..........................19
M.G.L. c. 152, ~ 1 ..................................18
M.G.L. c. 152, ~ 1(4) ............................ 19
Other Authorities
An Advisory from the Attorney General's Fair Labor
Division on M.G.L. c. 149, s 148B, 2008/1........4, 8 ',
Regulations '
26 C.F.R. § 31.3121 .................................18
455 CMR ~ 2.01 ......................................25
iv
I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW.
Amici adopt the statement of the issues presented
by Plaintiffs-Appellants.
II. STATEMENT OF THE INTEREST OF THE AMICI.
The Massachusetts Employment Lawyers Association
("MELA") is a voluntary membership organization of over
100 lawyers who regularly represent employees in labor,
employment, and civil rights disputes in Massachusetts.
MELA is an affiliate of the National Employment Lawyers
Association (~~NELA"), a membership organization of over
3,000 lawyers who regularly represent employees in such
disputes. NELA is one of the largest organizations in
the United States whose members litigate and counsel
individuals, employees, and applicants with claims
arising out of the workplace.
As part of its advocacy efforts, MELA has filed
numerous amicus curiae briefs before this Court, singly
or jointly with other amici. The interest of MELA in
this case is that of protecting the rights of its
members' clients, by ensuring that M.G.L. c. 149, ~
148B's goals of preventing employee misclassification
and wage theft are fully realized. Amici have
frequently dealt with employers who rely upon the
misclassification of workers as independent contractors
1
as a means of avoiding application of the
Commonwealth's wage laws. Often, the improper acts of
these employers include attempting to impose the costs
and risks of running a business upon their workers by
charging workers improper fees and making improper
deductions from their wages. Amici believe that it is
vitally important that M.G.L. c. 149, ~ 148 continue to
be applied as it was drafted and thus that it be
construed to cover all industries in the Commonwealth.
The Massachusetts Building Trades Council, AFL-CIO
("N.~TC"), is a statewide coalition consisting of 74
local labor unions who represent over 75,000 men and
women employed in Massachusetts in the construction
industry. The MBTC's affiliated local unions represent
workers in every facet of private and public sector
construction work, including but not limited to,
electricians, laborers, elevator constructors,
carpenters, drivers, masons, plumbers, pipefitters, and
painters, sprinkler fitters and teamsters. The MBTC
has, on a routine basis, submitted amicus briefs to
this Court where issues critical to workers' economic
security, health, and safety within the Commonwealth.
This case is of exceptional. importance to the MBTC and
its affiliates, because stringent enforcement of the
2
Independent Contractor, Overtime., and Non-payment of
Wages statutes protect all workers' economic security
and physical safety, maintain a level playing field for
law-abiding companies, and ensure that the Commonwealth
has appropriate enforcement tools to garner compliance
with its laws. Narrowing the scope of the Independent
Contractor Statute to exclude categories of workers -
without any implicit, much less explicit, statutory
exclusion (as the Defendants-Appellees and their amici
advocate) - strains credulity. More importantly, such
an interpretation could compromise the vital
protections guaranteed under the Statute, not only to
real estate agents, but to any category of workers that
an employer elected to misclassify for the purpose of
denying the payment of compensation due under the
Commonwealth's laws.
III. STATEMENT OF THE CASE.
Amici adopt the Statement of the Case presented
by Plaintiffs-Appellants, including the Statement of
Prior Proceedings and the Statement of Facts.
3
III . ARGUMENT .
A. THE INDEPENDENT CONTRACTOR STATUTE EMBODIESVITAL STATE INTERESTS AND MUST BE BROADLYCONSTRUED TO EFFECTUATE THOSE INTERESTS.
1. Misclassification of employees harms
employees and... the..... Commonwealth...
The need for proper classification of individuals
in the workplace has been recognized at all levels of
government in the Commonwealth. The Attorney General
has stated that:
Entities that misclassify individuals are in manycases committing insurance fraud and depriveindividuals of the many protections and benefits,both public and private, that employees enjoy.Misclassified individuals are often left withoutunemployment insurance and workers' compensationbenefits. In addition, misclassified individualsdo not have access to employer-provided healthcare and may be paid reduced wages or cash aswage payments.
An Advisory from the Attorney General, Amendments to
Massachusetts Independent Contractor Law, Advisory
2008/1 (Add. 1).l Similarly, Governor Deval Patrick,
in creating a Joint Task Force to address employee
misclassification, stated .that:
[T]he practice of employee misclassification: (1)exploits vulnerable workers and deprives them of..legal benefits and protections; (2) givesunlawful businesses an unfair competitiveadvantage over lawful businesses by illegally
1 References to the Addendum to this brief are cited as"Add. [page number]." -
0
driving down violators' taxes, wages, and otheroverhead costs; (3) defrauds the government ofsubstantial tax revenues; and (4) harms consumerswho suffer at the hands of unlicensed businessesthat fail to maintain minimum levels of skillsand knowledge.
Executive Order No. 499 (Add. 8-9).
The Legislature has attempted to address these
concerns by passing legislation aimed at .curbing
misclassification. One such piece of legislation is
M.G.L. c. 149, § 148B, the Independent Contractor
Statute. This statute, inter a1ia, establishes a test
for determining whether a worker is an "employee" for
purposes of the application of chapter 149, which
includes the minimum wage and overtime laws, and
allows for a suit to be brought against an employer
for failing to properly classify its workers.
This Court has recognized that one of the
"legislative purposes] behind the independent
contractor statute is to protect employees from being
deprived of the benefits enjoyed by employees through
their misclassification as independent contractors."
Somers v. Converged Access, Inc., 454 Mass. 582, 59.2
(2009) ; see also Depianti v, ~7an-Pro Franchising
Int'1, Inc., 465 Mass. 607,. 620 (2013) ("The purpose
of the independent contractor statute is `to protect
workers by classifying them as employees, and thereby
grant them the benefits and rights of employment,
where the circumstances indicate that they are, in
fact, employees'."), quoting Taylor v. Eastern
Connection Operating, Inc., 465 Mass. 191, 198 (2013).
2. Consistent with its language and
purpose the Independent Contractor
Statute must be construed broadly.
In "light of the statute's broad remedial
purpose," this Court has held that it would be an
"error" to read a limitation into the statute where
the statutory language does not require it. Depianti,
465 Mass. at 621. The statute explicitly applies to
individuals "performing any service." M.G.L. c. 149,
~ 148B (emphasis added). Nothing in the text of the
statute limits its application to certain industries
operating in the Commonwealth.
However, the Superior Court, in ruling that real
estate agents are exempt from coverage under ~ 148B,
wrongly created a limitation that the statutory
language does not require. In their amicus brief, the
Massachusetts Association of Realtors and the Greater
Boston Real Estate Board ("MAR Amici") likewise urge
the Court to adopt an exceedingly narrow
interpretation of the Independent Contractor Statute,
C~
i one that is not supported by the statute's language or
its purpose. They argue that the statute was
originally intended to govern the construction
industry and that, therefore, "the Court should not
presume that the legislature intended to disrupt the
settled expectations of those in the real estate
industry." MAR Amicus Br. at 20. As discussed in
more detail below, see infra at 15-17, this would not
be the first time that the real estate industry has
tried - and failed - to exclude itself from the
Independent Contractor Statute. In any event, the
language, purpose, and legislative history of the
Statute all require the Court to reject Defendants-
Appellees' and their amici's attempts to artificially
narrow its scope.
The plain language of the Independent Contractor
Statute applies to all industries. While the MAR
Amici cite the title of the chapter of the session
laws through which the Independent Contractor Statute
was enacted as evidence that it was intended to be
limited to the public construction sector, MAR Amicus
Br. at 21, the title of th`e Independent Contractor
Statute itself is not limited to any particular
industry; the statute is entitled: "Persons performing
service not authorized under this chapter deemed
employees; exception." M.G.L. c. 149, ~ 148B. The
language in the body of the statute is similarly
broad. It applies to "any service" and its remedies,.
apply against "(w]hoever fails to properly classify an
individual as an employee Id., (a), (d)
(emphasis added).
A broad interpretation of the Independent
Contractor Statute is similarly supported by its
purpose, as this Court has enunciated in Somers and
Depianti, discussed above. The Attorney General's
Office has similarly emphasized the importance of a
broad application of the statute, stating that "[t]he
need for proper classification of individuals in the
workplace is of paramount importance to the
Commonwealth." An Advisory from the Attorney
General's Fair Labor Division on M.G.L. c. 149, ~
148B, 2008/1 (Add. 1).
Notably, the Attorney General made clear in its
Advisory that the statute is not limited to the public
construction industry, explaining: "The 2004
amendment was part of legislation making broad changes
to.the laws governing the public construction
industry. However, the Law, including the 2004
'3
amendment, applies more broadly to a wide range of
industries." Id. (emphasis added). The Attorney
General recognizes no exemption from the statute for
the real estate industry - a significant point, given
that the Attorney General's interpretation of ~ 148B
is entitled to substantial deference. See Smith v.
Winter Place, LLC, 447 Mass. 363, 368 (2006).
The fact that the real estate industry
customarily classifies agents as independent
contractors is also not a basis for exempting that
industry from the Independent Contractor Statute. All
industries are affected when a new statute governing
the treatment of workers is enacted. If those
industries have a custom of violating the law, then
naturally they will be more greatly affected.
However, that is no reason not to enforce the statute
against them. To the contrary, to effectuate the
public policy underlying the Independent Contractor
Statute — "to protect employees from being deprived of
the benefits enjoyed by employees through their
misclassification as independent contractors," Somers,
454 Mass. at 592 — courts must apply the statute to
industries that have traditionally violated it.
~~
The MAR Amici's argument that the existence of
criminal remedies in the statute "further supports the
conclusion that the statute should not be interpreted
to apply to real estate professionals," MAR Amici Br.
at 27, must fail for two reasons. First, this is not
a criminal case advanced by the Attorney General; it
is a civil case brought by employees. The private
civil action and the criminal enforcement provisions
are separate parts of the wage statutes. Depianti,
465 Mass. at 612 ("The Attorney General's right to
enforce G.L. c. 149 and the right of private citizens
to enforce provisions of that chapter represent
parallel and distinct enforcement mechanisms.").
Second, where, as here, there is no ambiguity in
either the language or intent of the statute, there is
no basis for construing it to exclude an entire
industry despite the absence of any statutory language
suggesting such an exclusion. See Cook v. Patient
Edu, LLC, 465 Mass. 548, 555-56 (2013). This is true
whether the statute contains criminal penalties or
not . Id. z
2 Moreover, the fact that common la.w vicariousliability principles may apply to the broker-agentrelationship does not mean, as the MAR Amici suggest,that it would be impossible for real estate companies
m
In order to protect all employees in the
Commonwealth from wage theft and other abuses arising
from misclassification, it is vitally important that
this Court not adopt a limitation to the application
of ~ 148B that is not required by the statutory
language. There is no indication that the Legislature
ever determined that wage theft through
misclassification does not occur in the real estate
industry or that businesses within that industry
should be immune from suits for recovery of lost
wages . 3
to comply with the requirements of the IndependentContractor Statute. The vicarious liability doctrineapplies in all sorts of non-employment contexts,including, for example, the franchisor-franchiseecontext, as this Court recognized in Depianti, 465Mass. at 616. There is simply no correlation betweenthis doctrine, which applies in actions brought byconsumers or other third parties, and the IndependentContractor Statute, which applies to determine whetheran entity must comply with the wage laws.
3 This is true even where a real estate agent is paidonly through commissions, which are, as explainedbelow, indisputably considered wages under the laws of
the Commonwealth.
11
B. THE PLAIN LANGUAGE OF M.G.L. c. 112, ~ 87RR,
THE REAL ESTATE LICENSING STATUTE, DOES NOT
CREATE AN EXCEPTION TO M.G.L. c. 149, §
148B, THE INDEPENDENT CONTRACTOR STATUTE.
Real estate licensing is regulated by M.G.L. c.
1.12, ~ 87RR That.... statute provides ....that.....
A salesman may be affiliated with a brokereither as an employee or as an independentcontractor and may, by agreement be paid asan outside salesperson on a commission-onlybasis but shall be under such supervision ofsaid broker as to ensure compliance with thesection and said broker shall be responsiblewith the salesman for any violation ofsection eighty-seven AAA committed by saidsalesman.
M.G.L. c. 112, ~ 87RR. A plain reading of this
language establishes only: (1) that the Legislature
acknowledges that real estate agents have been
classified as both employees and independent
contractors within the real estate industry, (2) that
real estate agents may be paid on a commission-only
basis, and (3) that, regardless of whether a real
estate agent ~s classified as an employee or an
independent contractor, and regardless of whether a
real estate agent is paid on a commission basis, a
real estate agent must be under sufficient supervision
by a broker in order to ensure compliance with the
other obligations spelled out in ~ 87RR.
12
Nothing in the language of this licensing statute
creates an exemption from the Independent Contractor
Statute. On its face, the statutory language gives no
indication that it is intended to guarantee that a
broker be allowed to classify all real estate agents
as independent contractor for all purposes. Nor does
it indicate that it is intended to exempt real estate
agents from coverage under M.G.L. c. 149, ~ 148B.
Rather, it is intended solely to address the
requirement that a broker supervise an agent to ensure
compliance with the licensing requirements of the
statute, and mandates that, regardless of the manner
in which the real estate agent is classified, this
supervision will be provided.
In other words, a broker may classify a real
estate agent as either an employee or an independent
contractor, so long as the agent meets the applicable
tests for those classifications, "but" the agent must
still be subject to the statutorily required
supervision, regardless of how the agent is
classified. M.G.L. c. 112, ~ 87RR (emphasis added).
The use of the word "but" informs a broker that the
proper supervision must be provided, regardless of
whether the real estate agent is an employee or an
~~
independent contractor. Thus, a broker may not avoid
providing the required supervision merely by ',
classifying an agent as an independent contractor.
The Superior Court erroneously interpreted M.G.L.
c. 112, ~ 87RR, to guarantee that a real estate
business may, at its discretion, treat a real estate
agent as an independent contractor for all purposes. r
Indeed, the entire opinion is based upon the Superior
Court's conclusion that, under ~ 87RR, a real estate
business must be able to treat real estate agents as
independent contractors and that the Independent
Contractor Statute cannot apply to real estate agents.
Thus, the Superior Court held that ~ 87RR created an
exemption from coverage under ~ 148B for real estate
agents.
However, ~ 87RR does not address the issue of
whether a real estate agent is an independent
contractor or an employee for purposes of the payment
of wages - despite also acknowledging that real estate
agents can be "employee [s] or independent
contractor[s]." M.G.L. c. 112, ~ 87RR. Accordingly,
the question of whether a real estate agent is an
employee for wage purpose s. is determined in the same
way as it. is for any other employee, namely, by
14
applying the test established by ~ 148B. Because ~
87RR does not address the question of whether a real
estate agent is an employee for the purposes of the
payment of wages, it does not conflict with ~ 148B and
it does not create an exemption to that statute.
C. THE LEGISLATIVE HISTORY OF THE RELEVANT
STATUTES CONFIRMS THAT REAL ESTATE AGENTS
ARE NOT EXEMPT FROM M.G.L. c. 149, ~ 148B.
1.. The only attempt to exclude real estateagents from coverage under ~ 148Bfailed.
Had the Legislature intended to exempt the real
estate industry from the Independent Contractor
Statute through the real estate licensing statute, it
would have done so through the use of clear and
explicit language. Yet the real estate licensing
statute does not even mention §.148B. Indeed, the
only time that an attempt was made to explicitly
exempt real estate agents from coverage under M.G.L.
c. 149, ~ 148, the legislation was vetoed by the
Governor. The Legislature included the following
language in Section 8 of Chapter 304 of the Acts of
~~:
The second paragraph of section 87RR of
chapter 112 of the General Zaws is herebyamended by striking out the third sentence
and inserting in place thereof the following
sentence: Notwithstanding section 1488 of
15
Chapter 149, a salesmen or broker may beaffiliated with a broker either as anemployee or as independent contractor, asdetermined by their written agreement andcustomer work practices, but shall be undersuch supervision of the broker as willensure compliance with this section ...
(Add. 42)(emphasis added). However, Governor Patrick
vetoed this language. In his message to the
Legislature, he stated:
I am disapproving section 8 because it seeks
to exempt real estate sales persons and
brokers from the independent contractor
laws, G.L. c. 149, ~ 148B, recently enacted
to reduce employee misclassification and
abuse of workers' status. The section wouldallow real estate sales persons and brokers
to rely on written agreements to avoid theclassification rules for independent
contractors. The Secretary of Labor and
Workforce Development and I are working to
address employee misclassification in our
underground economy task force, and we are
concerned that this section is inconsistentwith that objective.
(Add. 47) .
This legislative history establishes that the
Legislature believed that real estate agents were
covered by ~ 148B and that an explicit amendment was
necessary to create an exemption.4 The Governor viewed
4 See Duracraft Corp. v. Holmes Products Corp., 427Mass. 156,, 163 (1998) ("Statutes ar.e to beinterpreted, not alone according to their simple,literal or strict verbal meaning, but in connectionwith their development, their progression through the
~~~
this amendment as creating an exemption and vetoed it
because he did not believe an exemption was good
policy. Had the 2008 amendment been enacted, it would
clearly have exempted real estate agents from coverage
under ~ 148B. However, the amendment did not become
law - the Legislature passed a different amendment
taking into account the Governor's comments.
Consequently, the exemption relied upon by the'
Superior Court and Defendants-Appellees simply does
not exist.
Accordingly, the legislative history regarding
this issue is clear. No specific exemption for real
estate agents from coverage under M.G.L. c. 149,
~ 148B, has ever existed. The one time that the
Legislature sought to adopt such an exemption, it was
vetoed because the Governor did not agree with the.
attempt "to exempt real estate sales persons and
brokers from the independent contractor laws, G.L. c.
149, ~ 148B." (Add. 47). No such exemption has been
become law.
legislative body, the history of the times, prior
legislation. ").
?_ 7
'' 2. A worker may be an employee for some.
purposes and not others and when the
Legislature. has exempted workers from
coverage by laws intended to protect
employees, it has done so explicitly.
The various statutes that protect emp,loye~es often
have their own definition, or test, that establishes
whether a worker is an "employee." For example, the
definition of employee is different under the wage -
laws, workers' compensation laws, and unemployment
laws. See M.G.L. c. 149, ~ 148; M.G.L, c. 152, ~ 1;
M.G.L. c. 151A, ~ 6. Similarly, the test for
determining whether someone is an employee for federal
income tax purposes is different than the test for
determining whether someone is an employee under the
federal Fair Labor Standards Act, 29 U.S.C. ~ 201, et
seq, Compare 26 U.S.C. ~ 3121(d)(2) (defining
"employee" status for federal tax purposes) and 26~
C.F.R. ~ 31.3121 (adopting test for determining if
worker is an "employee" for tax purposes), w.i.th 29
U.S.C. ~ 203 (defining "employee" under the FLSA) and
Donovan v. Agnew, 712 F.2d 1509, 1510-11 (1st Cir.
1983) (adopting "economic realities" test for
determining if worker is an employee under FLSA).
When a category of workers is specifically
excluded from coverage by one of these statutes, the
Legislature has made the exemption explicit.
Specifically, when it has exempted real estate agents
paid on a commission-only basis from coverage under
the workers' compensation laws and the unemployment
compensation laws, it has done so explicitly. See
M.G.L. c. 152, ~ 1(4) (defining "Employee", as "every
', person in the service of another under any contract of
hire, express or implied, oral or written, excepting ...
a salesperson affiliated with a real estate broker
pursuant to an agreement which specifically provides
for compensation only in the form of commissions
earned from the sale or rental of real property");
M.G.L. c. 151A, ~ 6(p) ("The term `employment' shall
not include [s]ervices performed by an
individual as a real estate broker or salesman if he
is licensed by the state as a real estate broker o.r
salesman, and if he is remunerated solely by way of
commission"}.
Accordingly, it is hardly dispositive that M.G.L.
c. 112, ~ 87RR acknowledges that, depending upon the
circumstances, a real estate agent may be an employee
or an independent contractor. Neither is it
dispositive, as Defendants-Appellees appear to argue,
that the United States Congress or the Legislature of
19
the Commonwealth have exempted real estate agents from
certain tax laws. Brief of Defendants-Appellees at
~~~
Notably, real estate agents are not specifically
exempt from coverage under the most important federal
law related to the payment of wages, the FLSA. Real
estate agents, or salespersons, are covered by the
FLSA except where, based upon the specific facts
related to the work performed, they are found to fit
under one of the broader exemptions established by
that law for an outside salesperson or independent
contractor. See, e.g., Luther v. Z. Wilson, Inc., 528
F. Supp. 1166, 1168 (S.D. Ohio 1981) (finding that
employer had not established that a real estate
salesperson was exempt under outside sales exemption
and thus finding that salesperson was owed minimum.
wages and overtime); Perdomo v. Ask 4 Realty & Mgmt.,
Inc., 298 F. App'x 820, 821 (11th Cir. 2008) (applying
multi-factor economic realities test to determine
whether real estate salesperson was an independent
contractor and thus exempt from coverage under the
FLSA) .
