Asked the City Manager to provide a status Update on Automated Parking Enforcement

You have requested an opinion as to whether the City of Boston (City) may utilize the technology and services of Municipal Parking Services, Inc. (MPS) to monitor and enforce violations of parking prohibitions. It is my understanding that the primary question raised by the City is whether it has the right to issue citations based upon photographic evidence of parking violations.

In my opinion, for the reasons set forth below, the City may accept a local option statute that would provide it with the authority to enforce against parking violations based upon photographic evidence. Alternatively, the City could submit a home rule petition, which would (upon approval by the Legislature) provide it with such authority.

1. Facts Relative to MPS’s Technology and Services

Based upon the facts with which you have provided me, it is my understanding that MPS has developed a product called the Safety Stick, which is installed adjacent to designated no- parking areas. Municipal clients generally choose to concentrate deployment of the devices in or near high-traffic locations, where they have observed significant numbers of parking violations that have created substantial public safety risks.

The Safety Stick is equipped with automated license plate reader (ALPR) technology that is triggered by a vehicle stopping in the designated no parking zone for a specified period of time, typically 90 seconds. Once triggered, the Safety Stick captures an image of the vehicle’s license plate at the time of arrival and departure, which is conveyed to MPS for verification by an MPS employee, who then forwards the photographic evidence to a designated officer(s) of the municipal client. The municipal officer(s) then also confirms the violation and the license plate of the vehicle before determining whether to issue a citation.

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Signage is installed at the location of the Safety Stick, clearly indicating that parking is prohibited and that camera enforcement is in effect.

2. Municipal Authority to Issue Citations Based Upon Photographic Evidence of Violations

In my opinion, municipalities may obtain the authority to employ ALPR technology such as the Safety Stick for parking enforcement by accepting the provisions of G.L. c.90, §20A. The second paragraph of that statute provides:

It shall be the duty of any police officer … who takes cognizance of a violation of any provision of any rule, regulation, order, ordinance or by-law regulating the parking of motor vehicles established by any city or town, forthwith to give to the offender a notice to appear before the parking clerk of the city or town wherein the violation occurred at any time during regular office hours, not later than twenty-one days after the time of said violation. [Emphasis added] The statute further states, in the third paragraph, that where it is not possible to affix notice of the violation to the vehicle at the time and place of the violation, a copy of the violation notice may be mailed to the registered owner of the vehicle.

In my opinion, the language of the statute does not require a police officer to be physically present to observe the parking violation. The phrase “who takes cognizance” does not suggest a requirement for in-person, physical observation. The word “cognizance” is not defined in §20A or in any related statutory provision. Where a term is not defined, it will generally be given its ordinary meaning.

See G.L. c.4,6 (“Words and phrases shall be construed according to the common and approved usage of the language”); see also, e.g., Sullivan v. Town of Brookline, 435 Mass. 353, 360 (2001) (“fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning.”); Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290 (1981).

The word “cognizance” is generally defined to indicate taking notice or awareness of something; it does not require that such notice or awareness be a result of physical presence or in-person observation.

E.g., Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/cognizance (“knowledge, awareness”); Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/cognizance (“to take notice of and consider something, especially when judging”); The Britannica Dictionary, https://www.britannica.com/dictionary/cognizance (“knowledge or awareness of something”); Oxford Reference Dictionary, https://www.oxfordreference.com/display/10.1093/oi/authority.20110803095622195;jsessionid= 3003FD754248C5035C0954F3DE7D84F1 (“To take cognizance of something (to be cognizant of it) is to be aware of it or know it, and to take its presence or effect into account.”).

Indeed, the term “cognizance” is used in numerous provisions of the general laws in ways that clearly could not suggest learning a fact through first-hand, physical observation. For

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instance, G.L. c.12, §10, provides that the Attorney General “shall take cognizance of all violations of law or of orders of courts…and shall institute or cause to be instituted such criminal or civil proceedings before the appropriate state and federal courts, tribunals and commissions as he may deem to be for the public interest…” This language clearly could not reasonably be interpreted to limit the Attorney General’s authority to prosecuting only those crimes that he or she personally observes.

Accordingly, the Legislature’s use of the term “who takes cognizance” (rather than, for instance, “who personally observes” or “in whose presence”) in no way suggests that an officer enforcing a parking violation must be physically standing next to the vehicle that is illegally parked. “[T]he court cannot read into a statute an intent that is not there expressed in plain words or by necessary implication.” Tilton v. City of Haverhill, 311 Mass. 572, 578 (1942).

Moreover, reading such a strict requirement into the statutory language would clearly not further the purpose of the statute, which is to empower police officers to enforce parking restrictions. See Chelmsford Trailer Park, Inc. v. Town of Chelmsford, 393 Mass. 186, 196 (1984) (“statute should not be read in a manner that defeats its intended utility.”). The fact that the statute allows for violation notices to be mailed when it is not possible to affix them to the vehicles further supports this interpretation.

Therefore, it is my opinion that municipalities that have accepted the provisions of G.L. c. 90, §20A, have the authority to enforce parking regulations based upon photographic evidence of violations acquired through use of MPS’s Safety Sticks.

3. Whether Boston may Accept the Provisions of G.L. c. 90, §20A

In light of the above analysis, the question of whether the City may utilize Safety Sticks to assist in parking enforcement may turn on whether it is able to accept the provisions of G.L. c.90, §20A.