Patronage on Trial

Patronage on Trial

Coverage of the federal racketeering trial of former Probation Commissioner John O’Brien.

O’Brien conviction overturned; DeLeo cleared

O’Brien conviction overturned; DeLeo cleared

Ruling says prosecutors were off-base in bringing federal charges in probation scandal

A US APPEALS COURT overturned the convictions of former state probation commissioner John O’Brien and two top aides, saying prosecutors failed to prove key elements of their case and should not have been allowed to apply federal criminal statutes to violations of Massachusetts laws.

“We can conclude that O’Brien, along with the other defendants and many other members of the Probation Department, misran the Probation Department and made efforts to conceal the patronage hiring system,” Judge Juan R. Torruella wrote in his decision for the three-judge panel. “But not all unappealing conduct is criminal.”

The decision also dismissed allegations that House Speaker Robert DeLeo, who was named an unindicted co-conspirator by prosecutors during the trial, was given jobs to distribute by O’Brien. DeLeo at the time was chairman of the House Ways and Means Committee, and the government suggested he handed out jobs to lawmakers in exchange for support for his run for speaker. Prosecutors charged O’Brien violated the state statute on illegal gratuities by offering jobs in exchange for favorable treatment on his office’s budget and to support legislation to give him more power.

“All the Government demonstrated, however, is that O’Brien and DeLeo met,” Torruella wrote. “The evidence does not show, for example, that DeLeo subsequently introduced a bill based on either of O’Brien’s proposals or took some official act with respect to such a bill proposed by another legislator.”

DeLeo issued a statement Monday evening in which he said he was pleased with the court’s decision. “I am particularly grateful that the Court has found that no member of the Legislature had committed any impropriety in connection with the allegations in the indictment. It is unfortunate that for six and a half years other legislators and I have lived under the cloud of suspicion of having been involved in illegal activity. Today, the Court of Appeals has affirmed what I have said for the entire period – that neither I, nor to my knowledge any other legislator, had engaged in any wrongdoing. The decision of the court constitutes a complete exoneration for this institution and all of its members. These false and scurrilous allegations can now be given an appropriate burial.”

Christina Sterling, a spokeswoman for US Attorney Carmen Ortiz, said “the Court of Appeals agreed that the government provided evidence that ‘the defendants abused the hiring process to ensure that favored candidates were promoted or appointed in exchange for favorable budget treatment from the state legislature and increased control over the Probation Department.’ We are disappointed with the court’s decision and will continue to fulfill our responsibility to protect the public from corrupt officials by vigorously investigating and prosecuting  public corruption in appropriate cases.”

O’Brien and former deputy commissioners Elizabeth Tavares and William Burke were convicted in 2014 following a 10-week trial on multiple charges of racketeering, conspiracy, and mail fraud. They were charged with handing out Probation Department jobs as “lollipops” to gain leverage in a power struggle with Robert Mulligan, who was the chief justice of administration and management. Mulligan suspended the trio the day after a Boston Globe Spotlight story ran outlining some of the allegations.

O’Brien and Tavares were sentenced to prison, though neither served any time while awaiting their appeal. Burke was given probation.

While the 37-page decision outlined the reasons for overturning the conviction, the narrative made clear the actions of O’Brien and his aides were “distasteful” and might be something state prosecutors could pursue. Torruella took Ortiz’ office to task for trying to apply federal law to the matter.

“Although the actions of the defendants may well be judged distasteful, and even contrary to Massachusetts’s personnel laws, the function of this Court is limited to determining whether they violated the federal criminal statutes charged,” he wrote. “We find that the Government overstepped its bounds in using federal criminal statutes to police the hiring practices of these Massachusetts state officials and did not provide sufficient evidence to establish a criminal violation of Massachusetts law.”

Torruella wrote it was a “stretch” for prosecutors to say it was a violation of the federal racketeering and mail fraud laws for O’Brien to send rejection letters to job candidates who were not selected.

Torruella also rejected the government’s argument that O’Brien struck a deal with state Rep. Thomas Petrolati of Ludlow, who was then the speaker pro tempore, to hire the lawmaker’s wife for a job at the newly created Electronic Monitoring Office in exchange for Petrolati sponsoring budget amendments for the Probation Department. The court said there was no proven connection between the acts.

“The Government asserts that the jury could infer the necessary link based on Representative Petrolati’s sponsorship of the budget amendment and his wife being appointed a program manager,” the opinion said. “But seven months passed between these two events, and there was no evidence that O’Brien knew of Representative Petrolati’s connection to the budget amendment or that Representative Petrolati had ‘change[d]’ his ‘voting pattern’ in anticipation of his wife’s hire.”