Consequently, and as with any other type of
worker, the question of whether a real estate agent is
20
an employee under § 148B turns on the language and
interpretation of that statute as applied to the
specific facts of this case. If a category of worker
is exempted from coverage by a statute, that exemption
is created through the use of specific language.
3. The 2010 amendment to M.G.L. c. 112, ~
87RR, merely acknowledged that real
estate agents - like other types of
employees - may be paid on a commission
basis.
If the Legislature had intended to exempt real
estate agents from the Independent Contractor Statute,
it would surely have done so in 2010, when it amended
M.G.L. c. 112, ~ 87RR. Instead, the 2010 amendment
merely states that a real estate agent "may, by
agreement, be paid as an outside salesperson on a
commission-only basis." M.G.L. c. 112, ~ 87RR.
Contrary to Defendants-Appellees' arguments, this
amendment has nothing to do with cementing independent
contractor status for real estate agents since there
is no inherent or dispositive link between independent
contractors and commissions. Indeed, many employees
are paid by commissions, and the Massachusetts Wage
Act, M.G.L. c. 149, ~ 148, which applies to payments
to an "employee," specifically covers "commissions."
21
See also Weems v. Citigroup Inc., 453 Mass. 147, 151
(2009) (noting that ~ 148 "expressly states that .
commissions that are definitely determined and due and
payable to the employee, are wages within the meaning
of the act"). Thus, while the 2010 amendment may make
clear that a real estate agent may be paid on a
conunission-only basis, it has no bearing on the issue
of whether a real estate agent is an employee or an
independent contractor for purposes of the payment of
wages.
D. HYP~TFiETICAL CONCERNS ABOUT COMPLYING WITH
THE LAW IS NOT A VALID REASON FOR EXEMPTING
SHE RE~,L ESTATE INDUSTRY FROM M.G.L. c. 149,
~ 148.
The Independent Contractor Statute states that it
applies "[f]or purpose of this chapter and chapter
151." M.G.L. c. 149, ~ 148B(a). The private
enforcement mechanism for that statute allows
employees to pursue claims only under the following
sections: 33E, 148, 148A, 148B, 150C, 152, 152A, or
159C. See M.G.L. c. 149, ~ 150. According to the MAR
Amici, applying ~ 1488 in that manner would have a
detrimental impact on the peal estate industry because
it would then be required to comply with the
requirements of Chapter 149. MAR Amici Br. at 14.
22
The MAR Amici go on to discuss specifically M.G.L. c.
149, ~~ 47, 52, 100, and 150A. However, none of those
are statutes under which employees are permitted to
bring claims, so they are not relevant to the issues
before this Court.
More significantly though, not one of the so-
called burdens identified by the MAR Amici under the
wage laws is singular to the real estate industry.
These provisions impose obligations, which are at
times difficult to satisfy, on all industries. That
is the point. It is absurd for the real estate
industry to suggest that it should not be held to
these requirements of-the wage laws because compliance
seems difficult.
For example, the MAR Amici cite statutes that
require that employers keep records of their
employees' hours and that they provide breaks at
certain intervals. MAR Amici Br. at 14-15 (citing
M.G.L. c. 149, §~ 47, 52, 100). The MAR Amici
complain that it would be hard to keep real estate
agents' hours because they do a lot of work outside of
the office and that breaks would be challenging
because they could be called on at any time. However,
that is no different from any profession in which
23
employees make customer calls, perform delivery
services, or otherwise do their work in numerous
locations and/or are on call for their employer or
clients.
The MAR Amici also argue, somewhat surprisingly,
that real estate companies should be able to take
deductions from their agents' pay without the risk
that those deductions will be deemed to be unlawful
under the Wage Act. MAR Amid Br. at 15-16. But if
real estate agents are employees under ~ 148B (as will
likely be the case as to some real estate companies —
like Defendants-AppEllees in this case — but not
others), then they are subject to protection against
improper deductions from their wages just like any
other employee. If a court determines that, for
example, monthly "desk fees" charged to agent-
employees "operate to require employees to buy their
jobs from employers" and therefore "violate public
policy," Awuah v. Coverall North America, Inc., 460
Mass. 484, 498 (2011), then of course the employer
charging those fees should be held accountable.
Finally, the MAR Amici argue that the minimum
wage laws should not apply to the real estate industry
because they "bluntly contradict[] the fact that real
24
estate professionals typically earn their compensation
in the form of commissions MAR Amici Br. at
16. However, as noted above, the wage laws recognize
that employees may be paid by commission and explain
how the minimum wage and overtime provisions are to be
applied to employees paid by commission. See 455 CMR
~ 2.01 (explaining how to calculate regular and
overtime rate for employees paid on "commission
basis"); M.G.L. c. 149, ~ 148 (stating that it applies
"so far as apt, to the payment of commissions when the
amount of such commissions, less allowable or
authorized deductions, has been definitely determined
and has become due and payable to such employee"). It
wi11 be an issue for the trial court to determine the
damages recoverable for Defendants-Appellees' wage law
violations, but their commission payment structure.
certainly does not exclude them from the requirements
of the wage laws.
E. BOSTON PADS IS NOT A TYPICAL REAL ESTATE
COMPANY.
While Defendants-Appellees attempt to
characterize this case as being about the real estate
industry in general, it bears noting that Defendants-
Appellees operate their real estate company in a
25
manner that does not resemble the "industry standard"
described by the MAR Amici and elsewhere. The MAR
Amici claim that "real estate industry professionals
occupy a unique sphere of the workforce." MAR Amici
Br. at 4. This is so, they argue, because
"professionals within the real estate industry have
long been associated with an independence-based
approach to their careers" and because they "make
their own hours, determine their own business
productivity, are responsible for their own expenses,
are paid on commission rather than receiving a base
salary, ar~d are responsible for their own taxes." Id.
at 4-5. They go on to explain that "the real estate
industry is a highly individualistic and innovative
business. ." and that real estate professionals
enjoy "latitude in terms of setting their own
schedules and developing their own personal style and
marketing techniques." Id. at 5, 6-7.
This description in the MAR Amici's brief of the
"independent and self-made" real estate professional,
id. at 28, does not match the established facts
related to Defendants-Appellees' real estate agents.
Rather than "mak[ing] their own hours," id. at 5,
Defendants-Appellees require their agents to work
~"
specific shifts for a specific number of hours each
month. Append. 50-54, ~~ 29-34.5 Instead of
"determin[ing] their own business productivity," MAR
Amid Br. at 5, Defendants-Appellees discipline agents
who fail to meet the productivity goals they set.
Append. 60-61, 9I9[ 44-45. Rather than being "highly
individualistic" and "developing their own personal
styles and marketing techniques," MAR Amid Br. at 5-
6, Defendants-Appellees' agents must dress a certain
way, answer the phone a certain way, and are even told
by Defendants-Appellees that their clients are not
their own, but instead belong to the company. Append.
44, 64, 9[9I 13, 33; 154-55.
Resources from the website of the National
Association of Realtors further highlight the
difference between Defendants-Appellees and a
traditional independent contractor-based real estate
company. A document entitled "Independent Contractor
Statute - Frequently Asked Questions" contains a list
of "types of activities that should be avoided" by
companies endeavoring to classify their agents as
independent contractors. [Add. 49]. Of the five
5 References to the Joint Appendix in this case arecited as "Append. [page number]."
items on the list, the facts establish that
Defendants-Appellees engage in four:
.Activity to be Avoided Defendants-Appellees
"Requiring the worker to Agents must workperform the services mandatory shifts, duringduring set work hours" which time they must
answer the phone, takeout of the trash, updatefaxes, and are prohibitedfrom going out onshowing. Append. 50-51,y[9I 29-30. Agents mustalso work "front desk"shifts to perform "warmcalling" (i.e., callinglandlords to obtainlistings), update thecompany's database, setup meetings, and marketproperties. Append. 52,
9I 31.
"Requiring the worker to Agents must perform "warmperform the services at a calling" and otherspecific location" activities from the
office during themandatory office andfront desk shifts.Append. 50-52, yI9[ 29-31.
"Making attendance at Agents must regularlystaff meetings mandatory" attend mandatory meetings
with Defendants-Appellees' management.'Append. 35, 9I 4; 114.
"Providing training to Agents must extensivethe worker" complete mandatory
training, which includes60 hours of "front desk"shifts and time spentcompleting 23 "galleries"(photographic andvideographed tours ofproperties). Append. 45-50, 9I9I 21-28.
Add. 50.
Respectfully submitted,
MASSACHUSETTS EMPLOYMENT LAWYERSASSOCIATION & THE MASSACHUSETTSBUILDING TRADES COUNCIL, AFL-CIO,
BY...their_ attorneys.
11 ~~~~~
Ian 0. Russell(BBO #673387)
PYLE ROME EHRENBERG PC2 Liberty Square, 10th FloorBoston, MA 02109(617) [email protected]
Nicole Horberg Decter(BBO #658268)
SEGAL ROITMAN, LLP111 Devonshire Street, 5th FloorBoston, MA 02109(617) [email protected]
DATED: July 31, 2014
30
CERTIFICATE OF SERVICE
I hereby certify that on July 31, 2014, two trueand accurate copies of this brief were delivered byfirst class mail to:
Hillary SchwabBrant Casavant
FAIR WORK P.C.
192 South Street, Suite 450
Boston, MA 02111
Robert Kutner
Stephen Perry
Christopher Maffucci
CASNER & EDWARDS LLP
303 Congress Street
Boston, MA 02110
31
Ian 0. Russell
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies withthe rules of this Court that pertain to the format andfiling of briefs.
Ian 0. Russell
32
', ADDENDUM TABLE OF CONTENTS
An Advisory from the Attorney General's Fair Labor
Division on M.G.L. c. 149, ~ 148B, 2008/1......Add. 1
Executive Order No. 499 .........................Add. 8
St. 2008, c. 304, ~~ 1-32 ......................Add. 13
House No. 5075, Letter to Senate and
House of Representatives from
Gov. Deval Patrick (Aug. 2008) ................Add. 45
National Association of Realtors,
"Independent Contractor Status -
Frequently Asked Questions" ..................Add. 49
An Advisory from the Attorney General's Fair Labor Division onM.G.L. c. 149, s.148B
2008/11
The Office of the Attorney General (AGO) issues the following Advisory regarding M.G.L, c. 149, s.1483, the Massachusetts Independent Contractor Law or the Massachusetts Misclassification Law (the"Law"). This Advisory provides guidance with respect to the Attorney General's understanding of and
i enforcement of the Law. This Advisory is not a formal opinion. Opinions of the Attorney General areformal documents rendered pursuant to specific statutory authority. M.G.L. e. 12. s. 3, 6 and 9. TheAdvisory is intended to provide guidance only and does not create any rights or remedies.
I. INTRODUCTION
A. The Need for Enforcement
The need for proper classification of individuals in the workplace is of paramount importance to theCommonwealth.z Entities that misclassify individuals are in many cases committing insurance fraud anddeprive individuals of the many protections and benefits, both public and private, that employees enjoy.Misclassified individuals are often left without unemployment insurance and workers' compensationbenefits. In addition, misclassified individuals do not have access to employer-provided health care andmay be paid reduced wages or cash as wage payments.
Similarly, entities that misclassify individuals deprive the Commonwealth of taY revenue that the statewould otherwise receive from payroll taxes. In addition, as a result of misclassification, theCommonwealth often incurs additional costs, such as providing health care coverage for uninsuredworkers. Other potential costs for the Commonwealth include providing workers' compensation benefitspaid by the Workers' Compensation Trust Fund, and unemployment assistance without employercontribution into the Division of Unemployment Assistance fund,.among other indirect costs.
Finally, businesses that properly classify employees and follow all of the relevant statutes regardingemployment are likely to be at a distinct competitive disadvantage when vying for the same work,customers or contracts as those businesses that do not play by the rules. Further, by paying the propertaxes and insurance premiums, businesses following the Law are, in effect, subsidizing those businessesthat do not. Misclassification undermines fair market competition and negatively impacts the businessenvironment in the Commonwealth. The AGO expects businesses to contract only with businesses thatproperly classify their workers.
1 This Advisory supersedes the Attorney General's prior Advisories regarding M.G.L. c. 1~9. s. 14$B, including"An Advisory from the Attorney General, Amendments to Massachusetts Independent Contractor Law," Advisory2004/2; and an "Advisory from the Attorney General's Fair Labor and Business Practices Division on the Issue ofEmployee Versus Independent Contractor," Advisory 94/3.z The Commissioner of Revenue is charged with administering the Massachusetts wage withholding laws underM.G.L. c. 6~8, which provides a different definition of employee than ii~.C~.L, c. 149, s. 14~~3, for purposes ofMassachusetts income tax withholding. See .T~e,~~artrnc;nt aflZevenare T7R OS-II ~ F{fect of ~~'e~i~ Fm,~~Tovee~Jassifzcc~tion under;til G.L. c. 1=1.9..s. 14813 nn l3ritlalaolclin~ r~f7ax ors ~T'ae•e.s undef• ~17CT I c t'~1i. In addition, adefinition similar but not identical to M.G.L. c. 149, s. 148B, exists for unemployment insurance purposes. NI.Ci.L.c. 1S 1A. s. 2. The Massachusetts Workers' Compensation Law also provides a different definition of employee.14~LG:L. c. t52, s. 'I(4).
Advisory 2008/1
Add. 1
Page 1 of 7
B. The History of the Law
The proper classification of employees has long been an issue of great concern in the Commonwealth.Under common law, a number of factors determined the existence of an employer/employee relationshipbased on the totality of the relationship. See, e.g., Commonwealth v. Savage, 31 Mass. App. Ct. 714(1991). Those factors included the degree of control; the opportunity for profit and risk of loss, theemployee's investment in the business facility, the permanency of the relationship, the skill required andthe degree to which the employee's services were integral to the business.
In 1990, Massachusetts enacted the first version of the Law. By enacting the Law, the Legislatureestablished that notwithstanding that a working relationship could be considered to be one of independentcontractor under common law, the worker may still be deemed in employment for the purposes of theLaw. Boston Bicycle Cour^ieNS v. Deputy Di~ecto~ of the Division ofEmployfnent and Ti^aining, 56 Mass.App. Ct. 473, 477 (2002).
Subsequent to its enactment in 1990, the Law has undergone several amendments including: Section 214of Chapter 286 of the Acts of 1992; Section 165 of Chapter 110 of the Acts of 1993; Section 12 ofCha~~ter 23~ oftlie Acts of It398; and Section 26 of Cl~a~ter 193 a[ the acts 012004. The 2004amendment was part of legislation making broad changes to the laws governing the public constructionindustry. However, the Law, including the 2004 amendment, applies more broadly to a wide range ofindustries. The 2004 amendment kept intact, in large part, the standard for determining whether anindividual is an employee, but made several changes from the earlier version of the statute. Theamendment deleted the element "or is performed outside of all places of the business of the enterprise" asan alternative factor in prong two. In addition, the first element of prong two of the Law had read: "suchservice is performed ... outside the usual course of business for which the service is peg foamed..." Afterthe 2004 amendment, the element reads: "the service is performed outside the usual course of business ofthe employe)°." Finally, the amendment added "trade" to the list of activities eligible for independentcontractor status in prong three.
II. THE LAW
M.G.I,. c. 149, s. 1488, provides athree-part test which requires-that all three elements (commonlyreferred to as prongs one, two and three or the A, B, C test) must exist in order for an individual to beclassified other than as an employee. The burden of proof is on the employer, and the inability of anemployer to prove any one of the prongs is sufficient to conclude that the individual in question is anemployee. M.CJ.L, c. 149 s. 14SB (using the term "unless"). See also Sealli v. Citizens I'i~zancial Gror.~n,2006 WL 1581625, * 14 (D. Mass. 2006); Rainbow Development, LLC v. Com., Dept. of IndustrialAccidents, 2005 WL 3543770, *2 (Mass. Sup. Ct. 2005).
Courts have had a limited opportunity to interpret M.G.L,, c. I49t s. 148B. In College News SeNVice v.Deparhnent of Industrial Accidents, 21 Mass.L.Rptr. 464, 2006 WL 2830971, the Superior Court notedthat M.G.L. c. 14}, s. 148 is almost identical to M.G.L. c. 151A, s, 2, the statute used by the Division ofUnemployment Assistance, and therefore relied on the case law analyzing 1VI.G.L. c. 151. s. 2. tointerpret ?~1.G.I,. c. 149, s. l~&L. See *4 ("If the Legislature uses the same language in several provisionsconcerning the same subject matter [e.g., the definition of an employee in distinction from an independentcontractor], the courts will presume it to have given the language the same meaning in each provision.").
Advisory 200811
Add. 2
Page 2 of 7
See also Commonwealth v. Gee°mano, 379 Mass. 268, 275-76 (1979). Because prongs one and three ofM.G.1 . c. 1~9, s. 1 ~8B and M.G.L. c. 1 ~ 1A, s. 2 are nearly identical and because prong two of M.G.L,. c.149, s. 14sB contains one of the two steps of prong two in M.G.L. c. 151A, s. 2, Massachusetts case lawinterpreting IvI.G.L. c. 151A, s. 2 provides a useful guide to interpreting 1!C.G.L. c. 149, s. 14~4B.
A. The Three Prong Test
Prong One: Freedom from Control
The first prong of M.G.I.. c. 149, s, 1488 provides that the individual must be "free from control anddirection in connection with the performance of the service, both under his contract for the performanceof service and in fact" in order for the individual to be an independent contractor. In Commissioner of theDivision of UnenzploymentAssistance v. Town Taxi of Cape Cod, 68 Mass. App. Ct. 426, 434 (2007), theCourt noted in interpreting the nearly identical language of prong one of M.G.L. c, 151A, s. 2 that:
The first part of the test examines the degree of control and direction retained by theemploying entity over the services performed. The burden is upon the employer todemonstrate that the services at issue are performed free from its control or direction. Thetest is not so narrow as to require that a worker be entirely free from direction and controlfrom outside forces.
Id. (citations omitted).
The first prong of the test includes a determination of the employer's actual control and direction of the- individual. See M.CT.I.,. c. 149, s, l4f~B (using the phrase "in fact"). An employment contract or job
description indicating that an individual is free from supervisory direction or control is insufficient byitself to classify an individual as an independent contractor under the Law. To be free from an employer'sdirection and control, a worker's activities and duties should actually be carried out with minimalinstruction. For example, an independent contractor completes the job using his or her own approach withlittle direction and dictates the hours that he or she will work on the job.
Prong Two: Service Outside the Usual Course of the Employer's Business
Prong two of M.G.I... c. 149, s, l ~8I3(a)(2} provides that the service the individual performs must be"outside the usual course of business of the employer" in order for the individual to not be classified as anemployee. Prior to the 2004 amendment, the employer could alternatively demonstrate that the work wasperformed "outside of all places of the business of the enterprise." The Law does not define "usualcourse of business" and Massachusetts courts have had limited opportunities to do so. In Athol DailyNews v. Division ofEmployment and Training, 439 Mass. 171, 179 (2003), the Court found thatnewspaper carriers were performing the "usual course of business" of the newspaper relying on theemployer's own definition of its business. In American Zurich v. Dept. of Industrial Accidents, 2006 WI,2205085, *4 (Mass. Super. 2006), Judge Paul Troy noted that "a worker whose services form a regularand continuing part of the employer's business" and "whose method of operation is not such anindependent business" through which workers' compensation costs can be channeled, "should be found tobe an employee." Id. Yet, "if the worker is performing services that are part of an independent, separate,and distinct business from that of the employer," prong two is not implicated. Id.
Advisory 2008/1
Add. 3
Page 3 of 7
Prong Three: Independent Trade, Occupation, Profession or Business
Prong three provides that the individual "is customarily engaged in an independently established trade,occupation, profession or business of the same nature as that involved in the service performed" in orderfor the individual to be classified other than as an employee. M..Ci.L. c. 1~9, s. ].4$:I~(a)(3}. "Under thethird prong, the court is to consider whether the service in question could be viewed as an independenttrade or business because the worker is capable of performing the service to anyone wishing to availthemselves of the service or, conversely, whether the nature of the business compels the worker to depend
- on asingle-employer for the continuation of the services,"-Coverall v. Division of Zlnemployment - - -Assistance, 447 Mass. 852, 857-58 (2006) (interpreting prong three of M.G.L. c. 151A, s. 2). The courtwent on to note in Coverall:
Although the court can consider whether a worker is capable of performing the service to anyonewishing to avail themselves of the services, the court may also consider whether the nature of thebusiness compels the worker to depend on a single employer for the continuation of the services[citation omitted]. In this regard, we determine whether the worker is wearing the hat of theemployee of the employing company, or is wearing the hat of his own independent enterprise.
Id.
