SJC judges in dark about Probation hiring

Greaney: ‘People were asleep at the switch’

Robert Mulligan and John O’Brien are squaring off in federal court over hiring practices, much as they squared off when Mulligan was the chief justice of administration and management at the Trial Court and O’Brien was commissioner of the state’s Probation Department. But it’s worth remembering that the workplace battles between the two officials didn’t take place in an administrative vacuum: O’Brien reported to Mulligan and Mulligan in turn reported to the justices of the Supreme Judicial Court.

Yet past CommonWealth interviews with two former justices of the Supreme Judicial Court indicate the court was never briefed on the hiring disputes between Mulligan and O’Brien. Court testimony by Mulligan suggests he and O’Brien feuded between 2003 and May 2010, when Mulligan suspended O’Brien in the wake of a Boston Globe Spotlight Series on patronage at the Probation Department.

CommonWealth editor Bruce Mohl interviewed former chief justice Margaret Marshall at the end of 2009 for a question-and-answer article that was published in January 2010 and she seemed to know very little about staffing and spending levels at Probation. Colman M. Herman interviewed former SJC judge John Greaney in May 2012, and Greaney said the Probation scandal occurred because people were “asleep at the switch.”

Marshall served on the SJC from 1996 to 2010, becoming its chief justice in 1999. She is now senior counsel at the Boston law firm Choate Hall & Stewart. Greaney was an associate justice from 1989 to 2008 and is now the director of the Macaronis Institute for Trial and Appellate Advocacy at Suffolk University School of Law.

Greaney wrote the 2003 SJC decision upholding the constitutionality of the Legislature’s decision in 2001 to transfer appointment authority at Probation from judges to O’Brien. Testimony at the trial of O’Brien and his former aides Elizabeth Tavares and William Burke III suggests that change in law pushed legislative patronage at the Probation Department into high gear.

Margaret Marshall interview excerpt:

COMMONWEALTH: It seems like the probation system is one area where data isn’t driving decisions. Michael Keating, the head of your Court Management Advisory Board, tells me his group was studying the courts and discovered that costs were rising and caseloads were falling or holding steady. He says the group couldn’t figure out why until it looked at Probation, which accounts for a quarter of the Trial Court budget. They discovered that from FY05 to FY08 the probation caseload went up 2 percent, its employee level rose 10 percent, and its budget increased 17 percent. Also, the Legislature doesn’t allow you to transfer funds out of Probation in times of crisis and gives you little control over hiring there.

MARGARET MARSHALL: First, I don’t know all of Mike’s data because I haven’t seen those data. It may be that the cases have declined. I don’t know if the nature of the cases has changed. I do know that the Legislature has enacted statutes that require far more extensive monitoring of certain categories of people. There has not been full transferability, and I would say that it would be helpful to have full transferability in any given year so that when there are shortfalls we can move money around to address the critical needs. I do not know whether or not we would have moved money out of Probation because the services that Probation provides are critical for our judicial branch.

CW: You’ve said transparency and accountability are hallmarks of your tenure as chief justice. Yet the probation system, from the outside, seems like a closed system. It’s hard for someone like me to get data on how money is being spent there.

MARSHALL: I can’t respond to that. When I talk about transparency, I’m talking about how many people are employed, what’s the caseload.

CW: You obviously have that information for the courts, but do you have that for Probation?

MARSHALL: Certainly, how many people are employed. Absolutely.

CW: But do you have the level of detail you have on the rest of the court system? For example, can you tell whether Probation is overstaffed or understaffed?

MARSHALL: When we did the staffing model for the processing of cases, the same study was not done for the processing of Probation. Of course I’m aware of the concerns that are expressed, but if your question is, is there some way that I can’t get access to data, the answer to that is no.

John Greaney interview excerpt:

CW: How did the Probation Department get so bad?

GREANEY: People were asleep at the switch. Frankly, it seems to me that not only are the legislators — some of them, not all of them — massively to blame, but the courts are massively to blame, too, for letting those practices go on. And the administrative judges at all levels of the court should have been more aggressive in stopping it. And now there’s going to be a big price to be paid. You’re going to see some indictments coming of legislators I suspect at a certain point. It’s just awful.

CW: Was the SJC oblivious to what was going on?

GREANEY: When we had our regular meetings with the chief administrative judge [Robert Mulligan], who runs the whole court system, he made no mention ever at the meetings about any problems in the Probation Department. At the administrative levels of the Trial Court, they knew what was going on. I think Mulligan had a good sense that there were some real problems here. But we had no direct knowledge of it until the whole thing blew up. I can assure you that if we had known about it, we would have taken some aggressive action at that point.

CW: Before the Globe broke the story, my editor, Bruce Mohl, interviewed Chief Justice Marshall and he questioned her about Probation, and she sort of sidestepped the issue. She said she didn’t have any staffing data from the Probation Department.

GREANEY: I think at that time, they didn’t. The broad heinous picture of what was going on was simply not before us. Now that doesn’t mean that we should necessarily be excused. Our job is to supervise the whole system ultimately. On the other hand, I wonder how you supervise a system when you have reporting data that doesn’t tell you anything.

CW: Do you think Mulligan could have done more?

GREANEY: You’d have to ask him that.

CW: What could he have done? Could he have gone to Chief Justice Marshall and say, “Listen, we’ve got problems here?”

GREANEY: Yes, Yes. He could have come to her and say, “We’ve got very severe problems here” and ask us to devise some way to deal with it. One way might have been for us to pay a visitation to the legislative leadership and say, “Look, this looks to be very serious. We’ve got to do something about this.”

Meet the Author

Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

Meet the Author
CW: But they were part of the problem.

GREANEY: Yes, oh they were definitely part of the problem. Probably the better approach if we were aware of it might have been for us to appoint a special commission — not a special counsel — to look into the business of the hiring of probation officers. But none of that happened.