Probation chief put on leave; SJC appoints special counsel
By 
The Massachusetts Supreme Judicial Court today placed state Probation Commissioner John J. O’Brien on administrative leave and appointed an independent counsel to investigate patronage practices at the agency.
“It has come to the attention of the justices that the hiring and promotion of employees within the probation department of the trial court allegedly are based on reasons other than merit,” the seven justices said in their order.
Court officials said in a press release they were responding to a two-part series by the Boston Globe’s Spotlight Team on Sunday and Monday, but they knew months, if not years, before that probation was a place where who you knew was often as important as what you knew.
News stories by CommonWealth and other media outlets raised some of the same issues as the Spotlight reports. The justices also had first-hand knowledge of how the Legislature had insulated both O’Brien and probation from court oversight and how O’Brien had rewarded members of his family and political allies with jobs. His hires include two daughters (one as an administrative assistant and the other as an intern), the daughter and nephew of the judge who appointed him, and the wives of Rep. Thomas M. Petrolati of Ludlow, Sen. Stephen Baddour of Methuen, and Rep. Michael Costello of Newburyport.
The story said the Spotlight Team had documented how the agency now employs at least 250 friends, relatives, and financial backers of politicians and top court officials. (The Globe didn’t identify the 250, but its definition of “well connected” is broad enough to include any employee who ever gave a political contribution to anyone.)
In their order, the SJC appointed Paul F. Ware Jr., senior trial counsel at Goodwin Proctor, as independent counsel to investigate the agency. The court named Ronald P. Corbett Jr., the executive director of the SJC, as acting administrator of the probation service.
Ware has headed up several prominent investigations in the past, including looking at the Big Dig and the judicial misconduct allegations against former Judge Maria Lopez. He said knows little about probation other than what he has read and added that he’s had no professional interaction with O’Brien.
Ware said Marshall has given him 90 days to complete his investigation and said he would likely receive assistance form either his office or the SJC. “A comprehensive investigation could not be done by a single individual,” he said.
O’Brien could be removed from his post for cause if he broke a law or violated court regulations, but otherwise it may be difficult to oust him. The Legislature in 1993, five years before O’Brien was appointed to his post, approved a law eliminating the six-year term of the commissioner of probation. The elimination of the term limit for the job has been interpreted by critics of the action as a move to give the commissioner life-time tenure, but others say the law is too vague and the issue will probably have to be resolved in court.
Robert A. Mulligan, chief justice for administration and management at the trial court, told CommonWealth earlier this year that the lack of a term limit for O’Brien was “a unique situation in the court system.”
The Legislature has also effectively made probation an independent entity within the judiciary. In 2001, the Legislature gave the commissioner of probation exclusive authority to hire, fire, assign, and discipline probation officers. Previously, that authority had always been subject to the approval of the chief justice for administration and management, but now the chief justice can only intervene if the hiring violates court policies. (Mulligan, however, can’t say he didn’t know who O’Brien was hiring since all appointees would go through his office for review.)
Michael Keating, a private attorney who heads the Court Management Advisory Board, a group that advises court officials on how to run the judicial branch, said the Legislature has effectively insulated an agency with a third of the court’s employees from oversight by court officials. He also said the Legislature doesn’t treat the court system as an equal branch of government. “They treat the judiciary like it was the Registry of Motor Vehicles, but it’s not,” he said.
He said the Legislature should remedy this situation in the budget for next year, which is currently being debated by the Senate. “The quick fix here is to leave the probation department where it is but remove the shackles on the judiciary so it can run probation like it does every other department,” Keating said. “If it can’t happen this year under these circumstances, I don’t know what will make it happen.”
House Speaker Robert DeLeo said after meeting with the governor and Senate President Therese Murray this afternoon at the State House that he was not rushing to judgment on O’Brien and would await the results of Ware’s investigation. “The fact that there were various allegations made doesn’t necessarily mean that they are factual,” he said.
DeLeo also said he had nothing to do with his godson being hired as a chief probation officer, as the Globe has reported. “The only thing I would say is that all hires – if I’m correct on this – had to go through Judge Mulligan, had to be approved by Judge Mulligan. So I’m not sure how any allegations could be made,” he said.
Murray told reporters she would have a conversation with any senator who was found to use their influence to get someone hired, but she said she hadn’t talked with Sen. Baddour about his wife’s job at probation. “I don’t know the senator had anything to do with her hiring,” she said.
Gov. Deval Patrick proposed in his budget for the coming fiscal year to move probation out of the judiciary and into the executive branch. At the time he unveiled his budget in January, he downplayed concerns about patronage at probation and said the move was needed to bring greater efficiency to the state’s justice system. Now he is calling probation a “rogue agency” and dismissing criticism from his Republican rival Charles Baker that he ignored problems at the agency for the first three years of his term.
“I think that’s the same-old same-old from the campaign,” Patrick said at a forum at Suffolk University. “We didn’t get interested in probation because of the Globe’s article. I vetoed funding for probation in the last round of budgets because I was not satisfied with the oversight and we’ve been in negotiations with the Legislature for some time.”
Patrick said he still favored moving probation into the executive branch, but he said he was amenable to keeping the agency within the judiciary as long as oversight of the agency is improved and probation and parole are placed under joint supervision.
“I don’t interact with Jack, I haven’t in a long time,” Cahill said. “I have employed his wife. I have employed his daughter. I believe they have done a very, very good job.”