What really happened at Probation’s electronic monitoring operation?
Last summer's trial raised questions but provided few answers
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The ELMO hires, as they came to be known, were the most interesting aspect of last summer’s federal Probation corruption trial because politicians themselves handed out most of the jobs rather than just recommending someone for a position. The ELMO hires were also something new. They were never mentioned in the Boston Globe Spotlight Team’s 2010 series on patronage at Probation. They received little attention from Paul Ware, the independent counsel brought in by the Supreme Judicial Court to investigate hiring practices at Probation. And they were not included in the first federal indictment of former Probation commissioner John O’Brien and top aides Elizabeth Tavares and William Burke III, which was filed in 2012. The hires surfaced for the first time in 2013, in a second superseding federal indictment, which identified 17 of the new employees by their initials and their political sponsors by their titles.
The federal trial provided a fairly complete picture of the way O’Brien, Tavares, and Burke rigged the multistep hiring process at the agency to steer jobs to the politically well-connected in violation of Trial Court policies. Yet the ELMO employees, who went through no interview process before being hired, received less attention. Lead federal prosecutor Fred Wyshak barely mentioned them in his opening statement and said nothing about House Speaker Robert DeLeo, who was allegedly given 10 ELMO jobs to hand out to colleagues as part of an effort to build support for his 2009 run for speaker. The labeling of DeLeo as an unindicted coconspirator in the later stages of the trial became high political drama, but the government’s case was fairly thin and relied heavily on a single, shaky witness. The end result was a lot of heat but very little light, which may explain why, according to the Boston Globe, federal prosecutors are trying to compel O’Brien to testify in a new court proceeding.
Trying to learn what really happened at ELMO, CommonWealth reviewed hundreds of pages of court transcripts and exhibits, uncovering information that either wasn’t presented or went unnoticed at the trial, including one document suggesting an ethics breach by a state senator. But the key actors in the drama all declined comment. Seth Gitell, DeLeo’s spokesman, said the Speaker would not sit down for an interview. “After an almost four-year investigation, first by an independent counsel and then by the US Attorney, as well as intense media coverage throughout that time, the Speaker is reluctant to reopen a discussion of the Probation case,” he said in an email.
The current officials overseeing the Probation Department say what happened at ELMO in the past is irrelevant and it’s time to move on. “We’ve been pretty much forward-focused,” says Probation Commissioner Edward Dolan. “There isn’t a lot of reason to look back.”
Yet Rep. Jim Lyons, a Republican backbencher from Andover, says looking back is what lawmakers are supposed to do. When something goes wrong, at the Big Dig, the MBTA, or the Department of Children and Families, he says lawmakers typically hold hearings. Lyons says he spent hours and hours reading court transcripts in an attempt to understand what federal Judge William Young labeled a “massive corruption.” Along with Rep. Marc Lombardo, his Republican colleague from Billerica, he tried to convince the House Committee on Post-Audit and Oversight to investigate what went wrong at the agency. But the chairman of the committee, Rep. David Linsky of Natick, concluded the panel lacked jurisdiction to investigate the Legislature.
“The chairman’s refusal to investigate the matter was a surprise to us, but a surprise that speaks to the heart of the problem that reformers face on Beacon Hill,” Lyons says. “The Legislature refuses to investigate its own; the institutions that are in place to protect the interests of the taxpayers abdicate their responsibilities in favor of shielding the politically connected.”
Workers at the Probation Department’s Electronic Monitoring Office are a lot like air traffic controllers. Operating out of a series of cubicles and sitting in front of computer monitors, they use GPS to track the whereabouts of thousands of people wearing ankle bracelets, making sure they don’t venture into areas or near people they are prohibited from approaching. The office operates 24 hours a day, 365 days a year, with workers deployed in three shifts.
A Probation spokeswomansays ELMO workers on a typical day deal with 1,800 alerts, instances when an alarm is triggered, signaling anything from a signal interruption or a low ankle-bracelet battery to someone violating a curfew or entering a restricted zone. The unit issues 15 to 20 warrants a day for people violating the terms of their probation, says the spokeswoman, Coria Holland.
The 2010 Ware Report included testimony from Probation regional supervisor Edward Rideout that he and other agency employees gave political donations to Petrolati around 2001 because “he was the guy that was running the bill for us,” meaning the lawmaker was the one pushing for funding. Rideout also testified that he thought the electronic monitoring program carried enormous value for the state because it would get people out of prison beds, relieve overcrowding, and save the state money.