B. Issues Deemed Irrelevant
An employer's failure to withhold taxes, contribute to unemployment compensation, or provide worker'scompensation is not considered when analyzing whether an employee has been appropriately classified asan employee. M.G.L, c. 149, s. 1.4~B(b). Hence, an employer's belief that a worker should be anindependent contractor has no relevance in determining whether there has been violation of the Law.Similarly, the Law deems irrelevant the status of a worker as a "sole proprietor or partnership," for thepurpose of obtaining worker's compensation insurance. M.C'x:L. c. 1'k9, s. 148B{"c).
C. Violation of the Law
M.G.L. c. 1~9, s. 1~8}3(d) provides that an employer violates the statute when twa acts occur. First, theemployer classifies or treats the individual other than as an employee although the worker does not meeteach of the criteria in the three prong test. Second, in receiving services from the individual, theemployer violates one or more of the following laws enumerated in the Law:• The wage and hour laws set forth in M.G.L. c. 149.• The minimum wage law set out in :M:.C.T.I.,. c. 1 S 1. s. lA, lB, and 1 J; 45S C:IvLR 2.()1, et seq.• The overtime law set forth in NI.G.1~. c. 151 s. 1 1A 1B aad 19.• The law requiring employers to keep true and accurate employee payroll records, and to furnish
the records to the Attorney General upon request as required by IvI.G.Z. c. 1 ti 1 s. 15.• Provisions requiring employers to take and pay over withholding ta~Yes on employee wages.
M.Ci.L. c. 62B.3• The worker's compensation provisions punishing knowing misclassification of an employee.
M.G.I,. c. 152, s. 14.
3 As noted in footnote 2, for purposes of income taY withholding, M.{i.L. c. ~2B provides a definition of employeethat differs from the three prong test in NI.G:L. c. 1~9, s. 148B.
Advisory 2008/1
Add. 4
Page 4 of 7
The statute authorizes the Attorney General to impose substantial civil and criminal penalties, and in
certain circumstances, to debar violators from public works contracts. 1vI.G.I,. c. 149, s. 27C(al(31. The
penalties and length of debarment depend upon the nature and number of violations. M.G.L. c. 1~9, s.
I4~B d also creates liability for both business entities and individuals, including corporate officers, and
those with management authority over affected workers.
...III. ENFORCEMENT GUIDELINES
A. General Enforcement Guidelines
The AGO recognizes that enforcement guidelines are useful to employers, entities and individuals who
must determine whether a particular situation or individual has employee status. When enforcing the
Law, the AGO attempts to protect workers, legitimate businesses and the Commonwealth, consistent with
the goals of the Law outlined in the Introduction.
The Law is focused on the misclassification of individuals. In the event that all individuals performing a
service are classified and legitimately treated as employees of an entity (paid W-2 income, received W-2
tax forms, subject to withholdings for federal and state taxes, covered by workers' compensation
insurance, eligible for unemployment compensation benefits, etc.) and are performing the service as an
employee, then there is no misclassification of those workers. Accordingly, in determining whether the
Law has been violated, the initial question is whether an individual or individuals are classified other than
an employee. For example, if painting company X cannot finish a painting job and hires painting
company Y as a subcontractor to finish the painting job, provided that all of the individuals performing
the painting are employees of company Y, then the Law does not apply. However, if painting company X
hires individuals as independent contractors to finish the painting job, then this would be a violation of
prong two and a misclassification under the Law.
The AGO is cognizant that there are legitimate independent contractors and business-to-business
relationships in the Commonwealth. These business relationships are important to the economic
wellbeing of the Commonwealth and, provided that they are legitimate and fulfill their legal requirements,
they will not be adversely impacted by enforcement of the Law. -The difficulty arises when businesses are
created and maintained in order to avoid the Law. The AGO will enforce the Law against entities that
allow, request or contract with corporate entities such as LLCs or S corporations that exist for the purpose
of avoiding the Law. In these situations, the AGO will consider, among other factors, whether: the
services of the alleged independent contractor are not actually available to entities beyond the contracting
entity, even if they purport to be so; whether the business of the contracting entity is no different than the
services performed by the alleged independent contractor; or the alleged independent contractor is only a
business requested or required to be so by the contracting entity.
In reviewing situations for misclassification, the AGO considers certain factors to be strong indications of
misclassification that warrant further investigation and may result in enforcement. These include:
• Individuals providing services for an employer that are not reflected on the employer's business
records;• Individuals providing services who are paid "off the books", "under the table", in cash or
provided no documents reflecting payment;
• Insufficient or no workers' compensation coverage exists;• Individuals providing services are not provided 1099s or W-2s by any entity;
Advisory 2008/1
Add. 5
Page 5 of 7
• The contracting entity provides equipment, tools and supplies to individuals or requires thepurchase of such materials directly from the contracting entity; and
• Alleged independent contractors do not pay income taxes or employer contributions to theDivision of Unemployment Assistance.
Since it is not feasible to address in this Advisory every situation that could occur and since each caseinvolves its own set of facts, it should be recognized that each potential enforcement action shall bereviewed by the AGO on a case-by-case basis, consistent with the Law.
B. Prong Two Guidelines
Due to the nature of prong two and the lack of judicial precedent, the AGO recognizes the complexity thatprong two presents and the concerns regarding legitimate independent contractors, particularly amongcertain segments of the workforce.
As discussed above, the AGO emphasizes that the initial question in determining whether the Law hasbeen violated is whether an individual or individuals are classified other than as an employee. Only whenan individual or.individuals are classified other than as an employee will there be a determination ofwhether any of the prongs — including the complex prong two —are violated.
In Athol Daily News, the Court advised that no prong should be read so broadly as to render the otherfactors of the test superfluous. 439 Mass. at 180. Thus, prong two should not be construed to include allaspects of a business such that prongs one and three become unnecessary.
In its enforcement actions, the AGO will consider whether the service the individual is performing isnecessary to the business of the employing unit or merely incidental in determining whether theindividual may be properly classified as other than an employee under prong two.
Some examples of how the Attorney General will apply prong two4:• A drywall company classifies an individual who is installing drywall as an independent
contractor. This would be a violation of prong two because the individual installing the drywallis performing an essential part of the employer's business.
• A company in the business of providing motor vehicle appraisals classifies an individualappraiser as an independent contractor. This would be a violation of prong two because theappraiser is performing an essential part of the appraisal company's business.
• An accounting firm hires an individual to move office furniture. Prong two is not applicable(although prongs one and three may be) because the moving of furniture is incidental and notnecessary to the accounting firm's business.
4 In interpreting the Illinois independent contractor law, the Supreme Court of Illinois noted in Cmpetland U.S.A.,Inc. v. IL Dept. of EmploymentSecui°ity, 201 I11.2d 351, 386-88 (2002):
The washing of windows or mowing of grass for a business is incidental. But when one is in thebusiness of selling a product, sales calls made by sales representatives are in the usual course ofbusiness because sales calls are necessary. When one is in the business of dispatching limousines,the services of chauffeurs are provided in the usual course of business because the act of driving isnecessary to the business.
Although the Illinois statute is not the same as the Massachusetts statute, the court's analysis is useful forguidance on how the Attorney General will undertake prong two enforcement.
Advisory 2008/1
•..
Page 6 of 7
N.-CONCLUSION
As this Advisory reflects, the AGO will carry out its enforcement responsibilities to serve the goals of theLaw as articulated in the Introduction. The Law has been passed and amended over time to addressserious abuses by various entities, and the AGO's goal is to prevent and remedy those practices withoutdisrupting legitimate business activity.
Advisory 2008/1
Add. 7
Page 7 of 7
THE COMMONWEALTH OF MASSACHUSETTS;, EXECUTIVE DEPARTMENTw
~ d STATE HOUSE • BOSTON 02133
'` (617) 726-4000p~ e
~~M s~~v
OEVAL L PATRICKGOVFAN~R
TIMOTHY P. MURRAYLIEUTENANT GOVERNOR
.~ .
By His Excellency
DEVAL L. PATRICPCGOVERNOR
EXECU'T'IVE ORDER NO.499
Establishing a Joint Enforcement Task Force on theUnderground Economy and Employee Misclassification
WHEREAS, the health of the Commonwealth's economy, itsworkers and its businesses is harmed by the existence of an illegalunderground economy in which individuals and businesses concealtheir activities from government licensing, regulatory and taxingauthorities;
WHEREAS, individuals and businesses that operate in theunderground economy do so in violation of labor, employment, tax,insurance and occupational safety laws, by failing to pay requiredwages, carry workers' compensa~l:ion insurance, comply with health,safety and licensing requirements, or pay income taxes and payrolltaxes that fund unemployment insurance, disability insurance, andMedicare and Social Security benefits;
WHEREAS, certain businesses also improperly classify theiremployees as "independent contractors" (referred to as "employeemisclassification") and hire undocumented workers to avoidcompliance with labor, erriployment, tax, insurance and regulatoryrequirements;
WHEREAS, 'the underground economy and, in particular, thepractice of employee misclassification: (1) exploits vulnerable workersand deprives them of legal benefits and protections; {2) gives
Add. 8
unlawful businesses an unfair competitive advantage over lawfulbusinesses by illegally driving, down violators' taxes, wages, andother overhead costs; (3) defrauds the government of substantial taxrevenues; and (4) harms consumers who suffer at the hands ofunlicensed businesses that fail to maintain minimum levels of skillsand knowledge;
WHEREAS, a recent study based on audits of Massachusettsunemployment records for construction employers between 2002 and2005 found that up to 14% of the employees covered by the ai.~ditswere estimated to have been misclassified by employers;
WHEREAS, efforts to combat the underground economy andemployee misclassification historically have been divided amongvarious agencies, diminishing ~khe timeliness, efFiciency andeffectiveness of such efforts; and
WHEREAS, the creation ofi joint task forces has proven to bean effecfiive mechanism for enhancing interagency cooperation,information sharing, and the prosecution of violators;
NOW, THEREFORE, I, Deva{ L. Patrick, Governor of theCommonwealth of Massachusetts, by virEue of the authority vested inme by the Constitution, Part 2, c. 2, § I, Art. I, do hereby order asfollows:
Section 1. There is hereby established the Joint EnforcementTask Force on fihe Underground Economy and EmployeeMisclassification (the "Task Force").
Section 2. The Task Force shall consist of the followingmembers or their designees: the Director of Labor, theCommissioner of Revenue, 'the Commissioner of the Department ofIndustrial Accidents, the Chief of the Attorney General's Fair LabarDivision, the Commissioner of the Division of Occupational Safety,the Commissioner of the Department of Public Safety, the director ofthe Division of Professional Licensure, the Director of ApprenticeshipTraining and the Director of the Division of UnemploymentAssistance. The Director of Labor shall chair the Task Force.
2
Add. 9
Section 3. The Task Force shall coordinate joint efforts tocombat the underground economy and employee rriisclassification,including efforts to: (a) foster compliance with the law by educatingbusiness owners and employees about applicable requirements.;._(b) conduct joint, targeted inves~tigai;ions and enforcement actionsagainst violators; (c) protect the health, safety and benefit rights ofworkers; and (d) restore competitive equality for law-abidingbusinesses.
In fulfilling its mission, the Task Force shall:
a. Facilitate timely information sharing between and amongTask .Farce members, including through theestablishment of protocols by which participatingagencies will advise or refer to other agencies matters ofpotential investigative interest;
b. Identify those industries and sectors where theunderground economy and employee misclassificationare most prevalent and target Task Force members'investigative and enforcement resources against thosesectors, including through the formation of jointinvestigative and enfiorcement teams;
c. Assess existing investigative and enforcement methods,both in Massachusetts and~in other jurisdictions, anddevelop and recommend strategies to improve thosemethods;
d. Encourage businesses and individuals to identify violatorsby soliciting information from the public, facilitating thefiling of complaints, and enhancing the availablemechanisms by which workers can report suspectedvio{ations;
e. Solicit the cooperation and participation of districtattorneys and other relevant enforcement agencies,including the Insurance Fraud Bureau, and establishprocedures for referring cases to prosecuting authoritiesas appropriate;
Add. 10
f. Work cooperatively with employers, labor, and communitygroups to diminish the. size of the underground economyand reduce the number of employee misclassifications by,among other means, disseminating educational materialsregarding the applicable laws, including the legaldistinctions between independent contractors andemployees, and increasing public awareness of the harmcaused by the underground economy and employeemisclassification;
g. Work cooperatively with federal, commonwealth, andlocal social services agencies to provide assistance tovulnerable populations that have been exploited by theunderground economy and employee misclassification,including but not limited to immigrant workers;
h. Identify potential regulatory or statutory changes thatwould strengthen enforcement efforts, including anychanges needed to resolve existing legal ambiguities orinconsistencies, as well as potential legal procedures forfacilitating individual enforcement efforts; and
i. Consult with representatives of business and organizedlabor, members of the General Court, community groupsand other agencies concerning the activities of the TaskForce and its members and ways of improving itseffectiveness, including consideration of whether toestablish an advisory panel under the secretary of Iaborand workforce development.
Section 4. The Task Force shat( transmit an annual report tothe Governor summarizing tl~e Task Force's activities during thepreceding year. The report shall, without limitation: (a) describe theTask Force's efforts and accomplishments during the year;(b) identify any admiriis~trative or legal barriers impeding 'the moreeffective operation of the Task Force, including any barriers toinformation sharing or joint action; (c) propose, after consultation withrepresentatives of business and organized labor, members of thelegislature and other agencies, appropriate administrative, legislative,
Add. 11
or regulatory changes to strengthen the Task Force's operations andenforcement efforts and reduce or eliminate any barriers to thoseefForts; and (d) identify successful preventative mechanisms for..reducing the. extent of the underground economy and employeemisclassification, thereby reducing the need for greater enforcement.The Task Force also shall take appropriate steps to publicize itsactivities.
Section 5. To the extent permitted by law, every agency witriinthe Executive Branch shall make all reasonable efforts to cooperatewith the Task Force and to furnish such information and assistanceas the Task Force reasonably deems necessary to accomplish itspurposes.
Section 6. Nothing in this Executive Order shall be construedto require aci:ion inconsistent with any applicable state or federal law.
Section 7. This Executive Order shall coritinuz in effect untilamended, superseded, or revoked by s~sbsequent Executive Order.
~, ~ ,.~ ._~i.
Given at the Exe utive Chamber inBoston 'this ~,~~ay of March in the yearof our Lord two thousand and eight andof the Independence of the UnitedStates, two hun ~ 'rt -two.
M1
Q~
`~ DEVAL L. PATRICKGOVERNORCommonwealth of Massachusetts
WILLIAM FRANCIS GALVINSecretary of the Commonwealth
GOD SAVE THE COMMONWEALTH OF MASSACHUSETTS
5
Add. 12
AG~.S
24}f~$
Ch~ptet` 3Q4 AN ACT PROVIDING FOR CAPITAL FACILITY REPAIRS AND IMPP.OVEMEI4TS FQR THECOf~1MONWEALTH.
tNhereas, The deferred operation of this act would tend fits defeat its purpose, which is to pravidefarthwith fr~r the irt~medi~te capital improvem~r~t needs of the comm~r~wealth, therefore i~ is herebyde~3~recl to be are ee~r~ergency law; necessary fc~r the irr~mediate preservation of thy: publicconvenience.
Be if ~nac~ed by the Sena~~ and Nouse cif Representatives irr General Cocrrt ~sseartbled, and bythe authority of the same as foilovis:
SECTI~ht 1. To provide fc~r a program of capital facility repairs ar~d improvements tc~ prntect art
improve fihe capital facilities ofithe carnmonwealth and for a program of capital asset ~cquisitic~nsfor genera! gaver~ment operations, the sums sit fiorfih in sectir~ns 2A, 2B, 2C and 2D, inclusive, forthe several purposes and subject tc~ fih~ conditions specified in this act are hereby made available,subject fo the Paws regulating the disbursement of public funds, which sums shall be in addition toany other amounts previousEy appropriated for these purposes.
NC.~ S~CTI~td Z.
~;
EXECUTIVE OFFICE FOR ADNfBNISTRAT~4N ACED FINANCEOffice of the Secretary
~ 100-7400.. For the recapitalization of the Massachusetts Community Development FinanceGarporation esfablish~d pursuant to s~ctic~n 2 of chapter 40F of the Genera[ Laws; prz~videc~, thatthe carporation shat! prepare a 5-year sfirategic operatic~r~s plan which shah include, buff not belimited to, {i) identification of the financial resources required to meet the missian and on-goinglending operations of the corporatian; (ii} a plan to reduce or elim€Hate the need ~c~r public subsidiesto meet the missian ~f fihe carporafiion; ar~d (iii} identificatie~n of the corporate rel~tiar~ship tc~ andpurpose cif any affiliated or subsidiary co€~parations, including a description of haw the affiliation orsubsidiary relationship is cansistent with the objective of fu[~Iling the rr~issian of the corparationa andprovided further, that the corporation sha!! submit the strategic operations plan to the executiveoffice far administration and finance and fo the hau~e and senate committees Qr~ ways and meansHat later than December 3~ , 2008 $10,000,0(}0
Add. 13
1 ~ 00-92Q0.. For costs associated with the purchase and procurement of equipment far general
government operations ....................... $25Q,~O.Q,OOQ
~:1 ' ~ TI 117~~Cil~~F7~:1~~.~#C~I4'y,1~~1•/:~~t~y !1lI~~~~
X000-0700.. Fnr equipment fnr the depar~menf of correction and other agencies wifihin the........
executive t~fFce of public safety aid security including, but nofi limited t~, medical equipment,
securifiJ equipment and ~ommunieations equipment ............................................. $25,0OO,OClQ
8Q04-2020.. Fc~r the design, canstructi~n arrd implementation of the department of st~fe police
mobile data network and are automated rr~otorvehicle ciliation system, including the use ofi"MDT"
devices............ p15,C?OQ,000
s~ aa-~o~~.. For the rep6ac~menf o~ stag police cruisers; provided, that the state police shalldevelap a 5-year plan which specifies the number of vehicles to be replaced each fiscal year over a
5-year perifld~ provided fiurther, that the department shall report annually to the house and senate
committees an ways and means the number of vehicles and condition of each vehicEe replaced
under this plan; provided further, that the r~pa€~ shalE a9so include, but not be limited ta, the tats(
amount spent in each fiscal year; ~~d provided further, that the f rs~ report shall be Fled by January
1!* ~~1 i1 11
8100-90 0., far the purchase cif state police helicopters; provided, that the state police shall trade
in 1 helicopter frcam the current inventary of helicopters each time a repfacemenfi medium lift
helicopter is purchased, and the value of the trade-in shall be used to reduce fihe negotiated
purchase price of the replacement helicopter.....,.. $25,000,000
EXECUTNE {~FF[CE FC~R ADMINISTRATION AND FINANCE
lnformatian and Technology Division
1790-30fl0.. for casts assaciate with planning and studies, the preparation of plans and
specifications, purchase ar~d procurement ofinformation technoEQgy-related equipment and r~~a~~d
projects; provided, that any federal reie~abursement received by ~ state agency in connectiar~ with
projects funded from phis item may bs retained by fihe state agency and expended for the purposes
of the project, without further ~ppropri~ti4n, in addition to tf~e ame~un~s appropriated in this item,
provided fiurther, that any stag agency receiving federal reimbursements far a project funded from
this items ~fl fle a quarkerly report with fihe executive office ~c~r administration and finance, the
house and senate committees on ways and rrieans, and the joint commiftee an bonding, ca{aital
e~enditures, and state assets that details, by projecfi, an annual estimate of anticipated federal
reimbursement to be received can behalf cif and e; ended for tl~e praj~ct, as will as year-to-date
actin(federal reimbursement received and year-to-date ~ctu~l expenditures of the reimbursement,
Add. 14
by project; and provided furtherth~t $1,800,400 shelf be expended far informati€~n technalogy
systems upgrades afi the appeals court and the supreme judicial court ......................... $451,SOO,OOQ
SE~TIOt~ 2C.