The ruling also took trial Judge William Young to task for allowing the jury to ask so many questions during the course of the trial. While Torruella said the action did not factor into the ruling, he said letting the jurors put forth more than 280 questions and posing 180 of them to witnesses went too far. A previous ruling involving another trial by Young two decades ago approved his practice of allowing jurors to ask limited questions.

Torruella said some of the questions – such as why scores were changed for some candidates and whether someone was not on the final candidate list because they were bumped by a favored candidate – went far beyond what should be allowed in any proceeding.

“The content of many of the questions jurors asked is troubling,” he wrote. “Juror questions of this type elicited not just clarifications but gap-filling evidence…If a district court allows jurors to ask questions, it must ensure that the jurors do not turn into fact gatherers rather than factfinders.”

Probation case drags on and on

Probation case drags on and on

Appeals of O’Brien and two aides languish with delays

NEARLY SIX YEARS after the Probation Department patronage scandal exploded into public view, almost four years after three top officials were indicted, 18 months after their convictions, and nearly one year to the day after the trio filed their appeals, the case remains unsettled.

No one has served time, no one has paid a fine, and no one has yet lost their pension despite the felony convictions. And the federal Appeals Court has just granted the third deadline extension for filing briefs despite warnings each time that no more extensions would be granted.

A spokeswoman for US Attorney Carmen Ortiz said the time intervals are par for the course in such a complex set of cases. “This was a very lengthy trial, and in these types of cases extensions are not unusual,” Christina DiIorio-Sterling wrote in an email.

But even given the breadth of the case, which took two months to try, the appeals are stretching out nearly double the average length of time for a criminal appeal in federal court. Perhaps the cause is the complexity of the case or perhaps the delays may be related to reports that the US Attorney’s office is putting pressure on former Probation commissioner John O’Brien to spill all he knows as prosecutors continue to pursue the chance to haul lawmakers into court.

In May 2010, the Boston Globe ran its scathing series on patronage at the Probation Department. O’Brien was immediately suspended amid an ongoing investigation by the Trial Court following the Globe story and he and two deputies, Elizabeth Tavares and William Burke, were charged in federal court two years later. O’Brien, Tavares, and Burke were found guilty on July 24, 2014, and Judge William Young sentenced the trio four months later, with O’Brien receiving 18 months in prison, Tavares handed a 90-day prison term, and all three sentenced to probation.

Young refused to stay their sentences and ordered them to jail. But on Dec. 12, 2014, lawyers for the three officials filed appeals and were granted stays in their sentences because, as the three-judge panel wrote, “the court is persuaded of a sufficient probability that the appeals present a ‘substantial question’” that could result in the conviction being overturned.

The initial timetable called for the briefs to be filed on Aug. 10, but in July the court granted an extension to Oct. 9. The judges wrote, though, “We are disinclined to grant a request for further enlargement of this deadline.” In September, the court granted another delay to Dec. 7 at the defense request, again expressing the judges’ disinclination to allow further extensions. But once more, on Nov. 25, the panel allowed a defense motion for delay until Jan. 7, 2016, but this time was more forceful in drawing the line. “No further extension of this deadline should be expected,” the judges wrote.

According to the latest federal court data, the average length of time from filing the notice of appeal to issuing the final order in a criminal appeal in fiscal 2014 was 10.8 months; the Probation case will have taken 13 months to file briefs if the filing date is not postponed again. It typically takes another 6.4 months to complete a case after the briefs are filed. The court data indicate the First Circuit Court of Appeals based in Boston has the second lowest number of appeals among the 12 circuit courts and is among the slowest in dealing with them.

Each motion for delay by the defense in the Probation case has included a note that prosecutors do not oppose the request, despite the sentences hanging over the three.

“If someone is already incarcerated, then prosecutors aren’t normally in any rush” to expedite the appeal, said Suffolk Law School Professor Rosanne Cavallaro, a former private attorney and assistant attorney general who teaches, among other classes, criminal law. “If someone is out, they haven’t served their sentence, maybe there is a tiny bit more urgency from the prosecutors’ perspective. In my experience, if the parties agree, it’s really kind of a courtesy extended to the lawyer.”

There is the possibility that prosecutors are continuing to apply pressure to O’Brien to cooperate in an investigation of state lawmakers, and forcing him to serve his time could undermine that effort. The Globe reported in October that O’Brien has been forced to testify before a grand jury under a grant of immunity about what lawmakers did and knew regarding the patronage scheme.

But with the statute of limitations on the crimes themselves having expired in May, it is unclear what charges prosecutors are pursuing. The Globe story speculated some of those who testified could be investigated for perjury but they were, by and large, low-level state representatives. House Speaker Robert DeLeo did not testify at the trial, though prosecutors labeled him an unindicted co-conspirator. He did testify under oath to Paul Ware, hired by the Supreme Judicial Court to investigate the probation scandal. But it’s unclear whether that deposition could be used as the basis for federal charges.