Yet almost from the start patronage reared its head at the Electronic Monitoring Office. Kathleen Petrolati, the wife of Rep. Petrolati, was one of the first hires in Springfield. She worked alongside Mindy Burke, the daughter of O’Brien deputy William Burke III. Other early hires included Eugene Irwin, the son of former chief justice for administration and management John Irwin, who hired O’Brien, and Edward Ryan, who parlayed political connections with Irwin, former rep. Steve Tobin, and former US representative William Delahunt into a job.
After the Bizanowicz double murder, the whole dynamic at the Electronic Monitoring Office changed. Legislation approved in 2005 authorized the agency to track sex offenders on probation or parole. A year later lawmakers authorized the monitoring of people on restraining orders for domestic violence. Over time, judges began to view ankle bracelets as an alternative to incarceration and a way of supervising individuals who couldn’t be held in jail but required monitoring, including people awaiting trial who were flight risks. As the duties of the Electronic Monitoring Office expanded, so did its budget, often at a faster pace than Trial Court officials had even requested.
Court records include extensive correspondence between O’Brien and Robert Mulligan, the chief justice for administration and management, about staffing levels at the Electronic Monitoring Office in 2007 and 2008. O’Brien would pressure Mulligan to approve the hiring of more workers. Mulligan would often raise concerns about O’Brien’s plans, but rarely rejected them outright.
In January 2007, for example, O’Brien asked Mulligan for approval to open a third electronic monitoring facility in Clinton and hire 21 employees. “Public safety is our priority and to fulfill these new legislative mandates it is imperative that we receive additional staff and resources,” he wrote. Mulligan responded on May 8, questioning the need for a third ELMO facility. Yet he eventually gave the project a green light and approved the hiring of 14 people.
In September 2007, O’Brien told Mulligan the office’s workload was expanding rapidly, with the number of individuals being monitored growing from 147 to 434 in the space of a couple years. O’Brien said he had a total of 32 employees at the various Electronic Monitoring Offices, but needed another 15. Without more employees to monitor screens, he warned, he would have to tell the Legislature “that I have adequate resources and technology, but they are not ‘operational within the Department of Probation.’”
By February 2008, Mulligan had approved only five more hires, bringing the total staff to 37. O’Brien, claiming the office was now monitoring about 1,200 individuals, said an internal staffing model indicated he needed 21 more employees. Mulligan gave the go-ahead to hire 21 more employees two months later.
The agency was growing so fast that O’Brien, with Mulligan’s approval, decided to hire people on a temporary basis. Janet Mucci, the former director of human resources at Probation, testified at the trial that temporary hiring was a way to give managers flexibility in case they later needed to cut back staff. “There really isn’t a [hiring] process on a temporary job,” she said. “Jack would give me the name and number of someone and I would call them and give them the job.”
In retrospect, some of the hiring was probably unnecessary. After O’Brien was suspended in 2010, his replacement, Ronald Corbett, consolidated the electronic monitoring operations in Clinton. The Boston office was closed in July 2010 and the Springfield office was shut down in January 2012 and the size of the agency’s staff was reduced from 58 to 40. Corbett also changed vendors for the agency’s GPS system after then-state inspector general Gregory Sullivan wrote a scathing letter raising “grave questions” about the way the initial $2 million-a-year contract was awarded.
Despite the staff reductions, the number of people being monitored by the state has increased to more than 3,000. The Electronic Monitoring Office is now doing nearly three times as much work with nearly a third fewer employees.
HIRED SIGHT UNSEEN
In the early stages of the trial, lawmakers deflected criticism of their patronage practices by pointing out that they routinely recommended qualified people for jobs but it was up to agency officials to decide whom to hire. House Speaker DeLeo, who had recommended his godson for a Probation job, told WBZ radio host Dan Rea: “I can recommend them, but quite frankly that’s where it ends.”
But it didn’t end there with the ELMO jobs. In filling those positions, O’Brien didn’t advertise them or do any outreach. Instead, he reached out to his political friends on Beacon Hill and essentially turned the hiring decision over to them. Whoever they recommended, unless their candidate didn’t meet the minimum qualifications, got the job. In most cases, Probation officials didn’t even interview the job candidates; they just hired them on the spot.
Fred Wyshak, the lead federal prosecutor, said in his opening statement last May that “Jack O’Brien handed out those jobs like lollipops to members of the state Legislature who essentially gave Jack O’Brien a name and those people were hired.” Wyshak suggested the jobs, paying more than $40,000 a year and coming in the midst of a recession, were plum positions.