EXECI~TIV~ OFFICE F4RADM~N3STPATION AND FINANCE.C7ffice of the Secretary
1100-8020.. For the Massachusetts flppc~rtunity Refrcatic~n and Exans'sc~r~ Jobs Capita( Program
related fie site remec~iation, preparatian and ancillary infrastructure imprav~ment projects; provided,
that the local executive government body and a fflr-profit entity involved in the project shall jointly
summit a request for funding to the secretary of housing as~d economic development which shall
include sufFcient documenfation including, but net limited to, a prajecf plan with specific gaal~ and
objectives fihafi fiulfy documents fife prflposed project and demonstrates that the businesses
assaciated with the projectwiil generate subs#antial sales from outside the commonwealth and will
result ire the creation of a net increase of at least 100 new permanent full-time jobs in Massachuse'~s
~~vithin 24 months after receipt o~ a grant and commits that the jabs ire to be mair~tain~d for at least
a 5-year period ar~d the jabs da not replace existing jobs elsewhere in fihe cammonwealth; and
pra~ided further, that twig annu~liy the secretary shall issue a ~nrritten report to the clerk of the hQUSe
of representatives and the clerk of the senate, who small forward the same to the chairs of the pause
artd senate commii~ees ran ways and means and the chairs of the joint committ~~ on economic
develapment and emerging technologies which shall include detailed descriptions of any
infrastructure €mprc~vement projects funded under this program, an accoun#ing of the variance, if
any, be~vueen praposed jobs and actuaE creation afjobs, the current and estimated amount of
taxable income. expected from each project and alE fiunds expended fc~r this purpose; provided
further, thafi nest less than $25,000,000 shall be granted to gafieway cities and cities with more than
40,000 inhabitants but fewer than 175,OOQ inhabitan#s where: {~ } fhe unemployment rate is at least
1.5 per cent higher than fihe statewide average; or (2}the median income of tie cifiy is 80 per cent
or I~ss of the state median inccame; and provided furkl~er, that nr~t less than $~ 5,000,040 s9~a11 be
expended on projects in cities in which bofih crifieria are applicable ................. $100,000,000
0640-0300.. for the Massachusetts Cult~raf Faciiifiies Fund established in secfian 42 of chapter
23G of the General Laws far the acquisition, design, consfiructic~n, repair, renovation, rehabifi#atiar~
ar c~fiher capital improvement ar deferred maintenance tQ a cultural lac€(ity $ 0,~J4Q,040
Division t~fCapital A.~sef Marragerrrer~t ar~d IUl~inte~►ance
The Governor disapproved certain I~nguage and re uced,fc~llowing ifem
~ 102-2Qt~8.. for cos#s associated with planning and studies, dispositions, acquisition of land and
bu'sidings and interests (herein by purchase, 6ease for a term, including any e>:tensir~ns, not to
exceed 50 years, gift or other transfers, or by eminent dcamain under chapter 79 of the General
Laws, for the pre{~ar~tion of plans and specifications, repairs, construction, renc~v~tior~s,Add. 15
imprc~ver~ents, asset management and demolition, dispasition and ~eme~iation of state-owned andformer caunty facilities end grounds and for costs associated with repair and maintenance of
buildings anc~ building systems and equipment at various facilities cif the commonwealth; provided,thafi ai3 maintenance and repair work funded irr this item shalt be listed in t~,e capita[ asstmanagement information system administered by the divisian cif capital asset management andmainter~anc~;, provided further; that, where appropriate, the coraimissioner of capital asset
management and rr►aintenance may transfer funds in acc~rdar~ce with the delegation Qf projectcnntr~l and supervision process under sectia 40B of chapter 7 of tha General Laws; provided
further, that ~'~ands sa transferred shelf be distrEbuted based gn the severity cif the need that the repair
will address end c~fh~r criteria developed by the divisian, ire consultatian with the secretary of
~dministratic~n end fnance; prnvided further, that oasts p~y~ble from this item shall inc3ude, but not
b~ limited ta, fihe casts ~f engineering and other services essenfiia(fio these projects rendered bydivision t~f capifi~! asset management and maintenance employees or by consu4tants;
9 7
prr~vided further, that amounts
emended for division empEayees may include the salary and s~9ary~re[~ted eayaenses flf these
employees to the extent ghat they work on or i n support of these projects; pravided further that, upan
certification by the cammissic~ner c~fi education pursuant to sec~ian 4 of chapter 463 of the acts cif
2004, $60,QOO,OOQ sh~l( be expended for costs associated with the construction of the Essex Narth
Shore Agricultural and T~chnic~E Schaal in the fawn cif Danvers; provided further, that not less than$24,00~,OOQ sha[9 be expended Fc~r the constr~ctian of the Massachusetts Psyci~iatric Respite! in
fih~ city of Warcester; and provided furtE~~r, thafi ~1,~0O,OOQ shall b~ expended far infrastructureimprovements end maintenance equipment at fihe Murphy Skating Rink in the South_ Bostan section
of the city of Boston ............................................... ~ $460,000,000
The governor d~sappraved c~rEain language and reduced following ifiem
11 fl0-3001.. Far a grant program to cities and towns for fihe purpose of providing funding fcar the
repair, renovation or canstructian of municipal f~ci6ities ar €nfrastructure or of any cul~ura(, saciaf,recr~atior~al ter other facilities serving ~ municipal purpn~e, including these owned or operated by
nc~nprofi'rt orgni~tions, fiechnc~logY upgrades ar~d purcl~~se of equipment, under rules adopted by
the executive c~fFce far administration and finance based upon the following criteria: an assesst~ner~tof fiscal and budgetary canstraints facing the rnur~icipality; an analysis of the municip~li~y's
proposed budget and ~n~ncing of the repair, re ov~tian, or cc~r~struction project; the municipalifiy's
need far fihe prc~~ect; the b n fifis try the municipality that will resui~ from fihe project; and an overallevaluation of the merits of the grant propc~saE; provided, that the execufiive mice of adminisfiratian
and finance may expend not more than 1 per cent cif the total amount available far the cast ofadministering phis program; provided further, fh~t not fess than $~ OO,OOQ shall be expended far theconsfiruction Qf a concrete ~o~anda~€on for refrigerant pipes afi fihe Bourne Ice Rink; provided further,
that not less than 1,0O ,OQO shall be expended far the lVlunicipal Stadium safiety p~-c~j~ct; providedfurther, that nat less than ~1,200,OOC~ shall bee ended fc~r improvements to the Nevvburyport
Add. 16
senior center in Newburyport, provided further, that not less than $7,000,000 sha[( be expended far
improvements to the Haverhill Stadium in Haverhill; provided fiurther, that not less than X100,000
shall be expended far renovations of Lakeville fawn hall; provided further, That not less than
$~ X0,400 steal! be expended fior renov~fiions ofi Freetcawn town half; provided further, that nc~t less
than $fi OO,OOQ shall be expended for renovations of Middleborough tcswn teal[; pr~avided further, that
not less thin $75, 00 sh~l1 be expended for canstructic~n of ~ parking lot at the Cauncil on Aging in
Middl~barough provided further, thaf not less than $3,50(3,000 shall be expended for wafi~rfront
develcapm~nt in Beverly, provided further, that nc~t less than 10,fl00,000 sell ~e expended for
clean up of the f~rrr~er Belchertown state schaal property; provided further, that nat less than
$4,0OO,OUQ shall k~e expended for restoration of the Loew's Pali PaEace Theatre; pravided further,
that nc~t less than $5 0,000 shall be expended far repairs tQ the H~mi(ton Center in Newton Lower
Falls; provided further, that nc~t 3ess than $30,000,000 shall be expended for repair Qr replacement
of v~ater pipes faceted under state highway routes 1 ar~d 39 in Saugus and that said appropriation
sha11 ~Iso be used for reimbursement to the town of Saugus for fhe cost o~ breaks to said pies
located under said sfiate highways; provided further, that not less than $2,00 ,000 shall be
expended fir the Hope House in the city of Bastan; provided further, that net [ess than $2,C?Q0,000
shal6 be expended for tyre Watertown Boys' and Gir€s' Club, (nc.; prQVided further that net less than
$'1,500,OOfl shall be expended for repairing the irrigation system at the Leo J. Martin golf course in
the city of Easton; provided further, that r at less than $250,000 shelf be expended for the Amesbury
Carriage Museum in the city of Amesbury; provided further, that not less fih~n $1,00 ,000 in
matching funds steal! be expended for the construction of a new senior citizen center in the tawn of
Ca~fon; pravided further, that net [ess than $250,000 shah[ be spent an renovations and
imprr~vemer~ts to the Qalton Town H~if; provided further, that nofi less than $2,50 ,000 shall be
expended fc~rfihe renovafiion and restorafiion of the Everett Nall Theatre in fihe Hyde Park secfiion csf
Briton; provided further, that not less than $40,000 shall be expended for the construe#ion and
maint~~ance of trails in the Tawn of Hearne; provided further, fhat raof {ess than $250,OU0 steal[ be
expended fc~r rehabil~fiation and renovafiions to the Gardner Seniar Center; prr~vided fiur~h~r, that neat
less than $5Q0,00 steal! be expended for the Tawn of Ashland, to create a quiet zone a~ the grade
level crossing on Cherry Strut in Ashland, to improve economic devefapmer~t and public safety in
the Town of Ashland; pravided further, thaf net less than $800,000 shall be expended for the
reconstruction of Ra to 133 from Chestnut Street fio Carlfion Drive and Routs 97 from the Grovelan~
line t~ Moulton Street in fhe Tawn of Georgetown; provided further, that not less thae~ $3QO,OOC~ shall
be expended for BaiBey Lane Bridge Replacement and Road 9rs~provements ire the Town of
Gearge~ow~; provided further, thafi not less than X3,000,000 shall be expended to the te~wn of
Burlington far fihe design, construction, and impl ~ner~t tio~ cif a capital infrastructure improvement
project adj~cen~ to Route 3 and MiddlesexTum ike in the town o~ Burlington; pravided fiurt er, thafi
net less fihan $~C~0,000 shalt be expended far infrastructure improvements related to pedestrian
safety, vehicle access and parking fnr the proposed Andover Youth Center in the Town of Andover;
prc~~i ed furkher, that net leis than 100,QOQ sh~11 be expended fr~r renovations of Charlton Town
Hall; provided further, that not less than $50,000 shall be expended for renovations of fast
Braokfie(d Tawn Hall; pravided further, that not less th~r~ $250,0 0 steal[ be emended to estabEish a
Add. 17
pifat pragr~m for implementing automatic meter-reading technc~[ogy, to be administered jointly bythe Braintree ~le~tric Light Department and the Braintree Water and Sewer Department; providedfurther, fhafi not less than $500,OOQ shat€ be expended for improvements fio the Water and Sewerbuilding in fibs fiovvn of ~rainfir~e; provided further, that not I~ss than $20x,000 shall be expended fiothe ~anie(s ~armste~d Faundation; provided further, teat not less than ~150,0~0 shat{ be e~aendedfor the construction of a new S~[t Shed in the city of Fitchburg; provided further, that not less than$250,000 ~ha91 be ~xpend~d for upgrades tca the el~;vator at the Council on Aging Center ~nBiRlerica; provided f~~rfiher, that not less than 25C1,Q00 shill be expended oi~ rer~ov~tions fc~r theA#hoi Senir~r Center; provided further, that not €ess than $1,000,004 be expended for the resto~atiar~of the Lynch Park Carriage House in the city cif Bev~r6y; provided further, that not less than$25x,000 shat[ be expended for ADA compli~t~ce at the tovun hal[ in Egremont; provided fur~h~r, thatnot less thin $X}0,000 shall ~e expended on the Beebe WoodslNighfield Qrive Walking Path ~~dparking facility in the Town of ~almc~uth; provided further, that not less than $20C3,OOQ shall beexpended of~ the design, ren~vatio~ and rec~nstrt~ction of the Surf Drive Bath House and the t~€dSilver Beach Bath House ire fibs Tawn of Falrncstath; provided ~ur~her, that nc~t less fihar~ $Z,O~lO,QOQshill be expe€~ded for the Town of rramingh~m to construct ~ C3owntown Parking Garage in closepra~t~ityto Framingham Memorial Bu6lding, serving TQV~n Uovernrnent, commercial, and relatedregian~l Public Service and Public Safety opeeatians; provided furkher, fh~t not less than$1,Q00,000 shall be expended for capital impravernents to the Bridgewater senior center in thetown afi Bridgewater; provided further, thafi $75 ,{300 shall be expended fior the Loring SkatingArena in the tawn 4f Framingham; provided further, that not leis than $1,000,000 shall be expendedfor the Presentation School in Brighton; provided further, that not less than $2,00O,OOU shall beexpended o~°a Fenvvay Community Health Center; provided further, t~a~ nQt €ess than $60 ,000 shallbe expended for Prc~jecfi PEace in Boston; provided further, that not less than $250,000 shill bee~rended far c~mmunicat€ons cansoles for the Braintree palice c~eparfinent; provided further, thatnot less than $250,000 Shall be expended fiat creation and deve[c~pment of a seniar center inCanfian; provided fuck er, that nofi less than $~ ,OOO,QQO shalt be expended for design endconsfiruction pf a performing arts center in Milton; provided further, that nofi less than $1,St?O,OOQshall be emended for design and constructian of a senior center in East Bridgewater; providedfurther, that not less th~rr $5,000,000 shall be expended for design and canstructian of a departmentof public works aper~fiions cenfier ire East Bric~gew ter; provided further, fihat nofi less than$'~O,OOQ,000 shall b~ expended far a municipal maintenance facility in Canton; provided further, thatnat less than $100,000 shall be expended for repairs to the Chester fawn hale; provided further, thatnot less than 5U0,000 shall be expended for renc~vati~ns to the nld tQUVr~ half in Easthampt~r~,provided further, that nat less than $24,000,000 shill b expended fc~r the Westfield i termc~da[ ar~ddowntown revitalization inifi[ative; provided further, that nat less than $SQO,Q00 shall be expe~cied forc~tC CQtIC~I~ltJC11ClC~ ~t CITY ~6c'~II f~l LyCiCI; provided further, that nc~~ less fi an $4,917,000 shall be e~aendedfnr waterfrc~n~ development in Lynn; provided further, that nit less than $2,253,395 shall beexpended for reconstruction cif the Ward bath ~c~use in Lynn; provided further, that not less than$1,QOO,fl00 shall be expended for improvements tt~ the Grand Array of the Republic build €rig inLynn; provided further, that no less thin $350;000 shall e e;.~ended for design end renovation of
Add. 18
Topsfield town hail; provided #urther, that $500,OQ0 shalE be expended for capital impravements to
the Trailside museum; provided further, that not less than $200,000 shall be emended for
Watertown Landing; provided further, that the sum of $2£~f~,000 sha16 be made available on a
matching basis wifih the town for the e~ter~sion and repair of sidewalks on Rote #1 ~ 3 in the fawn of
West Newbury; pr~u~ded farther, that nc~t less thin $100,000 be expended fc~r irr~pravernents to the
Cie ar~ment of Publ€c W~arks Maintenance Facilities i~ the city of UVest Spring~ieid; provided further,
~h~t got less thin $~ ,Q00,000 sha€I be expended for the consfructic~n of a seniar cenfier in the TQwr~
of VOfestmir~stee; pr€~vi ed f~€r~h~r, that not less than $1,QOO,OflO be expended fio the Department of
Public Works located ire the Tov~n cif Weymouth; provided further, that $5Q0,000 sha[I b~ expended
fQr repairs anei renavations to the ~anbc~rn House Culfiura! Facility in the Town of Winchester;
provided further, that X100,000 shall be expended for the Veterans memorial Hc~r~or Roll in the Town
of WincFtester, ravided further, that $3,0OO,OQ4 shall ~e expended far fibs design and consfirucfiion
c~~ a parking ~ar~ge in the Town ref iNinchester; provided further, that nc~t less than $1,000,000 shall
be ex ors ed for capital improvements to the V~ir~throp senior center in the town cf Winthrop;
p~c~~ided further, that nofi less than $176,OC}0 shall be expended fc~r development grants to the
1Naters Farm living Nistc~ry IV9useu~r~; prouided furkher, that not less than $240,000 shat! be
~xpe~ded ficar rer~ovat~ons ~t. the town ha(! in the town of Spencer; pravided further, that nc~t less than
$30,Q00 sha{I ~e exp~r~ded for the resfaration of the ~istaric North Purchase street school hose;
provided further ghat n€~fi less than ~25,OOQ shall be expended ft~r ~ comprehensive study to develop
sign end gr~p~ic standards fic~r the Plymouth Historic District; provided further, that not less than
$~S,G~~O sha61 be expended for landscape design and permi#ting for r~E~abif€cation cif the Training
Green in Plymouth; provided further, that not less th~r~ $3,500,000 shat! be e~~nded for design and
consfirucfiian proJect~ recommended by the Plymouth Public space Action Plan (2007); provided
fu~k~~r, that n~fi less than $250,000 shall be expended fior dag recreation space at Ronan park in the
~archester sectian ~f the city of Boston; provided further, that not less thin $~ OO,OQO shall be
expended for nevv facilities and improvemenfis at Almont park in the Matt~pan ~ecfiian cif the city of
Bas~~an; provided further, that nc~t 1~ss than $104,Q00 shall be expended for new facilities and
improvements at Walker Pfaygral~nd afi Norfi~~k Park. in the Mattapan secfiion of the city of Bostcar~;
provided further, that not less than $4,OU0,~(l0 shall be emended for design and constructian
projects an VI/ ter Strut as recommended by the Plymouth Public Space Action Plan (2007);
provided further, fihat not less than X155,000 sl~al9 be expended ficar street lighfis in the firawn of
~oume; provided ft~rkher, that not less than X3,200,000 shall be expended for renc~vatians at the
Falmouth Town Library; provided farther, that not less than $300,000 shall be expended for tie
historic restoraiian offihe Roc(~land Memarial Library; prouicied further, that rent less than $15,000
shall be expended for technology upgrades ~t the P[yme~uth Pubic Library; provided farther, thafi n~fi
less than $80,000 shalt be ~xper~ded fc~r the ~vlodernizafiion of the Plymouth Fire Prever~tian Bureau;
provided further, that nc~t less than $100,000 shalt be axpended fiar fibs establishment of the
Plymc~ufh Historical Records Management Program; provided further, that not less than $500,0 0
shalt e expended fc~r the restoration of the histt~ric Blanchard street schov~ house, ar~d for ACtA
improvements at the town hall, senior center, and library in the town of Uxbridge;- ,~~^°' {_,°~"-,
r
Add. 19
provided further, that notless than ~30Q,000 sf~a(I be e~er~ded for ADA compliance and entry way impravements at thetown hal! in Charlton; provided fu~her, that got less #han X665,735 shall be expended ~c~r° Q!d TownHall renavations in Barre; provided further, that r~c~~ fees th~t~ $1,OQ0,000 shall be expended fordeve(c~pment of a seniar center in Rutland; provided further, that nit less thin $1,50Q,000 shat€ be
expended for developmerst of a senior center in Tempfetflr~; provided further, that not less than
$x,540,000 vhall e ~xpertc6~d fc~r improvements to town hall in Framingham; provided further, that
nat I~~s than $8,000,000 shat! be expended for consfiruction cif a parkfnc~ g~r~ge in NafiPCk; providedfurtf~e~, that n4~ less ~h~n $1(}0,0 0 shat{ be expended for the 1-4~stshorne Nouse in Wakefieid;
provided further, that not less than $1,300, 00 shat( be eacpended for the preservation of the
~~useum ~~African American History; provided further, that nc~t 9es~ than $1,~0~, 00 sha![ beexpended for ~ s~niar renter in ~llalden; provided fiurther, that not less fhan $1,OOO,D00 shale beexpended fc~r canstruc~tion of a new facility for the Lena (park Community Development Corporation;~rgvide f~r~her, that r~c~t 4ess ti~an $~ ,OOq,ClO~ sha![ be expended far thQ preservation of the historic
registry rn ~tc~n~ham; ~rovid~d fL~rther, that nat less than $600,000 sh~l! be expended for the
r~~ocati€~n ref ohs salt storage sE~~ in Andover; pravided further, that not-less than 1,50 ,0 0 shall
be expended #or A.DA improvements at the town hall in Dracut; provided #urth~r, that not ices fihan
$8,000,000 shill be exp~nr~ed for Quabbin developrnen~ ire Bele}~erkawn; provided further, t#~a~ not
less thin X1,500,000 s~~all k~~ expended far EssexTown Hall exterior; provided further, that not lessthan $350,x}00 shill be granted to Gloucester for an ec~nc~mic development study fir a pr~viou~ly-identified area of the city with the potential far job creation; provided further, that not less than
$17 ,000 sh~l( be expended for reimbursements of replaced cu[v~rts damaged in the May 20 6floe~ding in Rr~vvley; p~•avic~ed f~sr~her, that not less khan $25Q,OQ0 small be expended for sidewalk
cor~~tructian anc~ fiat improv~~nents at Sharan Yokaifiis park along Mauna 1/err~on street in tie
Dorchester ~ectian of the city of Bastan; pravided fu~her, than nc~t less than $~ 00,000 shall be
expended for Nark's Ni!{ Housing in t~i~ town of V4lakefeld; provided further, that not fees thin
$40,OOQ shall be expended ~~r new 1N~rld War (E IV1 marial in the town of V1lakefie[d; providedfurther, that net I~ss than $45,000 shall be expended for infiormation techna{agy d~cumenfimanagement soiutians in the town of Wakefield; pravided further, that not less than $40,000 sh~Il be
expended for technalQgy upgrades fir fire department vel~icfes in the town of MarbCehead; providedfurther, that not less than ~5,Ofl0 shat( be expended for technr~[ogY upgrades for fire department~~ehic{es its the tr~vvn of Swamps~c~tt; provided further, that not less thin $25,000 sh~l9 be expendedto enhance the real-ti~ae farer~~ic ability of the Swampscott Police Department with the use cif Live
Scan finger print6r~g; provided fu~:her, thaf nofi ie~s than $200,000 shall be expended fio fund wind or
sokar ~nergY generation systems afi the transfer station in fihe town e~f Marblehead and a designated
buiEding in the town of Sw~~mps~afit; provided furfiher, that nofi less than ~1,OOO,C?0~ shall be
e~perrded fc~r the renovation of tl~e cc~rnmunity safety building in Arlington; provided further, that nab
less than 250,QQ0 shat! b~ emended fir repairs to the Brattle Streefi culverk in Arington; providedfiurt er, that not less than $50,000 shat( be expended for the ~tVesfi Medford community Center;provided further, thaf nat less ~ha~ X30,000 shall be expended on a security system for the FartTaber Military Museum; prc~vi~ed further, that rat (ess than $3,OOfl,000 sha(i be expended far the
Add. 20
Frederick DaugEass House and Museurr~ Ic~cated in the city of New Bedford far costs associated
WEt~1 I"et10V~f1C~l~, enhancement, reconstruction, improvement, expansion, derrooiition, acquisition,
properly repair, and exhibits and collections; provided further, that not ices than $35 ,000 steal[ be
expended on design and repair of the Parting Ways €3uilding in the town of ~cushr~et; provided
further, that nofi less than $5U,OJ0 shall be expended fior Market Ministries programs related to
facilities maintenance, improvements, restorafian, renovation, and educafiiora! capital expenditures;
provided further, that nc~t less than ~1,U00,000 shalE be expended far preservation end ~xp~nsian of
the Levi Standish House in fihe cifiy cif New Bedford; provided furfiher, that not less than X2,000,000
shall die expended far the rehabil€cation of the New Bedford Armory; provided further, that not less
than 2,~90C3,4Ut~ shall be expended far capital imprav~ments at the New Bedford Whaling NEuseum,
provided further, that nit less thin $3,OOQ,000 shall be expended can capital im rovemen~s to the
Zeiterian Theater inc(udi~g, but nab limited fio, demolition, acquisitiar~; renavatian, restaratic~n,
design, and canstr~.iction, including a bal[rc~om, expanded stage facilities and other capital
improvements; provided fu:-th~r, nat 6ess than $2,0OO,OflO shill be emended far egos! capitalization
offihe Western M~~sachusetts Er~t~rprise Fund, Inc. aid the Sautl~ Eastern Economic Development
Corporation; provided further, thafi the cor orations sha![ prepare 5-year sfir~tegic opera#lane plans
which shall include, beat not be lirnit~d to: (i} ider~t9fication of financial resources required to meet the
mission and ongcaing lending operafions of the corporation: and (ii} a plan of action for reducing or
elie~r~inat~ng the need fear public suk~sidies to rra et the missican of the torpor tiara nat later than
December 3~ , 2008; pravided fiurt~er, that not less than $750,flQ0 shal9 be expended for the benefit
of the town of Dartmouth to acquire the former state police barracks for appropriate town use
including, but not limifed to, a municipal, health, or educational facility; prQVided further, that not less
than $1,50Q,000 s ~[I k~e expended fore ansi~n; renovation, c~pifa) impr~v~mertts, relc~catior~, or
demQlitic~n faar the Fairhaven Council on Aging; provided furfiher that nat less than X2,000,000 shall
be expended for planning and design for imprQVements ~o the public safety buildings in the town of
Ashland; provided furkher, that nit less than X1,200,000 shall be expended far repairs and
improvements t~ the senior cenfi~r in the town of Medv~ay; provided further, thafi nofi I~ss than
$750,000 sha91 be expended fc~r rer~ovatians and repairs to the senior cenfier in.the town of Hallistan;
provided further, that nc~t less than X1,500,000 for repairs and renovations to the Danforth Museum
in the town of Fra~ningi~am; prr~vided further, that nr~t less than $2,500,000 steal! be expended far the
rehabilitafiic~n of the historical taws hall in fihe tcawn of Hapkintcan; provided further, that nc~t less thin
$? ,OOO,Ot~O shall be expended fi r a new senior enter in Falmouth; providec4 furkhe~-, That nit less
than $211,000 shill be expended for an engineering study to be conducted on wharves in
M~ttapoise ;provided further, that rant I~ss than 1,000,0 0 shalE be er,~ended for capi#al
imprav~menfis fic~ tie revere Senior center in the city of Revere; provided fur~h r, that not less than
$450,000 shall be expended fiar the purpose Qfi instilling sound barriers af~ng roufie 290 in the
Maynard street section ofthe tawn of Northbarough; provided further, that not less thin $4Qt~,000
sh~l( be exper~d~ci for the purpose of clan up and remediation of 199 Coburn Streef in the fawn of
Northl~c~rou h; prc~vid~d further, that not less fihan $500,OOQ shall be provided to the C~uincy Public
School system to be used fc~r technalogY upgrades; provided, that $100,000 shall be expended for
the reconstruction and instalfatian of public access improvements to the Larabee School building 6n
Add. 21
the town ofi Southampton; provided #ur~her, that not less than $1,00O,OOQ sha!! be expended for
upgrading ~r~d expanding the Martin Luther King Jr. Community Center in Springfield; provided ',
furCher, that not less than $500,000 shall be expended for ed~cafion and technc~l~gy computer
~~grades in Randolph; provided further, that nr~t less than 1,500,Q00 shall be expended for fihe ''
rehabilitation and upgrading of Parcel A of the Dunbar Community Center in Springfield; provided
furt~rer, fiat not less than $1,OQ0,000 shall be expended far the ref~abilitation and upgrading caf the
C3i~ls Club/family Cenf~r in ~pringfeld; provided furfiher, that not less than $300,000 sY~ali be
upended for renovatian's to Roya6stc~n's VO$hitney Hall and RayaEston Town hall to meet ful!