Robert Popeo, the attorney who represents DeLeo on Probation matters, takes issue with Wyshak’s interpretation. He says the jobs weren’t that attractive because they involved sitting in front of a computer screen, with shifts running around the clock every day of the year. He says O’Brien reached out to people at the Probation Department and the Trial Court and found no one interested in the jobs, so he turned to lawmakers for help.
According to Popeo, O’Brien called Leonard Mirasolo, DeLeo’s former chief of staff, and explained his need for workers in Clinton. Popeo says Mirasolo had to look up who represented Clinton in the Legislature, and then reached out to the local rep, Hank Naughton. Naughton passed along the name of the son of a friend, who filled out an application on June 29, 2007. O’Brien submitted the person’s name to Mulligan four days later and Mulligan approved the hire a month later.
Eight other reps were contacted by either DeLeo or Mirasolo for referrals and ended up recommending friends, former legislative aides, or, in the case of then-Rep. Anne Gobi, a casual acquaintance she thought was well qualified. One person, Fabienne Pierre-Mike, who worked at the State House, appears to have been contacted by Mirasolo directly and told to apply.
In 2007, DeLeo was the chairman of the House Ways and Means Committee but coveted the job of speaker if the incumbent, Sal DiMasi, left. At the trial, Edward Ryan, who in 2007 was serving as O’Brien’s legislative aide, testified that the Probation commissioner had told him he was steering ELMO jobs to DeLeo to help him secure support in the race for speaker.
Popeo, whose firm was paid $500,000 by DeLeo’s campaign committee, says Ryan’s claim is nonsense. He says the US attorney’s office introduced no evidence that jobs were swapped for votes and he says Ryan has no credibility. “This is a case about people who are not the best candidates getting jobs. And who do they have as their poster boy?” Popeo asks, referring to Ryan. “If I were cross-examining him, I would have turned him into dog meat.”
Moreover, Popeo says, “DeLeo did not need any votes to be elected speaker. That part of it is nonsense. He had the votes.”
Rep. John Rogers, a Democrat from Norwood who was DeLeo’s chief rival for the job of speaker, says back in 2007 and through most of 2008 DeLeo did not have the votes. “In 2008, many of his team were fearful he would lose,” he says.
Rogers also discounts claims made by O’Brien’s attorney at the trial that there was no speaker’s race going on in 2006 and 2007, nearly three years before DiMasi stepped down. “The 2009 speaker’s fight began the moment the 2004 speaker’s fight ended,” he says.
At the trial, federal prosecutors focused their attention on the ELMO jobs that were distributed through DeLeo. Yet testimony suggested nearly every job at the office went to someone with political connections or personal ties to O’Brien. The political sponsors included former Senate president Therese Murray, Lt. Gov. Tim Murray, Rep. David Nangle, Rep. Petrolati, former speaker DiMasi, former representative Pedone, and former state senator Steven Tolman.
The jobs that were run through DeLeo’s office went to Reps. James O’Day of West Boylston, Michael Moran of Boston, Kevin Honan of Boston, David Linsky of Natick, Rushing of Boston, Naughton of Clinton, as well as former representatives Robert Rice of Gardner and Anne Gobi of Spencer.
O’Brien also hired a friend of one of his daughters, the boyfriend (and later husband) of one of his daughters, the nephew of a top-ranking aide, the daughter-in-law of a judge, and the brother of a Probation officer who had contributed a lot of money to Rep. Eugene O’Flaherty.
Sen. Marc Pacheco of Taunton received one of the ELMO jobs while he was conducting a preliminary investigation of staffing and funding levels at O’Brien’s office. Court files contain a letter dated April 7, 2008, from O’Brien to Pacheco, who at the time was the chairman of the Senate Post Audit and Oversight Committee. O’Brien says in the letter he is providing documents containing “sensitive information” that had been requested by Pacheco more than two months earlier.
According to trial testimony, Pacheco steered the ELMO job to Robert Donnelly, the son of an attorney in Taunton. Donnelly filled out an application on May 5, 2008. Three days later O’Brien passed his name on to Mulligan to be hired. Donnelly still works in the Clinton office today.
Rosalie Fazio, counsel to the Senate Post Audit and Oversight Committee, says no report on staffing and funding levels at O’Brien’s office was ever issued by the panel. “We cannot comment on a preliminary investigation,” she says.
Pacheco did not return phone calls, but he was shown a copy of the correspondence between him and O’Brien on his way to a hearing at the State House. He stopped to read the letter and then, clearly frustrated, declined comment.
Job recommendations are part of everyday life. No one would begrudge a job applicant from enlisting the support of someone who could put in a good word with a potential employer. But the Probation trial demonstrated that the Probation Department went much further than that, with officials rigging the hiring system in favor of politically connected candidates and actually turning over the hiring process for ELMO jobs to politicians.
O’Brien sees nothing wrong with what he did because his actions were in many ways shaped by the environment on Beacon Hill. Power at the State House has become concentrated in the hands of a few players over the last 20 to 30 years. Friends of O’Brien point out that nothing he did put money in his own pocket. He did favors for people, and figured those favors would reap rewards down the line for his agency. If two people recommended people for the same job, O’Brien’s friends say, he would choose the person with the more powerful backer. It was just common sense, they say.
DeLeo has never shown much interest in trying to understand the Legislature’s role in the Probation scandal. The day the verdicts came out last summer he issued a statement saying “it must be noted that the jury confirmed that neither I nor any member of the Legislature had engaged in any inappropriate conduct.”
A few days later he did an interview with WCVB-TV’s Janet Wu, who asked him what he expected in return for letting his legislative colleagues pick people for electronic monitoring jobs. “I’m sure obviously that they would obviously feel grateful that I called,” he said. “But if anyone thinks a $30,000 job can make someone vote or not vote for you for speaker of the House, they’re sadly mistaken.”
At the end of January, roughly six months after the Probation verdicts, DeLeo urged House members to do away with the eight-year term limit on the speaker’s job that he instituted when he came into office in 2009. The House vote to eliminate the term limit allows DeLeo to serve beyond eight years, but critics of the move say it will effectively allow him to hold that position for as long as he wants.
Rep. Jonathan Hecht, a Democrat from Watertown, spoke out against the term limits change on the House floor. He made clear his remarks were not directed at DeLeo personally and he never mentioned Probation. But Hecht said elimination of term limits would accelerate an already dangerous trend toward power consolidation on Beacon Hill, increase the risk that power will be abused, and put a target on the speaker’s back because the only way to get around him will be to take him out.
“You’ll look to drag down that speaker any way you can,” Hecht said. “The speakership is already an extremely powerful and influential position. In fact, I think it’s fair to say it has never been more powerful than it is now. It’s like magnetic north—all compasses tend to swing in its direction. By eliminating term limits, we would make it far more powerful still. I fear the price may be independence of thought.”
At Probation, the impact of last summer’s trial is hard to quantify. Officials are eager to put the scandal behind them and they say that’s what’s happening. Yet Harry Spence, the Trial Court administrator, reluctantly concedes there was fallout.
“There are really two damages that occur when patronage on a large scale occurs like that,” he says. “One is people who are not sufficiently qualified get jobs they’re not qualified for. That is not true of everyone. Some of the people who came in at that time are highly qualified. But the bigger damage that occurs is that an organization, when it becomes focused on who you know rather than how qualified you are, loses its focus on mission. I think a great deal of damage was done in Probation in terms of a sense of loss of mission.”
As for the practice of referring people for jobs at Probation, it seems dead, for now. A law drafted by DeLeo mandates that all job applicants pass a test assessing their qualifications and also requires that all job recommendations come into play only at the end of the hiring process and then be open for inspection by the public. The latter requirement was included because the judiciary is not subject to the state’s Public Records Law.
Spence says he has received six to eight letters of recommendation for job candidates over the last two years. Dolan, the Probation chief, says no one has contacted him.
But there was an interesting change made to DeLeo’s legislation as it made its way through the Legislature. A provision requiring that all job recommendations be made in written form was deleted during the horse-trading between branches. The change was interesting because there’s a code on Beacon Hill—an unwritten code, naturally—that verbal recommendations are the ones that really carry weight.
As the Ware Report said, a written recommendation from a lawmaker is “effectively worthless” because such letters are written for almost anyone who asks for one. “If a legislator actually cared about a candidate and wanted to see him or her get a position, the legislator (or a member of the staff) called the commissioner’s office,” the report says.Ryan, O’Brien’s former legislative liaison and the person who handled those calls at Probation, was asked a similar question during last summer’s trial. He didn’t hesitate with his answer. “A phone call is much better than a letter,” he said.