cot~piiance for accessibility under the Americans with Disabilities Act; provided further, that not
less than $2,OUO,U00 shall be expended fir impraverrsents to iNaconah Park in Pittsfield, pravided
further, that nat less than $500,0 0 steal[ be expended for the historic renovation and other
improvements to World War memori~E Stadium in the cifiy of Newburyporfi; provided furfiher, that not
less th~ri $195,Ot}0 s9~all be expended far the development o#'s~reefiscape improvements end
ad~itic~na( parking in the dt~wntowr~ area ~f Borth Andover; provided further, that nod less than
$ 00,000 steal( b~ exp~r~ded for improvements t€~ the Sfievens Estate in Nc~r~h Rndover; provided
~u~ er, that not ~e~s than $1 ~O,OaO shall be expended fir the study, design and development of a
windmill on the Stevens Est~t~ pi~op~rty in North Andover far the purpose cif providing an alternative
energy source; provided further, tnat riot ies~ than $1,000,000 shall be e~aended for fhe design and
cc~P~struction of a center for senior citizens in the town of Scituate; prc~~ided further, that not less than
$100,t~00 be emended for t(~e design of a new senior center in the town of Si~erbc~rn; provided
further, that fihe s€~m of $2~O,C140 s~~all be expended for municipal infrastructure to mitigate beach
ercasian problems in the Plum Islands cti~r~ of fhe town of Newbury, provided further, that $140,000
shall be expended finr a s~L~dy to det~rmi►-~e fihe feasibility of deve{apm~nt ar~d construction of ~nUnderground Railroad, Ciuil Rights end Black heritage Museum and ~ultura( Center in Springfield;
provided further, that $~,OOO,Q00 steal( be expended for the Geriatric Authority of Holyoke; provided
further, fihat $100,000 steal[ be expended far fihe renovationlrestarat~ar~ c~~ the City HaIE of Holyoke;
provided further, that nc~t less than $1,00 ,000 shad! be ~xp nded far the design and consfirucfiion of
a Cape Verdean Community Center at fihe former Mare Gutting Tools site or any other location
deemed ap~rropriate by the community in New Bedard; prcavided further, that not less than
$3,Q0~,000 shall be expended for the design and car~struc~ian cif fih~ Cass d~ Saudade/Portuguese
Cu3tural Center in New Ballard; provided further, that nc~t less than $500,000 steal[ be expended for
improvements tc~ the former Thompson Schoai in Rlevu Bedford, provided ftarfher, that not less than
$1,OOC3,000 be expended far the canstruction of a new Seniar Center and Community Center in the
town of f~ati~k; provided further, that nofi less than $1,400,000 be expended for the construction of a
new public safety building ire the town cif Mil6is; gravid d furkher, that not less fi era $2,500,000 ~h~l~
~e expended fiar the goys and Girls Club ~f Marshfield for the con~tr~ction ~f a new faciEity on [prod
design~fied by the towvn of Marshfield; provided further, that nat less than $250,000 shall be
expended for roof and ceiling repairs for the historic Mendon Town Hall; pravided further, that
$5~Q,000 shall be expended for fihe Restoration and Renov~tian of the Methuen H~~taric Museum in
the City of Methuen; provided f~rtEler, that $1,0OO,OQO shaEl be expended for tf~e widen€ng of the
Now Street Bridge in the City of Methuen; provided f~r~her, that not less than $254,OC30 shall be
Add. 22
expend~c4 far the design and construction of a public safety and public works facility in the Taws ofN8W Bt"a6~iti'e~; provided further, that nc~t less than $500,Qg0 shall be emended for upgrades for the
~'' (~ilton Youth Center; provided further, that not less than $350,0 0 shat[ be expended far a youthsports f~ciiitie~ granf for the. City of Melrose; pra~ided further, th~fi riot less than $50,000 shall beexpended for renovatians and repairs of the historic Bancroft Memorial Library ire Hopedale;provided further, that not Oess than $'1,000,(}00 st~aiE be expended four a senior center in Hopedafe;
provided further, that nr~t less thin $50fl,00a shall be expended far restoratian of fibs W.E.B, DuBois Hc~mesite in the Lawn cif Great Barrington; provided furkher, that not less than $~ 50, 00 shall beexpended for safety improvements at railroad crflssings in the town of Lir~co[n; pravided further, that$~ OO,OOQ shall be expended to renr~va#~, mate lead pair►fi and repaint the eacteric~r of the Chid TownsHaIE building in the town of Chelmsfard; provided further, that 1,0O~,OQO shelf be expended for thepurchase ofifre ~ppar~tus for puk~lic safiety in the town ~f Concord; prr~vided further, that nt~t lessthan $75,000 shall be expended to the city cif Greenfield far a Phase II feasibility and planning studyfar the dowr~tawn upper story development project; provided further, that not less t€~an $80Q,000shall be expended to the cify of Gr~enfs~dd fc~r the redevelopment arrd marketing of the First National
Bank wilding; prQVided further, that not (ass than $2,000,000 shall be ex~a~nded to aid in theconstruction of the Greenfield Transpartativn Center; provided further, that not less than $~ 73,000shall be expended for a histc~ricaf renovatian of the New Salem Academy Building; provided further,
that 300,OOQ sha91 b~ expended far the repair and improvements tc~ the green energy systems atsmith Academy in the town of Hatfield; prQVided fiurther, thafi nofi Less than $100,000 shal{ beexpended fc~r hazardous material remaval in fibs ~Jarth A lebaraugh school district; pro~rided further,that not less than $350,000 shill be expended for Georgetown Squire traffic signal upd~fes end3oop detection installation in the town of C~er~rgetown; provided further, that nc~t less than $800,000shall be exper~de~ for the acquisition of a Fadden firuck in the city of Gloucester; provided further, fihatnot less than $225,000 shelf be expended for the purchase of an aerial bucket truck for the fens gridtree departments in fhe town of Narwell; pravided further that net less than $4,OOt7,000 shall beexpended can the design and construction of a parking garage ar parking improvements in fi~~e cityofi F~li River; provided further, thafi net less than $150,000 shelf be e~aended far modernization andtechnalogy upgrades for fire department vehicles in the city of Everett; provided further, that not lessthan $70,000 shal3 be expended far technology upgrades at the recreatian center in the city ~~FEverefit; provided further, that not le~~ than $30,000 shall b~ expended for techr~c~l4gY uPgrad~s afithe YfvICA in the cit~r of Chelsea; provided furkher, that net less than X100,000 shall be expended formaintenance im~aprc~vement~ ~orthe police headquarters in fibs ci~yc~f West Spring~e~d; providedfurther, fihat nab less than X50,000 shall be expended fQr the Cahoon Museum in the town ofBarnstable far outreach and education promoti€~~ green building t~chr~ologies fior students inKindergarten ti~rc~uh grade 7; provided further, that nafi less than $100,000 be expended fc~rmaintenance improvements for the fire depar~menfi facilities in the city of West Springfiie6d; providedfurther, that not less than $100,0 0 shall be expended for t~aintenan~e improvements fir themunicipal office building in the city ref West Springfield; provided ~~rther, that not Eess than $30,OaClshill be expended fc~r directional signs tai the Ct~zuit Historic and Arts District; provided further, t finot less than 3~?O,C100 shall bee ended for renar+ations and improvements to the Greenwood
Add. 23
memorial bathhouse in the city of Gardner; provided further, that not Isss than $250,OOQ shall beexpended Tor rehabilitafian and renavazions ~a Ashby town hal6; provided further, that $50Q,000 shallbe expended far fihe renovafior~ of historic Lincoln Half as a corr~munity ~pac~ in the Town ofBoard; pravided further, thafi not less than 500,fl00 shelf be exp~raded for improvements to 90Pond Street in the tcawn of Braintree; pravided further, that not leis than $250,C}a0 shall beexpended for the enhancerr~en~ and ir~-oprovement of the Sylvan~;s Thayer Birthplace ar~d historicalcampus in the town of Braintree; provided furCh r, that $5Q0,000 shall be expended for technolagyupgrades far fire department vehicles in the towc~ ofi Sharon; pravided further, that not less thin'~ t ~!1 .' ~- - ~- s-t ~ • i • ass ~ i s •
i t ! ~ t • f i• i" s i w
'~ if ~i1 t- - *- • a r - • ,~ • • s - s - ~ • • •
~, 'iii 1!!
JUa1C9ARY
Triaf Gourt
1102-5600.. For capital n~~ds at court faciEities, including, but na# limited to, e~per~iturs for thepfannir~g, design, and acquisifiion of land and buildings and interests therein by purchase, lease fora term, including any extensions, not to exceed 50 yeas, gib or s~ther transfer; or by eminent domainunder chapter 79 of the General Laws, the preparation of plans ar~d specifications, the consfiruction,r~novatian, reconstruction, alteration, improvement, demc~l6tion, expansion, repair andimprovement, including furnishings and equiprraent and tempe~rary refocafiion costs, as needed forpriority prajects identified by the divisi~in of capital asset management and maintenance and the~ ministra~i~e once of the trial court; for building repairs necessary to correct unsafe andovercrawded conditions, for the rerr~edi~tion ref life safiety code violations, fir fihe remediation ofaccess code and civiE rights vioitians, for the remediafiian o~ environmental hazards and far securifiyimprovements and ether necessary repairs at court facilities owned by the eammonweafth or bypo6itica[ subdivisions of the commonwealth; provided further, that expenditures made from this itemshal(includ ,but c~c~t be limned tc~, expend[tures Earths prajecfis iden#ifred thrcaugi~ the court capitalrepair needs assessment database ~s develaped end maintained key the division of capita! assefimanagement and maintenance and reviewed and approved by tl~e administrative office of the trialcaurfi; provided farther, ~~le~~ GOS~S ~~}~~~}I~ X1"{7171 ~~3iS i~~i1'i SE1~II IC1CIt~CIe, but not be Eimited t~, fife costsof e~gin~~ring ar~d ofiher services essential t these projec#s rendered by division ref cap~ta(ass~~rraanagemen~ and maintenance employees or by consultants; provided further, t afi ~mourtfisexpended for divisicsn emp(Qyees may include the salary and s~(ary-re9ated expenses of theseemployees to the e7:tent that they work an or i suppcsrt flf.these projects; provided further, that notless than $125,00O,OOQ shah be made available for casts r~ffihe reccanst~uction or replacement ofcourt facilities located in the city of Lowell; provided furkhe~-, #hat ~~, OO,OgO shall b~ expended for
repairs and renovat€ons fir the district court facility in tl°~e city of N~verhill; provided further, that not
Add. ~
less than $40,000;000 sha[I payfor costs flf the renovation of the superior court builc[ing locafed inthe city o~ Tauntan; pravided ~urfiher, that not leis than $50,000,000 shalE pay for costs of therenovat~€~n of the court facility locafied i n the town n~F Greenf eld; provided further, ghat nc~t (ens than$75 ,000 shall be made avaii~b(e for the completion of the mastee p(an far NorFalk county, includingfc~r the recc~nstructio~ or replacemenfi of caurt facilities located in the tawn of Dedham; providedfurther, that nit less than $~0~,000 shat! be expended far repairs and renov~#inns tc~ the districtcourt faci9ity i~ Leominster; provided fut~her, that nit I~ss than $72,00O,OOQ shall be e~~nded fc~rthe cc~~ts of the renava~ian of the probate and family court building (orated in the pity of Salem;prQVide further, that not Tess than $2 ,C►0~,00~ shall be expe~aded to corrtpiete a m~st~r p4an inNorFolk county which s}~all include the plan fc~r the development anc~ construction cif ~ centralizedNorfolk county courthouse campus in Qedham square and ~~r the planning, design and constructionof such facilities in accc~rdar~ce with said master plan; pravi ed further, that nat less than $10 ,000shall be expended for upgrades a~ the Pitksfield disfirict court; provided further, that 35,OC10,U00shall be ~xper~ded fc~r renovations ar~d construction of the Hampden county hall of justice in t ~ cityafi Springfield; provicEad further, that $140,OQ0 shall be allocated fc~r immediate capitolimprovements to tea exterior flf the dist~~ict courfi bui6ding in the city of Somerville including, bud notlimited t~, pair~ti~g, resurfacing and refurb4shing; provided, that such funds shall be desigr~at~d tc~the di~triet court is~ the city o~ Som~rvilie and shall not be subject to subcl~uses (a) and (b) of clause(viii) of the third par~gr~ph ref s~cfsor~ 9 of chapter 211 ~ cif the General haws; provided fuck er, th~finat less than $500,000 shelf be expended fior cosfis of renavatir~n and expansion of the probate andfamily cr~urt facilities in the town of Barnstable; prQVided further, that not less than $150,000 shall beexpended on the replacement of the rot~f of the district ccaurt building ire the tavvn of Edgartawn;provided further, that not less #han ~,OOQ,04C~ shat[ payfor casts of fihe rencavatian ofi the disfirictcourt building located in the East Boston section ~f the city of Boston; provided further, fihat not lesstE1an $400,000 sha![ be expended for cosh of an addition to the ~i~trict Court facility located in theTown of ~`almauth; provided further, that $350,OOfl be expended for the master plan andengineering a~F a raglans( justice center and intermoda! transp~rk~tion center fio be located can KingStreet €n the city+~f Northampton; provided further, thafi nc~fi Eess than $60,QOO,Q00 sha[! be payf~r.costs of the renovation of the probate and family court building Io~ated ire the city of Salem; andprav6ded Further that nc~t less than X50,000 shall be expended fflr a fe~sibi4ity study to investigate, irrthe city of Cambridge, fihe reiocafion of Middlesex county court and ancillary facilities, fihe cc~~fi ofrehabilitating, renavati~g and improving the existing court and ancillaryfaciiities and the possibilityof entering infic~ a land swap with other parcels in the city r~~ Cambridge to relocate the facilities........$658,350,00
infc~rrr~atton Techrtalogy aivisic~n
1790-2500.. For costs associated with pla~ir~ing and studies, acquisition flf land ancf buildings endi~t~rests therein by purchase, (ease ~~r a term, including any exi nsi~ns, n€~t fio exceed 5Q years, giftcat• other tr~nsfier, car by eminent domain under chapter 79 of the General ~.aws and for thepreparatian ofi plans and spacificatac~ns, repairs, construction, re ovatiar~s, improvements, asset
Add. 25
management and demalition for a data center that wilt be {orated in west~~n Massachusetts ineither Hampden, Hampshire, Berkshire or Fran~Clin county, prt~vided, that the division sha!!, no laterkhan 120 days before any transfer or lease authorized herein, submit fihe costs associated with suchdata center aid a repart therean to fihe inspectar general; provided, further, that the inspectorgeneral shah review the costs and such reuiew shall include an examine#ion afthe methad~~c~gYused for such costs and within 90 days of receipt of the report, fihe inspector genera! shall prepare areview of such costs and ~I~ the review with the division; provided, that the d vis an shall forwardcopies afi fibs inspector general's review tc~ the ous~ and senate committees ors ways are n~~ansand to the chairmen of the joinfi committee on stun administratir~n and regulatory oversight a~ least30 days before any transfer or conveyance; provided, that casts payable firom this item shall include,but not be iir~it~d to, the costs a~' engineering end other services essential to this prajec~ renderedby di~rision cat capifial asset m~r~~ e ertt end main#enancs employees flr cansuEtants; and providedfurkF~er, that amounts expended for division employees may iracl~ade the saE~ry and salary-rebatedexpenses of th~s~ emplc~ye~s tt~ the e~erat that they wank on ar in s~appart of this project; providedfarfiher, that not a ss than $2,000,000 shall be expended for tl~e reBocation of the data center of the~'hief J~astic~ fc~r Adr~ainistrafi~o~ and Management from Bosfion fio Cambridge $78,0~O,OOQ
!' ! • •
40fl0-~0~0.. far casts ~ssocia~ed with planning end studies, dispositions, acquisition of land andbuildings and interests therein by purchase, [ease for a term, including any extensions, not toexceed ~0 years, gift or other transfer, or by eminent domain under chapter 79 of the General ~.aws,far the prep~ratic~n of plans and specifcations, repairs, construction, rene~vatio~s, impraverr~~nts,asset management ar~d demolition fir health and hum~ra services facilities, all as the camrr~'sssiar~erof capita[ asset management and maintenance, in consultation with the secretary of health gradhuman services and the appropriate carr~missior~ers of the dip rtments v~iithirr the exee~tive affice,shall cansid r appropri~fie; provided, that ail juvenile detention facility proj cis approved for designand cc~nstr~actian by the divisifln of capital assefi management and maintenance shall be consistentin priarify and need with a maser plan tQ be develaped by the division of capita6 asset managementar~d maintenance in consultation with the department of youth services; provided further, thatpraj cfis fihat are not included in the master plan may be approved for Banding by the division ofcap►tal asset man~g~mer~fi and m~sntenance if fibs commissioner of capital asset management andmaintenance determines that circumstances follov~ing the deve(c~prnent of the master pla~~ resulted11'1 ~ C~t"fl~?EIIIt1C~ n~BCI ~t~l"~UC1C~iC1S~ ~~t~ ~?f"U~~C~S; prc~vid~d further, that cc~s~s payable from this itemshall include, but not (irr~~fie be to, the cosfis cif engineering and other services essential to theseprojects rendered by division of capital asset rna~agement ar~d maintenance employees or byconsultants; and pravided further, thafi amounts expended for division employees may include thesalary ar~d salary-re~a~ d expenses of these errrpioyees to the exfienfi that they work on car ire supportof these roj~ct~ $80,OOQ,OQO
Board of Library Cc~mrr~issioners
~~~dd . 2 6
EX~~UTIVE QFF(CE FQR PUBLIC SA~ETYAND SECURITYaffice of the Secretary
X000••3500.. Far a grant program to cities and towns to provide funding far the repair, renovation orconstruction of municipal public safetyfacilities, under rules adopted by the executive office ofpublic safety ar~d security k~ased upon the following criteria: ~n assessment o~ fiscal and budgetaryco~strainfis facing the municipality; an analysis of the municipality's proposed budget ar~d financing~f tie repair, renovafiion, ar construction project; the municip~[ity's geed far the project; the benefitsto the municipality that wi(I result fram the project; and an overaEl evaluation ~f the merits of the grantpr~p~sal; provided, that the execukive office may expend not more than 1 per cent of the t~ta(~mc~unt available far the cost of administering this prn~ram; provided further, that not less than$150,000 shill be expended fior the design of a new palice s~atic~n in L keviEie, pravided farther, thatnot less than $1 Q0,000 shall be expended for repairs to the police station in Middleborough;provided further, that not less t{~an $30 ,000 shall be expended far planning and design of ~ newpublic safetyfaciiityfor police and fire r~epartmenfis in Avon; provided further, that not less than~750,OQ0 shall be e~aended for emergency repairs to HVAC systems at fire departmentheadquarters in Stoughton, provided further, tF€afi not less than $15fl,00Q sh~il be expended farr~loc~tic~n c~fi ar imprcavements to the Milford Public Safety Dispatch Center; prQVided further, thatnot less than $1,800,000 shill k~e e~~nc~ d for renov ticsn of the firs departmentfacifity in NarthBraokfield, provided further, that not less fihan $50,000 shall be ex~aended for a fieasibility study~odetermine the cost of cgnstructing a new handicapped-accessible fire station in the town ofLeicester; provided furfiher, that nat less than $8,0OO,OflO shall be expended for car~str c~ion ofr~ew polio stafiion in Lawrence; provided further, thafi rsot less than $2,0OO,OdO shill e expendedfor construction of ~ new police statian in Salisbury; provided further, that riot less than $580,Q00shall be exper~d~d far fire department facilities in RandolpE z ~ oa~'~,~~ t~~~^~ +h.,+ .,,,+ o,,..,. &~,~,~,
~,dd . 2 7
c~~nn nnn c~,,,n ~.,, ,,.,n„~„a~.,~
provided further, that $250,000 shill be expended for the repair/renovation oaf MaiyokeFire DeparCmentfacilities; provided further, that riot less than $1,OOt?,C100 shall be expended forcor~sfiruction of a new police station in the ta~v~ of Mendo ;
providedfurther; that $250,000 be expended fc~r the enhancement and reconstruction cif pafic~ departmentFacilities in the town of So tram tc~n; provided further, that not less ~har~ ,Q0(1,Q00 shill beexpended tc~ c~verk tl~e forme- N~tianal Guard Armory Building ire the Tc~wr~ of Staughton infix ap~~biic safety facility; ~ravided further, that $2,Q00,000 shall be expended for costs associated withimprovements to the firehouses lacated in the Tows of iNeymout ;provided further, that $500,Q00shall b~ exp~r~d~d for r~r~c~vatians and improvements try the public s~fefy building and fire station ~r~the Tcswn of INincheste~-; pravided further, fih~t nofi less tP~a $550,000 shall be expended far a class
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D~par~ment of Fire Services
8000-4900., For costs assr~ciated with planning and studies, dispositians, acquisition of land anrfbuildings and iriferest~ therein by purchase, lease for a term, including ~r~y extensions, not tc~exceed 50 years, gift ~r r~th~r transfer, or by eminent domain under chapter 79 of the Genera! Laws,far the preparation cif Mans end specifcatian~, repairs, construction, renz~vations, improvements,asset mare ement ar~d demolition for a lire training facility in the city afi Springf eld, all as thecommissic~~er of capital asset management and mainfi~nar~ce, in consultation wifih the state firemarshal, sh~l[ c~nsid~r appropri~t~; provided, that costs p~yab(e from #his item shill include, butrto~ limited be tt~, the costs of enc~ineeri~g and ofiher services essential to this project rendered bydivision of capi~ai asset management aid maintenance era~playees or by consultants; ar~d providedfurther, that amaunt~ expended for division emplay~es may include the sa(~ry and salary-relatedexpenses cif fihese emplrayees to the e~fienfi fihat they work on or in support afi thisproject ...................... $10,0OO,OClO
Q~ce of the Chief Medical Exami~►er
Add. 28
8500-10010.. Far costs assaciated with panning and studies, dispositions, acquisition of fend andbuildings and interests therein by purchase, lease for a term, including any extensions, not to
exceed 5q years, gift or otE~er transfer, ar by eminent domain under chapter 79 of the G~nera6 Laws,
for the preparation ofi pfans and- specif€cati~ns, repairs, construction, renavations, improvements,
asset rr~anac~emen#aid demolition, ir~~fuding furnishings and equipment, far regiana! faciiitic~s for
the affice of the chief medical examiner, al! as the commissioner of capital assefi management and
m~intenanc~, i~ cansultatian with fihe chief medical examiner, shall consider ~ prapr ate provided,that casts payable from this item shall include, but not be limited tc~, the costs a~f et~gi~~ering and
other services essential tc~ these projec#s rendered by division of capita! asset management ar c[
maintenance em layees or by consultants; and provided further, the#amounts expanded for divisifln
employees may include the salary and salary-related expenses of these employees to the extent
thafi they work on or is~ support of these projects ............................................. $15,~OO,ti00
Jails arad Correctional facilities
8 00-7500.. For costs associated with planning and studies, for the preparation of plans and
specif cations, repairs, construction, renovatians, imprcavements, asset ma~~agement and
demolition ar~d other capital impravements at department of correction facilities for fibs purpose of
preventing prisoner suicides, including the capita{ improvements as def~il~d ire Appendix A of the
Hayes Report, a summary of o senratians, findings end recommendatia~s afi Lindsay Hayes,
project director of the National Center on Institutians and Alternatives; pro~r~ded, that costs payable
from this item ~h~[I include, but riot be {invited to, fhe costs of engineering end c~~her services
essential to fihese prc~jeets rendered by division of capital easel managem~r~t and maintenance
employees or by cansultants; and provided further, that amounts expended for divisian empiayees
may include the salary and salary-related e~ense~ of these employees to the extent that they wank
an or in support of these prajects .............................:................ $15,UQ,000
EX~CUTI~ff~ QFFICE HQUSING AND EC~}(VrJMIC L7~V~L.~JPM~NTC3epartment of Business and Technology
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EXECUTNE flFFI~E FaR PUBL[C S~FETYAND ~ECUR(TYJails an~f Correctional Facilifies
•~~~ t ~~ I ~' ~ '. r ~.. r -'~ ~ ~r 'f r. ~ E~ ~:- r f' ~' a r id r
A~.d . 2 9
buildings and interests therein by purchase, lease for a term, including any extensions, not toexceed 50 years, gift 4r other transfer, or by eminent domain under chapter 79 of fihe Genera! Lawsand for the prepar~fion cif plans and specifications, repairs, construcfian, renovations,improvements, asset management and demolifiion for sty#e and county jails ar~d correcti~na!facilities; provided, ~hafi alf prc~ject~ approved forfunding under this item by the division of capifia[asset management and maintenance shall b~ consistent in priority and need with a corrections'master plan fo be deveir~ped by the division of capital asst management and mainfienance inconsul~ati~n wifi the department of correction and the Massachusetts Sheriffs Associafiion, endapproved by the secretary of public safety and security and the secretary cif administration anc~~C1at1C~ E~3C~lICIICIt~, ~?U~ CICt~ I11Tiit~d t0, the folSow€ng projects as provided fortherein: apre-releasecenter and regioraa! lack-up facility i~r Barnstable county, capital impre~vements to facilities 'snBerkshire and Brista~ counties, the relocation of the "E911" cammunicafiions center andimprc~uements to the facilities in the county of Dukes County, additional capacity in Essex county,additiar~a[ capacity at the V1/estern Massachusetts F~egiorsal Women's CarrectionaE Center inHarr~p~~r~ caur~ty, the replacem~nfi of modularfacilities in Hampshire county, the consfiruction ofaddifiio~al capacity in Middlesex county, the consfirucfiic~n e~f additiana{ capacity, a sto~•agew~rehause, and parking facility improvements in Norfolk county, capi#al improvements to facilities i~Plymouth county, capit~i improvements to facilities in Suffolk county and the construction of
additian~l c~p~city irr Warcest r county; provided furfih r, t6~at projects thafi are not included ire themaster plan may be apprr►ved for funding by the division of capifial asset management andmaintenance if the commissioner of capital asset management and maintenance determines thatcircurr~stances fallowing the development of the master p9an resuEted in a cc~mp~lling need forfunding the projects; provided furkher, that eosfis payable from this item include, but are not limitedta, the casts cif engineering and other services essential to fihe~e projects rendered by division ofcapita! asset management and maintenance employees Qr by c~nsuitants; and provided further,fihat amounts expencl~d for division emp[ayees may include the salary and salary-rebated e easesofi these mployes fiQ the ext~r~t that they work on ~r in support ~f th~s~ projects; provided furfiher,thafi not less than $1 ~O,OOO,OOQ shall be expended fir cosh associated with planning artd studies,preparation of plans and specifications, repairs, construction, renovations, improvements, assetmanagement and demo(itinr~ end other capital imprc~vemenfs at the Middlesex Sheriffs micefacilities to address severe and persistenfi overcrowding and sfia~f firaining needs and far the castsassociated with planning and studies, preparation of plans and specifications, acquisifiian of landand buildings therein by purchase for canstructic~n of a jai6 facilitywifih adequate capacity ire thesaufil~ern portion of Middlesex county to replace the Mi~d(esexjai6 in the city Qf
r ~w- '~ 1 !~1 fit!
4330-9999.. For the purchase or lease of equipment or Other items for a prograrro of intermediatesanctir~ns as authorized in item 0330-8968 o~'sec~ion 2 afchapter 12 Qfthe acts of 1996 inciudir~g,buff not limified ~a, fihe purchase of mobile subs~ar~ce abuse testing vans end afil~er drug testingequipment, the acquisition and build out of leased crr purchased space for day repa~ting centers,including modular units, and the purchase of equipmenfi thaf may qu~li~jr as alternatives to
Add. 30
incarceratian; provided, thaf no funds appropriated in this item shall be expended for the costs ofstate personne6 or cc~nfiracted persgnnel; provided further, that not more than ~ per cent of the fundsauthorized herein shaid be expended for tl~e adminis~ratic~n of any projects funded herein; arsdpravided fiur~her, that the exec~fiive director of the off ce cif cammunifiy carrecfiions shelf ~u~mit arepack detailing ar~y such administrative expenditures tc~ the house and senate committee 4r~ waysand means ................:..................................... $~Q,OQ0,000
Section 98, (a} As used in this section, "state entities" means the commonwealth, state authoritiesas defined in section 1 of chapter 29 and other state er~titiss with respc~nsibilityfor managing andov~rseeir~g pubic funds.(b} It shad{ be fihe dut~r of the board to promofie transparency, public accr~unfiability and adherence tobest practices by alE state entities v~ith respect to investments, harrowing or ether fnancialtransactions made or enured inta by stag entities and involy€rig public funs. The board shall makean annual wrifiter~ report tc, the secretary of adminisfiration ar~d finance, the state treasurer, the stateauditor, fihe pause and senate committees on ways and means and the chairpersons of the jointcamrnittee on bonding, capital expenditures ar~d state assets with respecttc~ its findings regardinginvestments, borrc~w[ng and other financial transactions carried Qut by state entities and Ets activitiestc~ promote transparency, public accountability and best practices with respect th~retc~.(c} In order to carry oufi its duty, fihe board may:t°i }adopt regulations or guidelines requiring sate entities to report, adopt appropriate policies, andadhere fic~ hest practices with respect tc~ investments, borrowing and afiher financial transactions;(2) make recommendations to state entifiies or sfiate officers and propane [egislativ~ changes fi~imprQV~ the management of public funds;(3) employ staff and engage professionals to review and advise it can finar~cia[ transactions enfieredi11~C3 ~l J S~c'~t~: Lf1~i~i8S, and
(4~) conduct oversight hearings with aspect to investment, borrawing ar~d otherf n~nciaitransactions made or entered into by state entities.
S~GTIC)N 4. The first sentence c~fi subsection (e) c~fi sectian 38C of chapter 7 of the General Laws,~s appearing in the 2Q06 afficia& edition, is hereby am nd~d key adding the following wflr s:- ;car(iv} the contract is for the d~niaiition of buildings.
S~CTIC3~ .Chapter 29 0~ fihe Genera! Laws is hereby amended key inserting ~f~er secfii an 2~CXXthe ~a(lowing section:-
Sectian 2`~'YYY. There shall be established and set up ors the boaks of the cc~mmc~nwealth a separatefund, tc~ be knawn as the Courts Capital Project Fund, hereinafter in this sect6~n referred to ~s thefund. The fund shall be credited: (i) the portion of any net cash proceeds from the conveyance, [ease
Add. 31
or other disposition 4f any surplus court facilities uacated and determined to be surplus by thecorr~missioner of the division of capita! asset management and maintenance as a result of or inanticipation of the construcfiic~n of new cr~urt facilities or the cansalidation of court facilitmes in thecities of Cambridge, I~a~vell, Salem end Worcester; (ii) any apprc~priat~ons; (iii) band proceeds; or{iv) ether monies authorized by the general caurt and specifically designated to be credited thereto.The comptro(1er shall disburse amounts in fihe fund at the directiar~ ~~the secretary of administration~r~~ fiir~ance, wif out f€~~fiher appropria#ion, for the purpose of paying costs cif, or payir~~ dawn any...pardon of the debt incurred to pay costs related to the acquisifiion, temporary leasing or- theconstrucfiion of any replacement court facilities. The inspector general of the commonwealth sha[1make an annual aversight inquiry and report on fihe Capital Courts Project fund and itsdisburserr~ents. 5aic~ repart shall be prcavided to the clerks of the house of representatives andsenate, chairs of house and senate committees on ways and means and chairs of fihe j~infic4mrnittee on bonding, capital expend'[fiur~s, and state assets.
SECTION ~. Section 38C ~f ch~pt~r 29 of the General ~avvs, as so appearing, is hereby amendeddry adding the following sentence:- Scheduf~d, periodic payments to be made by the ccmma~wealthpursuant to ~r~y such contract in existence err August 1, 20 8 ar any such c~ntrac~ r~(ated tc~ bindsar pates of fihe cammc~r~wealth which sha6i be entered into by the sfiate treasurer after August 1,20 8 sh~il canstitute general abfigations of the carr~monwealth to which the full faith ar~d credit of thecommonwealth shall hive been pledged.
SECTION 7. C3~~se (() ofi secfiic~n 4 cif chapter 81 A cif the general Laws, as so app~arinq, is herebyamended by adding the folEowing wards:- provided, hawev~r, that fihe authority shall issue sert~~i-ann~aal reprarks tg the secretary of administration and finance, the hawse and s~nafie comrr~i~tees onways and means, the joint cammittee on transportation and the }Dint committee an banding, capital@X~JGCICI1~lli"~5 ~Y7~I St~~E' c~SSE'~Sy detailing the f nancial transactians and revenues assocr~ted with thesafe, concession ar lease of real property held in the name of or under the control of the aufiharifiy,whether by p~reha~e or otherwise, and any fransaetions relating to rea( property currently pe~~din ;and provided fur#her, that the semi-annual repart shall ine[ude the current mark-et values of fhe realproperties related to the transactions.
~~CTI~~ 9. Sectia 9 of chapter 164 of fhe acts of 1851 is hereby re}~ealed.
Add. 32
i ~'' # ! .!f f ~~' ~ ~ f ~ ~ ! i ~ Wit' ~ ~ ~ f
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~EC3BON '~ 3. Section 15 of chapter 463 of the acts of 2004 is hereby amended by striking aut the
lash sentence and inserting in place thereof the tollawing sentence:- Any remaining proceeds shaf!
be used to reduce arsy incurred indebtedness of the Essex North Shore Agriculfiura9 end Technical
School District tc~ the farmer municipa(itie~ of the North Shore Vocatianal Regional Schoe~l District
in accordance with the capital cost allocation provisians of said district's regianal agreement.
SECTIOPI 14. Said chapter463 is herebyfurtheramended by striking out section 11 and inserting
in place fihereof the following:-
Sectifln 11. The district shall be considered an eligible institution for financing assistance pravided
by the heaith and educafiional faci4ities authority established under chapter 614 of the acts of 1968.
The school committee shill establish and mair~~a'sn a capital reserve fund for the purpose of
financing necessaryfaciailymaintcnance and capital imprc~vemenfis. The c~pifi~! reserve fund shall
be subject to the limits on stabilization finds in section 16G 1/2 of chapter 71 ofithe General Laws,
Except as provided in this sectian, fihe U~ner~{ Laws regulating borrowing by regional districts and
limitations are borrowing by regional districts, including but nat limi#ed to chapter 70B ~f the General
Laws and clauses (e}, (g), and (n} of section 16 of chapter 71 of the General Laws, shall apply to the
district. The Essex North Shore agricultural ar~d Tecf~nica{ Schoal District may issue binds far the
canstructir~g, recons#ructir~g, equipping school buildings and other facif~ti~s related thereto for a
term riot #o exc~t;d thirty years.
ETI~N °(5. Sectian 1 ~ of chapter 27 afi the acts of 2007 is hereby arr~er~ded by ~tril~ing out
subsection (a) end inser~inc~ is~ pBace thereat the fo[lowir~g subsectiar~.-
{a)The state fireasurer may, upon r~quesfi of the governor, issue and sell refunding bands of the
commanwea~th in an amount tc~ be specified by the governor from time to time for the purpfls~ of
paying, at maturity Qr upan ~cce6er~tian car redemptiar~, any bands fihen outstanding and issued by
an en#ity other than the commanweafth under section 391 of chapter 7 90 of the acts e~f 1982, chapter
42~ of the acts of 199 ~ ,section 7 of chapfie~ 16 of the acfi~ of ~ 999 or sectiar~ 6 of chapter 53 of fihe
acts ~f '~ 999, or issued by the city of Chelsea under chapter 40D Qf the General Laws to finance
Add. 33
costs of the information technology center in said city, including tie payment of any redemption
premium thereon and any interest accrued or to accrue to the date of maturity; acceleration arredemptian of these bonds. T6~e stag treasurer shall nc~t issue any refunding binds unless he findsthat tie present value, discounted afi the rate that he considers appropriafi~, ofithe principal ar~dinterest payments due on the refunding bonds is less than the present value, discaunted at that rate,
of the principal and interest payments tt~ be paid, firot~ the prflceeds of these refunding bonds and
inu~s~ment earrair~gs thereon, ran the bonds to be refunded, or u~[ess he defi~rmines, in his soi
discretion, fih~fi doing sca i~ advi~a~l~ tt~ subsfiitufie fixed-rate bands for variable-rate bands car 1 form
of variable-rats bands for another. These refunding bands r ay be issued at such lime before the
maturity, acceleratian or redemption of the bonds to be refunded thereby that the state treasurer,with the approval Qfthe gaverr~or, c~nsider~ advisable. Tire issuance ofthes~ bonds, the security
th~refare, the maturities and afiher details thereof, the rights of tie h iders thereof and the rights,duties and obligations of the commonwealth with respect thereto shall be governed by chapter ~9 of
the General Laws relating t4 the issuance of bonds by the commonwealth, insofar as these
previsions maybe apprapriate therefor. Sn connectian with ar~y issuance ~f refunding k~onds under
this seetian, the secretary of administration and finance and other officers of fihe car~m~nwea6~h
whey are parties to the contract for financial assistance, lease or other agreements related to the
bonds being refa~nded and fihe state treasurer may enter into amendments to the car~tract, lease or
other agreements and any ether docurn~r~ts that they consider necessary or desirable to effectuatethe issuance of the bonds. WithQ€~t limiting the generality ofithis secfiion, the prav~sians of section 49
of said c~rapter 29 applicable to sinking funds established with trustees shall apply to the deposif ofrefunding bond proceeds with a trustee, except that these proceeds shall be held far the benefit of
the ~olclers of tF~~ bonds ~o be refunded thereby.
SECTIf~~i 'i 6. Ta meet the expenditures necessary in c~rryir~g oufi secfii~n 2A, the sfiate treasurer
sha~9, upon request ~f t~se gavernor, issue and sell bonds of tine commanwealth in an ama nt'Ca b~
specife~d by the gc~ver-narfrom time t~ time buf not exceeding, in fibs aggregate, $365,000,00 .All
such bands issued by the e~mmanvvealth shall be designated on theirf~ce, Capital improvements
Lean Act of 2008, and shall be issued for a maximum term of years, not exceeding 10 years, as the
governor may recommend to the general court under section 3 of Arfiicle LXII of the Amendments tothe Constitution. The bonds shall be payable not layer than June 30, 2Q23. All interest end payments
on accaunt cif principal can these obiigafi€fins shalE be payable from the General Fund. Bonds and
interest thereon issued under this section shall, notwithstanding any other provisions of this act, be
general obligations of the commonwealth.
SE~~'6 ~1 'i7. To meet fibs expenditures rsecessary in carrying out sectian 2B, the state treasurer
shalk, upon revues± of the overnar, issue and self bonds of the commonwealth in ~n amount to be
specified y the gavernor firom fiit~~ to time but nc~t exceeding, in the aggregate, $451,800,OQfl, Ali
s~.~ch bonds iss€~ed by the cammcanwe.afth shall be designafied on their face, Capital lmprovem~ntsLoan Act of 2008, and shall be issued fc~r a maximum term of years, not exceeding ~U years, as thegovernor may recommend to the general court under section 3 of /Orticle LXII of the Amendments to
Add, 34
the Constitution. The bonds shat[ be payable not later than June 30, 2033. Ail interest and payments
on account of principal on these ob6ig~tions shall bs p~yabi~ from the General Fund. Bonds and
interest theree~n issued under this section steal[, C7OtW(~~3Sfi~t1t~ltl~ ~i~JI (~t~~~` pi'pViSIOt~S (7~ ~~liS ~C~, be
general obligafiions flf the cammonw~;alth.
SE~TI~}~ '[ .1"t~ meet the expenditures r~ecessary in carrying out section 2C, the stag treasurer
shall, upnn request of the governor, issue and sell bonds of the co►~nmonwealth ire an amount to b~specified bythe governor Fram time tc~ time but not exceeding, in the aggregate, $~,973,005,OQ0.
All such bonds issued by the commonwealth shall be designated on their face, Capital lmprovemer~t
Act of 2008, and sha([ be issued for a maximum term of years, not exceeding 30 years, as the
governor may reeamrri nd to the g~n~:ra6 court under sectian 3 e~f Article LXII cif the Amendments fia
the ~anstit~tiQn. The bonds shelf e payable nat later than June 30, 2043. Ai( interest and payments
a~a accounfi cif principal on these obligations shill be payable from the General Fund. Bonds and
interest thereon issued under this section shall, notwithstanding any oth~;r pravisians o~ this act, be
general obligatians ofithe commc~r~wealth.
~CT~~N ~# 9. To meet the expenditures necessary in carrying out section 2D, the stag treasurer
shall, upon request ofi the governe~r, issue and sell bonds of the commnnwea3th in ~n amount to be
specified by the goverr~ar frtam time to time but not exuding, in the aggregate, $560,0OO;OQO. AI!
such bonds issued by the cammonvvealth shall be designafied an their face, Capital Improvement
Act of 2008, and shag! be issued fo►- a maximum berm of years, not exceeding ~0 years, as tf~egovernor may recommend to the general courk under section 3 of ArticEe LXI! of the Amendments try
the Consfiitufiiar~, The bonds shal6 be payable neat (after than June 30, 2048. AI( interest and payments
an accaunt of principal on these abligatians shelf be payable from the General Fund. Bonds and
interest thereon issued under this section shall, notwithstanding any other provisions of this act, be
general abligations ofthe commonwealth.
SECTBON ~0. {a) In order to facilitate fihe reuse of the properties ider~ti~ed in sub5ectian (b}, upon ~
determination by the commissianer that no state agency car executive office has a current or
foreseeable need far the real praperly, the commissioner cif capifal asset management and
maintenance may: (7) subject to secfiions 40E fio 4t~F'I2, incEusive, and sectians 401 and 40J of
chapter 7 of the General Lavus, car►vey, (ease for a tern r at to exceed 99 years, transferorotE~erwise dispose of anyfacility Qr real property identified in subsection (b) to the hosfi municipality
for a direct public use as d~fir~e in section 40F of the Ger~~ral Laws; provided, however, that said
9~ost municipality steal[ have n~ Iris than ~0 days to accept fihe commissioner's r~~Fer ~o acquire tf~e
property, or (2} upon a refusal cif the host municipality of the commissioner's affer pursuant tra cause
1 and subject to sectiar~s 40~ to 40 '/x, inclusive, and sections 40H to 4~J, inclusive, a chapter 7 of
fihe Gener~k Laws, the commissioner of fhe division of capital asset management and maintenance
may canvey, lease fc~r a term not to exceed 99 years, transfer or atherwise disease aft any facility car
real property identified in subsection (b).
(b}This section sha1E apply tt~ the fall€~wing properties:---~ (i) any court facilities vacated and
Add. 35
defiermined to be surplus by the cammissir~ner o~ capital asset management and Er~aintenance and
the chief j~astiee for administration and management as a result of or in anticipation of the
cr~nstruction o~f new courfi facilities or the consalidatic~n of court facilities in the city of Lowe[I, but the
transfer, sale, lease or ether dispasition shall be in acc~~•dance with chapter 290 of the acfis ~f 2004
as amended by sections 59 through 70 cif chapter 7 22 of the acts ofi 2006; ~i~) any courf facilities
vacated and determined to be surplus by the camrr~sssioner t~f capifial asset management and
maintenance and fih chief justice far administration and management as a resuff of ar in
antici~aatic~n of fihe consfirucfiican of new cry r~ facilities or the cansol~dation of court facilities in the city
of Cambridge; viii) any court facilities vacated and determined to be surplus by the commissioner ~f
capital asset management end maintenance anc~ the chief justice for administration and
management as a result of r~r ire anticip~fian of the cnnstructic~n ~f r~ew court facilities or tha
consofidatic~n of caurk facilit€es in the city €~f Woreester; and (iv) any court faci€hies v cafied and
det~r~ained to be surplus by the commissioner of capital asset management and maintenance and
the chief justice for administration and management as a result of or in antici atian of the
canstruction of new court facilities ar the cor~saiidation of cr~urt facilities in the city of Salim,
The exact boundaries ~f each p~rce6 conveyed, 9eased, firar~sferred ar otherwise diseased of
pursuant tc~ this sectsor~ shall be determined bythe cammissioner of the division of capita! asset
management and maintenance after completion of a survey. The consideration fog said
cc~r~v yanee, lease transfer or other disposition shall be the full end fair m~rk~t value cif said parcel
as determined by fihe comrnissianer of the division of capita! asset management and maintenance
pursuant to 1 or more i~dapendent professional appraisals. This parse[ shaft be canveyetf by deed
without warranties or representations by the camra~onwealth.
(c} Notwiths#aiding any general ar special law to fibs contrary, tine grantee or lessee of any properky
identified in subsecfiian (b}shall be respc~nsibl~ for al( casts and expenses, including but not limited
ta, casts associated with any engineering, surveys, appraisals, and deed preparation related to the
~~nveyance aufihorized pursuant to this act as such costs may be determined by.fihe cornmissic~ner
cif the division of capita(asse~ mar~agernent end maintenance.
(d) Nofiwithstanding ar~y general or special !aw to the contrary, the inspecfior general shat! review
and approve the appraisal required p+arsuant to subsection {b}. The inspector general shall prepare
a report of his reviev~r of the methadolr~gy utilized for the appraisal and shall file the report with the
commissioner ofithe division of capita(assefi management and maintenance, the l~o~se and senate
committees on ways and means and the joint committee on bonding, capital expenditures and state
assets. The commissioner of the division of capita6 asset management and maintenance shalE, 30
days before the execufiion cif any canveyar~ce, lease, firansfer or ether disposition pursuant to this
section, or any sub~equer~t amendment theretcs, submit the proposed canveyar~ce, lease, transfer ar
ofiher disposifiic~n or amendment and a report therear~ to the inspector general for his review and
commer~~. The inspector general s~ral3 issue his review and comrrient within 15 days of receipt of the
prc~pc~sed conveyance or amendmertfi, The commissioner of the division of capitaE asset
management and maintenance shall submit the prapased car~v~yance or amendment, ar~d fi1~e
reports end the c~arr~ments of the inspector general; if any, to the house and senate committees on
ways and means and the jairst comr°nittee on bonding, capital e enditures and state assets at least
Add. 36
15 days before executic~r~ of the conveya~ee.
{e) Natwit stanc4ing any genera€ or spec€a! law to the contrary, the net cash proceeds of the sale,
lease, tr~nsf~r car other dispositic~r~ of ar►y court facility identif ed in stabsection (b}shall be depositedinto fibs Courts Capita( Praject Fund established pursuant to section 2l'~'Y of chapter 29 of ~h~
General Laws. Far purposes of this paragraph, the term "net cash proceeds"shall mean ~6!
payments made to the commonwealth as and when paid, less any tr~nsactiQn-related e~snses
and expenses incurred in cannectian with the custody of the property by the division of capital asst
management and maintenance including, but r at limited to, costs associated with the disposal car
pre-develc~pme~t of the property firom which the funds originated incEuding, but rant limited to,
appraisa6s, surveys, site ev~ivafiior~, sifie prep~ratian, plans, recordings, smart growth review end
fe~sibil~ty and other marketing sfudies and ~r~gr rather expenses reEating to fhe d°asp~s~l car prajec~
m~nag~ment services in cc~nnectian wifih any reuse ar redevelopment ~f the property.
ECTIf~N 21. (a) Ta carry out the purposes of items 1102-2008, 17 02-56Q0, 4000-2fl20, 8004-
~.~oa ~n~ s~oo-~ o00 ~~ ~~~t~o~ ~ ~~,~ ~t~m s~oo-s~oa ~~ ~~ct~o~, ~, the commissioner of capitalasst many em~nt ar~d maintenance rnay, notwithstanding sections DOE to 401, inclusive, of
chapter 7 cif the ~er~eral Laws car any ether genera[ or spscia! law to the contrary, but subject to this
subsection, ~cquir~y N~ pUCV~US[::1 lease ar leaseback for a term, including any exfensians, not to
exceed 50 years, gift or other transfer, or by eminent domain under ch~pt~r 79 of the General Lanus,
airy interests inland and bu€Idings cansidered necessary by the cc~mmissior~er to carry out the
purposes of this aet including, but not Iimited to, easements for drainage, access, utilities and
environmental mifiigation and may grant and retain such easemenfi~ and infierests as considered
necessary by the come~nissianer to carry aufi the pur~pc~ses o~F this act.
{b) The commissioner shat€ solicit presposals for anyfacility acquisitian through requests fior
proposals. Each request far propasals shall, at a minimum, include: (1 ~ a description of the facility
for which proposals are sought; (2~ a statement as to whether the commissioner seeks to purchase
or lease the facilities; (3} a statement ~s to whether the commissioner seeks to acquire improved ar
unimproved land, buildings ar~d interests therein; (4) a statement as to whether the selected
proposer steal[ be required ~o undertake the design, consfiruction, renovation, reconstruct►on,alteration, impravement, demolition, expansion or management of a new or existing facility; (5}the
proposed cc~nfractual fierms end condifiions, some of which may b~ considered mandatory or
nonnegatiable, (6}the eva[u~tion criteria that wil! be utilized by fibs cc~mmissic~ner; (7) fibs films and
date for receipt of proposals; {8) the address of the affice to which propas~is sell be delivered;
and (8) such other matters as maybe determined by the cammissioner. Pubaic native t~f each
req~~st fc~r proposals steal[ be published at least 3 weeks before the time specified in the notice far
the receipt of proposals in the central register published by the stafie secretary. At the opening o~ the
proposa6s, the commissioner sha![ prepare a reg'st~r of prc~pc~sals which sha![ include fibs name of
each praposer. The register of proposals steal[ be open for public inspection. Natwithstanding any
general or special law t~ the contrary, tantil the campl~tion of fibs se6ecfiior~ process, fibs confients of
the proposals and the selection process shall not be disclosed to competing proposers and shall
eat be public documenfis.
Add. 37
{c) Any design, construction, renovation, reconstrucfiion, aBteratic~n, improvement, demolition,
e ansion Qr management cif a facility ur~dertake~r under this section shall b~ subject to chapters 7,
30 and 149 c~fi the General Laws and any other geneal or special !aw or regulatiart governi ng the
design, canstructian, renavafiion, reconstruc~~on, altera~i~n, improvement, demolition, expansions or
n~an~gemen~ of real or personal prraperty by the commonwealth.
~~CTOON ~. The information tec}~nology ddvisic~n, in consultation with the operational services
divisi€~n, shaEf require that the pracurement of se~°vices and eq~ipmenfi fiunded under iterr~ 1790-
30C10 of sectian 3 shill corrr~p(ywith the prvcuremer~fi policies fiieci by the sate comptroller under
section 13 of chapter 27 cif the acts of 20(?7 to ensure an open and fair competitive process.
Executive agencies that have ar seek funding under said item 179 -3000 shall submit to the
info~rnat€on technalogy division, a~ intervals to be defiermined by the division, documer~tatian and
deliverables necessary tQ enable it to oversee, ascertain and evaluate project management, status,
progress, performance and eypenditures. The information technalogy division shall specify this
c~acurri~;ntatic~n and deiiv~r~bies, which may include, without fir~it~tinn, project management plans
~r~d r~et~odo(ogy, fiechnalogy designs and specifieafiians, ~cc~untings of amounts expended ar fia
be expended #ar al! g€~ods ar~d services including, uvithout limi#~tion, hardware, software, c6n~u[tant
services end personnel, an assessment o~whet er the project is wit3~in budget and ran schedule for
c;omp~eti~n, an exp[~t~ation of any deviafiions in compietior~ seh~du(es and funding needs fram those
that were originally established fflr the projecfis, pro9ect pans anci c~fiher docurr~er~t deliverables. The
infarmation technology division may make funding ar continued funding~for executive department
agency projects contingent upon its approval of these dacumenfatic~n and deliverables.
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Add. 38
SECTIC9N 24. Section 23 shall take effect 9Q days after the effect€ve date Qf this act.
S~~~"1~~ 25. The secretary of administration and finance, shill submit a report on the progress
and ail expenditures related to the projects specified in this act and any ot4~er projects funded
through the autharizatir~ns in this act to the clerks of the senafie and pause of representatives, the.......
chairs afthe senate ar~d house committees an vrays and means, and the senate and house chairs
of the ja~int committee are b€~nding, capital expenditures and s~~te assets. The re~ork shall include,
but nat be limited to: the total amount appropr6ated for each praject, the total estimated cost afi each
project, the amount expended ft~r the planning and design of each project up to fhe time the report is
flied, the amount expended ~n canstruction of each praject up to fhe time the report is fiCed, the t~ta(
amaun~ currently expended ~n each ~rcaject, the estimated lifetime maintenance schedule and cosf
of each project, the original estimated completian date of each project, the current anticipated
campletion date of each project and, if tie project hay been de-authorized, the reason for end date
of de-authorization. The report sh~l( be submstted are Jung 30 and December 31 of each year far a
periad of 8 years afi~er tie eff~ctiv~ date of Phis act.
S~CT60f~ 6, (a) Nt~twithst~nding any general or special law to the contrary, fihe Massachusetts
Turnpike Authc~rifiy may issue bonds fc~r t~~ purpose of refunding up to $334,9QO,Q00 aggregate
principa(amc~unt of oufstanding metropolitan highway system bonds of the authority that are related
to certain interest rate swaptions previouslyentered iota by the authority. Any bands sc~ issued shill
be subject tc~ the pravisic~ns of chapter 81 A cif the Genera[ Laws and the terms of any applicable
trusfi agreerrienfi entered into by fihe aufihority ar~d in effect as of fihe efFective date of this section.
(b} the authority certi#ies in writing to the secretary of administration and finance that it has
received notice of exercise from fihe ca~r~terparty #o any interest rate swaptians not exercised by the
ct~unterparty before fhe ~ffe~tive date of this acf, then on and after October 1, 2008, the authority
may issue bonds for the purpose ref refunding up ~c~ $465, OO,Q00 aggregate principal amount of
outstanding me~ropalitan hig~away system bonds of the authority that are related to such swaptions.
Ar~y bonds sca issued shall be subject to chapter 81 A of the ~ener~l Laws and the terms of any
applicab6e trust ~greemer~t entered into by the authority ar€d in effect as o~the effective date afthis
secfiio,
(c} The commonwealth, acting by and through the secretary of administration and finance with the
approval of the governor, ~pt~n the request cif the authority, may provide credit support as described
in Phis paragraph, The cammonwealth may pravide funds to the autharity in eider to enable fiF~e
aut arity to pay the principal c~~ ~r in~eresfi on bands cif the authority issued in accardance with this
section or to pay any reimbursement obliga~ior~ owing to the pravi er of insurance or other creditor
liquidity suppo►~ far such bonds. Airy agreement entered into by the camrrdonwealth and the authorityunder this paragraph shill require the aufl~ority to submit anr~ua( reports, within 120 days after the
end cif each f sc~f year of tie authority, fio the secretary of admir~isfiration and f nance, the state
treasurer, tie state auditor, fihe chaieper~ans of the house and senate committees an ways and
mews, the chairpersons afthejoint committee on transportation and the chairpersons afthe faint
Add. 39
committee on bonding, capital expenditures and sfiate assets detailing the fiscal condition of the
authority and its progress in eliminating the need ft~r credit support from the commonwealth. Any
such agreement shall cant~in such other terms, canc{itic~ns and covenants of the commnnvvealth as
the secretary of a~ministratior~ and fin~~ce, with the approval of the governor, may determine ~o be
necessary or appropriate; prc~uided, hawever, #hat a[1 obBigatians of the commc~nwe~lth under this
paragraph shall be subject to appropriation and any such agreement shall recipe that the full faith
and credit of the commonwealth are nafi pledged in support of the ob6igations of the commonwealth
hereunder; and provided fiur~her, t€~at ar~y such agre~me~t shall provide that the authority shill be
obligated to reimburse the commonwealth fc~r any payments made under such agreement on such
terms and conditions as the parties to the agreement sha61 approve.
SE TIC~~t 7, (a}The comm~nwe~lth, acting by and through the secretary of the executive once for
~ minist:-afion and fir~anc~ with the approval o~the governor, upon the request ref the Massac us t~s
Turnpike Authority, may gu~r~nfiee X61 ar ~ porfiion o~ payment obligations ~f the ~ufharity payable in
c;onnectis~n with hedging transactians entered into by the authority before the effective date flf this
act ~nrith respect to mefiropoiifan highway system bands cal the authority; provided, f~awever, that the
~ut~c~rity certifies ~~ writing to the secretary ~f administration and finance that it has received nr~tice
firc~m the caunfierparty under any such hedging transactions that it intends to exercise its rights of
termanatian under the counterp~rt~~s agreement with the authority or that circumstances have
occurred that would al6ow it to terminate its agreement with the authority in the absence of sp~cifi~d
rer~edia! ~ctian bythe authority. The secretary of administration and finance, with the approval of
the gov~~nor and without further authorization, may approve the 'Form, terms and cc~nditic~ns of the
guaranty authorized by t~iis subsection, inc4udir~g without lirraitation, the ~uratir~n afithe guaranty and
the spe~i~c obligat6ons and aggregate amount to be guaranteed by the commonvrealth, and may
execute and deliver, nn behalf of the commonwealth, such guaranty and ar~y related agreements.
with car fir the benefit ~f the caunterparties ce~ntaining such terms, conditions and covenanfis of the
commonwealth as the secretary a~ administration and finance shall approve. The authority and the
cornmonvveaEth, acting by and through the secretary of adminisfiration and finance, may enter into a
reimbursement agreement providing for repayment to the commonwealth of any amounts paid
wider the guaranty aid containing such terms and cc~nditic~ns as tie parties thereto shall approve,
Any g~araratee Qr agreement enfered into by the commonwealth and the authorifiy under this
paragraph sriall require the authority tc~ submit annual reports, within 120 days a~Cer the end o~ each
fiscal year of fihe authority, fic~ fibs secretary of administration and f r~ance, the stafie treasurer, the
sfiate audifior, fibs ch~irper~ans of the house and senate cc~mmi~tees on ways and means, the
chairpersons of tine jant committee on fransportatian and the chairpersons of the joint comm'stEee can
bonding, capital expendifiur~s and state assts detailing the fiscal condition oft e ~uthc~rityand its
progress ire efirr~in~ting the need for the commonwealth's uarant or ether credit su pc~r~. Unless
a# erwise presvided by the secretary of the executive off ce of administration and finance ire tie
terms caf fibs guarantor, tine full faith and credit t~f the commanw~alt shaCl be pledged for the guaranty
provided fir in this subsection. i~the autharityfails or is otherwise unable fo p~ywhen due any
amac~nt guaranfieed that is secured by a piedg~ of fibs full fi lth and credit afi the c~mmQnwealfih
Add. 40
pursuant to this section, the commanwe~(th shall pay such amount upon notice to the state treasurer
a#any time on ar after the due date thereof.
{b}Within 7 5 days of the date of the written certification referred tc~ in subsecfiian (a), the chairman
or executive director of the authority and fhe secretary ofi administratiar~ and finance shall jointlycertifjr in wri~ir~g tc~ the chairpersans of tie house end senate committees on ways and means, the
chairpersons of the faint cc~mrrrittee on transportation, and the chairpersons of the joint committee
an banding, capifial ~xpenditur~s and state assets that, in their judgment, na feasibly aRt~rnatives fo
a pledge r~fith~ cammonwealth's full #with and credifi as pr~v~ded ire subsection (~}exist, and shall
jointly repar~ tc~ the chairpersans of the house and senate committees on ways and means, the
chairpersons of the joint comr~nitt~e on transportation, and the chairpersans cif the joint committee
on bonding, capital expendifures and state assets on ail efforts ur~dertaker~ to avoid the need for a
full faith and credit guarantee of the camman~~vea9fih under subsection (a}.
SEGTI(7M11 29. The state treasurer end a((quasi-public entifiies and independent autf~vrifiies shall
submit bia~~uai repar~s on their borrowing practices to the secretary of administratian and finance,
the state auditor, the chair of the finance advisorgr board established in sectian 97 of chapter 6 Qf
the Genera[ Laws, the chairpersans of the senate and house cammit~~es on ways and means and
the senate and house chairs of the joint cc~mrnittee on bonding, capital expendit~.~res and sfiate
assets. The report shall be due an April 30 and October 31 in each calendar year and shah( include
a[I transactions enured into, other than Exec!-rate borrowing, during the 6 months immediately
preceding fih~ filing affihe report. The report shall include: (1) ~ iist of all transactions rei~fec( fic~
derivafiive ~nancia! producfis; (2}the terms end condifiions of each derivative f nanciai product
transaction; (3}the parties involved in negotiating each derivative financial product transaction; (4)
copies of all agreements enteeed intro between the parties relafiive to derivative financial prad~ct
transaction; ~5) the financial impacfi cif each transac~mQn including, but nc~t iirrai~ed to, the infier~st
rates, fluctuation in interest rates ar~d payments associated therewith; and (6} a written ratic~naie for
the determi~atian ~~ enter into any such transaction. The report shill be signed under oath by the
state treasurer or by the chief financial officer afi the quasi-public entity ar irrde ender~t authority
ding the repr~rt. For purpc~s~s cif this sectian, "derivafiive financial prnducts"shall mean financial
instruments with values derived fram or based upan the value of ath~r assets ar on the ievel cif an
interest rate index includirsg, but net limited tc~, a call option on a band, an interest rate swaptions,
caps, ~Ic~ors, ccall~rs, inverse floaters, auctian rate securities or any other financial transaction other
than fxed-rate, long-term borrowing.
Add. 41
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40J Qf chapter 7 oaf the Ger~er~f Laws, the comm'sssior~~r of capital asst s~anagement andmaintenance may, ICI CC?~1S p~afil~Cl V111~I1 ~~IB ~CIt~'iltllB~P'~~IV~ O'FFGe O~~I18 ~I'IaI CE~l1t`~, ie~s~ to the city of
Add. 42
(~orthampt~n, for a terrt~, including extensions, nat to exceed 99 years; a certain parcel of land onthe west side o~ Gathic strut in the city of Rorthampton containing approximately .47 acres, saidparcel being shown on a plan orgy file wifi~ the divisiar~ of capitaE asset management andmaintenance. The exacfi b~undari~s of fihe parcel steal! be ~efiermined by the commissioner basedupon a survey prepared in ~accorclance with subsection (e}.
~F~) A lease agreement entered into by the commc~nweaEth pursuant to this section shall provide thattl~e parc~(shali b~ used solelyfor municipal and public parking fiaci(ifiies and a~c~ssary usesdarectly rel~fed to the lessee's purposes as determined by the commissioner, in cortsul~ation wifihthe admini~~rative a ce of tf~e triaE court. The lease ~greemerot shall also provide that if the parcelceases to be used fc~r the purposes described in this secfian, the commonwealth may terminate thelease under such terms and conditians as the-lease may prescribe.(c~ Any lease agreement entered ir~fio by the commonwealth pursuant to this section shall provide,by reservation or otherwise, #ar 55 dedicated parking spaces for use by the administrative office o€the trial caurC at no cost tta the camrrrc~nwealtf~. The consideration for tine lease shall be the provisionof those dedicated parking spaces and the cifiy of Nc~rthamptnn's r~sponsibilify for all costs endexpenses asse~cia~ed with the park°rng facilities as provided in subsection (e). The lease shalE elseprovide far amutually-acceptable method flf determining substitute or in-kind consideration to bepaid car ~rcavided by the city of Northampton to the commor~wea(th in the event that the administrativeaffice of the trial court ceases to use all or a porfion c~fthe d dicafied parking, taking intocansider~t€can the cast fio the city of providing 55 repl~cemenfi spaces as covered parking, parkinglot maintenance, parking enforcement ar~d other casts a~saciated with providing parking fatoperatians over the term cif the lease. The commissioner shalE determine, from time to time, inconsult~fian with the administrative off ce of the trial caur~ and the city of Narthampton, the sufific3entnumber of parking spaces based on size and configuration of parking spaces at fihe time, and fihelocatian and access thereto, far use by the administrative once a~ the trial court and the terms andconditians governing such use and operation; provided, however, that the tcital area of such parkingspaces on the parcel shall not materially xce~d the aria c[edicafied to the initial 55 parking spaces.(d) Any lase agreement enterer! into by the cammar►wea,lth pursuant to this act sha11 be on suchother terms and conditions as the cc~mmissianer, in consultation w}th the administrative office of thetrial court, d~err~s appropriate; provided, however, that any such lease agreement shall contain aprevision that requires the lessee to indemnify and hold the commonwealth, the division of capifialassefi management and maintenance and the administrative ofifice of the trial court harm9ess framany persanaE injury or prcaperty darr~~ge caused or suffered by the lessee, its representatives,clienfs9 UC~~I ILJi invitees or other t~r~emb~r of the pubEic. The indemnity ar~d l~ofd harmless provisionshall cover alE costs, expenses, liabilities and legal'Fees in connection with any injury, loss, damage,liability r~i• claim or any proceeding broughfi therea~ or ire defense thereof,(e) The lessee shall be respansible for procuring a61 work ir~ciuding, withaut Eimitation, legal services,surveys, tifife and the preparation of plans and: specifications as deemed necessary or appropriateby the commissioner ~o implement this section and shalE day alb costs and expenses themfar. Thelessee shall also be responsible for all casts, liabilities and expenses c~~ any kind for thedevelopment, canstruction, improvement, repair, rr~aintenance, management end operation a~the
~.dd . 4 3
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S~~TtCDhi 32. Section 27 s~iall b~ ¢ake effect can Octab~r 1, 2008 and shall expire on January 15,
20(79.
Add. 44
I~OUSE No. 5075
~~je (~ommortYaealt~j of ~Ca~sac~ju~ett~
—_ =~~~tr EXECUTIVE DEPARTMENT' ~_'`~~ STATE HOUSE • BOSTON 02133
-~ (617) 725-4000
DEVAL L. PATRICKGOVERNOR
TIMOTHY P. HURRAYLIEUTENANT GOVERNOR
August 10, 2008.
To the Honorable Senate and House of Representatives:
Pursuant to Article LXIII, Section 5 of the Amendments to the Constitu-tion, I am disapproving specific language in section 2C, line items 1102-2008, 1100-3001, 7000-9090, 8000-3500, and Sections 8, 10, 11, 12, 28 and30 of House Bill No. 5055, "An Act Providing For Capital Facility RepairsAnd Improvements For The Commonwealth."
I am pleased to sign the remainder of this General Governmental CapitalNeeds Bond Bill, including:
• $658.3 million to fund the costs of improvements to our court facili-ties;
• $451.8 million to modernize critical state information technology sys-tems;
• Over $400 million for the Division of Capital Asset Management andMaintenance for capital repairs, on-going maintenance and unforeseenemergency capital needs at state office buildings and facilities;
• $250 million for the acquisition of equipment that is currently fundedfrom the annual operating budget;
• $100 million for the Board of Library Commissioners to construct 31new libraries across the state.
These targeted investments will foster local economic growth by pro-viding well-maintained buildings and state-of-the-art equipment. Theseinvestments will provide awell-functioning and responsive government.
~~,~d . 4 5
2 HOUSE — No. 5075 [August
The bill also provides authorization to back certain debt and other pay-ment obligations of the Massachusetts Turnpike Authority ("the Authority")under its interest rate swap agreements. This authorization may be needed tohelp the Authority and its tollpayers avoid hundreds of millions of dollars ofunnecessary costs. It is important to note, however, that the authorizationdoes not take effect until October 1, 2008, and this provides a starting pointfor addressing the Authority's fiscal situation, but it is certainly not acure-all for its fiscal problems.
I am, however, disapproving several provisions of the bill. I am disap-proving language in section 2C, line item 1102-2008, regarding Libraries inWeymouth reading:
`;'provided further, that not less than $1,000,000 shall be expended to thetown of Weymou±h for the general maintenance and any other costs associ-ated with daily operations of the Tufts, Franklin Pratt, North Branch andFagg Libraries located in the town of Weymouth".
I am also reducing the amount of this line item from $461,000,000 to$460,000,000. I am disapproving this language because the Weymouthlibraries earmark is not a state facility, and the purpose of this funding is toprovide for maintenance and repairs to state facilities.
I disapprove of language in section 2C, line item 1100-3001, because itwas funded previously in fiscal year 2007. The language I disapprove states:
"; provided further, that not less than $737,000 shall be expended to reim-burse the town of Southbridge for its purchase of the former National Guardarmory from the commonwealth".
I am also reducing the amount of this line item from $286,725,000 to$285,988,000.
I disapprove language in Section 2C, line item 7000-9090, regarding theBoston Public Library stating:
` ;provided further, that $37,500,000 shall be expended for the phase 11Dof the McI~iin Building renovation and improvement project; provided, how-
ever, that receipt of $22,SOU,000 of which shall be contingent on a match ofnot less than $1 in non-profit, private, city or federal funds for each addi-tional dollar in state funding".
Add. 46
2008] HOUSE — No. 5075 3
The purpose of this item is to provide grants for 31 Libraries on a waiting
list for funding across the Commonwealth. Accordingly, this language wouldhave the affect of circumventing the grant process. I am also reducing theamount of this line item from $137,500,000 to $100,000,000.
I disapprove several earmarked funds in section 2C, line item 8000-3500,because the purpose of this funding is to provide for a competitive grant pro-gram. These earmarks jeopardize the program. Further, these earmarks donot relate to the purpose of this item, which is to fund the repair, renovationand construction of public safety facilities, including police and fire stations.I am therefore reducing the amount of this item from $46,430,000 to$44,680,000.
I am disapproving section 8 because it seeks to exempt real estate salespersons and brokers from the independent contractor laws, G.L. c. 149,§ 148B, recently enacted to reduce employee misclassification and abuse ofworkers' status. The section would allow real estate sales persons and bro-kers to rely on written agreements to avoid the classification rules for inde-pendent contractors. The Secretary of Labor and Workforce Developmentand I are working to address employee misclassification in our undergroundeconomy task force, and we are concerned that this section is inconsistentwith that objective.
I disapprove sections 10 and 1l, because these sections are duplicative ofprovisions in House Bill Number, 5054 "An Act Providing for the Preserva-tion and Improvement of Land, Parks, and Clean Energy in the Common-wealth."
I am disapproving section 12 because the section de-authorizes sections ofthe 1996 transportation bond bill. However, the Commonwealth continues touse authorization from that bill for on-going projects.
I am disapproving section 28 because it requires the valuation of all assetsof the Massachusetts Turnpike Authority. Since most of the Authority'sassets cannot generate income and several are encumbered by long termagreements, current valuation information would not be particularly useful inidentifying revenue opportunities.
1 am also disapproving of section 30, which establishes a special taskforce to examine the future viability of the Authority. I recognize the impor-tance of closely reviewing the Authority's fiscal situation, and I supportefforts to make its practices transparent to the people of the Commonwealth.
Add. 47
4 MOUSE — No. 5075 [August 2008]
Under Secretary Cohen's leadership as chairman of the Authority, theAuthority has already made significant progress in becoming a more ef~-cient and transparent organization, and it will continue to do so.
Unfortunately, the Authority's interest rate swap agreements with invest-ment banks provide that the appointment of an entity, pursuant to law, toreview the Authority's finances could give the investment banks the right toterminate the agreements and require the Authority to make termination pay-ments that could exceed $200 million. Accordingly, although I support itsintent, I disapprove of this section because it creates a financial risk theAuthority and the people of the Commonwealth cannot bear. Through ouractions to try to .protect toll payers from having to incur hundreds of millionsof dollars of unnecessary costs, we must act prudently to ensure that we donot cause those costs to be incurred.
Because I strongly support the objective of this section, I will establish atask force with the identical composition and mission of the task forcedescribed in section 30. Creating a board to review the Authority's fiscal sit-uation without a legal mandate will achieve the same goals of transparencyand sound fiscal analysis without potentially jeopardizing the validity of theAuthority's interest rate swap agreements.
I am pleased to sign the remainder of this bill.
Respectfully submitted,
DEVAL L. PATRICK,Governor. ❑
This Document Has Been Printed On 100% Recycled Paper.
• ~~~
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FREQUENTLY ASKED QUESTIONS
LEGAL AFFAIRS DEPARTMENT "`~
1. What is the difference between an independent contractor and an emalovee?
Employers have a significant degree of control over their employees, and are ableto direct when, how, and where employees accomplish their tasks andresponsibilities. Employers also often provide the necessary "tools of the trade" totheir employees. In contrast, an independent contractor generally can determinewhen, how and where to perform their work, and is responsible for any necessarytools or equipment necessary to provide the services.
For legal purposes, the key distinction between an employee and an independentcontractor is often determined by the amount of control a business exerts over theworker. The more control a business exerts over the worker, the greater the likelihood theworker will be deemed an employee.
2. Are brokers required to classify their salespeople as independent contractors?
No. Brokers can classify their real estate salespeople as either employees or asindependent contractors.
3. What laws and re6ulations apply to a brokerage's classification of its salespeople?
Worker classification laws at the federal and state levels as well as state real estatelicense laws will apply to a brokerage's classification of its salespeople. At thefederal level, the Internal Revenue Service has carved out a special statutory non-employee status for real estate professionals, qualifying them as independentcontractors when all of the following requirements are met:
a. The individual must be a licensed real estate professional;b. Substantially all of their payments must be directly related to sales or other
output, rather than the number of hours worked; andc. Their services must be performed under a written contract providing. that
they will not be treated as employees for federal tax purposes.
State statutes for worker classification and real estate licenses vary in regards todetermining proper classification of real estate licensees. Some states explicitly
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FREQUENTLY ASKED QUESTIONS
LEGAL AFFAIRS DEPARTMENT
recognize real estate licensees as independent contractors when certain conditionsare met, and other states are silent as to real estate licensees so the courts mustapply the applicable test for• determining proper classification. This is why it isvital for real estate professionals to know the laws that pertain to workerclassification in their states.
4. Is an independent contractor written agreement sufficient to classify workers asindependent contractors?
Having an independent contractor agreement is a very important element of establishingan independent contractor relationship with a real estate salesperson, but the existence ofan agreement is not enough to avoid misclassification. Courts and regulatory agencieswill look to the reality of the relationship, how the parties interacted, and how muchcontrol a broker exerts over the real estate salesperson in order to determine the truenature of the relationship between the parties.
5. What types of activities should brokers avoid in order to nroveriv classifysalesueonle as indeaendent contractors?
Under many state, and federal, laws, making certain acts "mandatory" may be consideredan indication of employer-like control over the worker. One of the hallmarks of anindependent contractor relationship is that the independent contractor has the ability todirect and control where, when and how they perform their work.
In order to establish an independent contractor relationship, the following is a list of thetypes of activities that should be avoided:
• Requiring the worker perform the services during set work hours.• Requiring the worker perform the services at a specific location.• Making attendance at staff meetings mandatory.• Providing training to the worker.
• Supplying tools and materials to the worker.
6. Since worker classification is often dependent on the level of control an employerexerts over a worker. does this mean that brokers should not supervise theirindependent contractor salespeople?
No. In fact, according to real estate licensing laws brokers must maintain a certainamount of supervision over their salespeople. Brokers must therefore make sure that theyare balancing their state real estate license laws' supervision requirements with theapplicable requirements in state and federal worker classification laws.
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Add. 50
FREQUENTLY ASKED QUESTIONS
LEGAL. AFFAIRS DEPARTMENT °'"
7. Do federal income taxes have to be withheld from a real estate professional'searnings?
No, if the independent contractor meets the three elements of the IRS's carve out. TheIRS recognizes the unique nature of the real estate industry and created a statutory non-employee status for real estate professionals, provided three elements are met: 1) theindividual is a licensed real estate professional; 2) substantially all of their payments bedirectly related to sales or other output, rather than number of hours worked; and 3) theirservices are performed under a written contract providing that they will not be treated asemployees for federal tax purposes. If these three elements are met, no federal incometaxes need to be withheld from the real estate professional's earnings.
8. Does pualifvin~ as a statutory independent contractor under IRS rules also meanthat state income taxes do not have to be withheld from a real estate professional'searnings?
No, qualifying as a statutory independent contractor under IIZS rules applies only tofederal income taxes. The question of whether state income taxes must be withheld froma real estate professional's earnings is a question of state law. Brokers should check theapplicable state law where they operate.
9. Can a broker provide its independent contractors with ben~~ts such as healthinsurance and 401K participation?
The provision of employee-type benefits, such as health insurance, vacation pay and 4011cparticipation, can be factors pointing to an employer-employee relationship, rather thanthat of an independent contractor. The provision of these types of benefits maycompromise the argument that the relationship with the worker is that of an independentcontractor.
10. What haAUens ff a broker misclassifies an employee as an independent contractor?
Improper classification of workers can cause businesses a number of taY and other legalproblems. At the federal level, the IRS may levy unpaid payroll tares against a businessit believes is misclassifying its warlcers, as well as interest and other penalties. Inaddition, the United States Department of Labor, the National Labor Relations Board,and the Equal Employment Opportunity Ajency have an interest in a business'sclassification of its workers, and may pursue penalties and legal action against businessesbelieved to be engaging in worker misclassification.
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add. 51
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FREQUENTLY ASKED QUESTIONS
LEGAL AFFAIRS DEPARTMENT __ ° °"°° "'
At the state level, businesses may face fines and penalties for violations of state workers'compensation laws, tax laws, and state unemployment compensation laws. Improperclassification can also expose businesses to private causes of action and costly litigation.
11. What resources are available to helu further wide real estate professionals on thisto ic?
A number of resources on this topic are available on ruww.I?Ei~I,~TC~_R_,_~r~s, IndependentContractor resources page: l~ttp -'; ~~r:vv_w~realtor.or~~'to.~icslinci~endent=contractor. Theseresources include:
• "'Ten 1~~ays in Succ~ssfiillv Manage I`our Inde~aendent Contractor Relationships"s I,e~al Affairs_video_on ~_ecent worker ciassr_iication litigation• Chant detailiu~ various state lab~i• lativs approach to classif}~in~ real estate
professionals• Coming soon - Sample independent contractor agreement
Outside resources include:• The IR website's truide to ivoricer classification• L.S. L)e~artment ~f LaborVija~e anc~ Ilaiu~Dir~~isia~uic~ance gn_tivorkcr
classif cationYour state's Department of Labor website
• Your state's real estate licensing authority's website.
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Add. 52