“Ordinarily speaking, the federal prosecutors would be charging someone under a federal statute,” says Cavallaro, who emphasized she had not studied the probation case in depth. “I’m not sure what that federal nexus would be with a state investigation.”

The appeals also have an impact on the pensions for the three longtime state employees. When the sentences were handed down, the state Pension Board halted payments but did not revoke the pensions. A spokeswoman for State Treasurer Deb Goldberg said the board continues to pay out the monthly pensions in order for taxes to be deducted but then places the net amount in escrow, pending a final decision by either the Pension Board or the Appeals Court.

SJC seeks probes of DeLeo transcript leak

SJC seeks probes of DeLeo transcript leak

Asks US Attorney, AG, and Ethic Commission to investigate

THE MASSACHUSETTS SUPREME JUDICIAL COURT told House Speaker Robert DeLeo on Monday that it was asking three state and federal law enforcement agencies and its former independent counsel to investigate how a confidential transcript of a 2010 interview with DeLeo about hiring at the Probation Department came to be provided to the Boston Globe.

The Globe late last month published a front-page story suggesting that DeLeo’s sworn testimony on November 1, 2010, before Paul Ware, the independent counsel, was contradicted by lawmakers and other state officials during the trial last year of former Probation chief John O’Brien. The Globe said in the story that it had obtained a transcript of DeLeo’s testimony.

DeLeo responded with a strongly worded statement saying the Globe had distorted his testimony and taken his comments out of context. The Globe did not publish the transcript of the DeLeo interview, but said it stood by its story.

The Speaker subsequently wrote a letter to the SJC asking the court, which hired Ware to investigate hiring practices at Probation, “to formally investigate and identify the party or parties responsible for the knowing and malicious violation of the court’s order of impoundment and to hold such party or parties accountable for their actions, including referral to the appropriate authorities.”

In his letter on Monday to DeLeo, SJC Chief Justice Ralph Gants said the court only received a “brief excerpt” of DeLeo’s testimony. Gants said the full transcript, along with all of the other exhibits, was impounded and retained by Ware. Gants said Ware was also directed to supply all of his interview transcripts and other documents to the US Attorney’s office in Boston, the Massachusetts attorney general’s office, and the State Ethics Commission, which had requested them. Gants said all three agencies were instructed not to make them publicly available except under limited circumstances.

Ralph Gants, chief justice of the Supreme Judicial Court.

Ralph Gants, chief justice of the Supreme Judicial Court.

Gants said he was asking the US Department of Justice, the Massachusetts attorney general, and the State Ethics Commission to investigate the release of the DeLeo transcript and to inform the court what they find out. Gants said Ware was also being asked to explain procedures in place for securing the confidentiality of the DeLeo transcript.

In its successful prosecution of O’Brien for tampering with hiring practices at Probation to benefit the well-connected, the US Attorney’s office labeled DeLeo an unindicted coconspirator but never charged him or any other lawmaker with a crime.

“We do not know whether any of these agencies disseminated your transcript or, if so, to whom,” Gants wrote to DeLeo. “Nor do we know what restrictions, if any, the agencies may have imposed regarding further dissemination. Depending on who provided a copy of your transcript to the Boston Globe and the circumstances of such dissemination, the release of your transcript may involve a violation of professional ethics.”

In a January 2011 Globe story on DeLeo’s involvement with hiring at the Probation Department, the newspaper also reported that it had a transcript of his testimony before Ware. The 2011 story included a quote that was repeated a second time in the story that ran in the Globe in October. Andrea Estes, a reporter who worked on both stories, said in an email that the newspaper only had excerpts of DeLeo’s testimony in 2011 and now had the complete transcript.

DeLeo calls for probe of leaked testimony

DeLeo calls for probe of leaked testimony

Accuses Globe of taking quotes out of context

What follows is a statement issued by House Speaker Robert DeLeo in response to a Boston Globe story quoting sealed transcripts of his testimony before independent counsel Paul Ware, who was appointed by the Supreme Judicial Court to investigate hiring practices at the Probation Department. That investigation led to the federal prosecution and conviction of Probation chief John O’Brien and two of his top aides.

The Globe article that appeared today distorts completely my testimony on the Probation Department investigation by the Supreme Judicial Court and selectively quotes my testimony out of context.

For example, the article claims that I didn’t have a clue about the probation budgets being considered by the legislature.

The actual questions and answers involved one specific line item included in 7 years of state budgets, each state budget being for approximately $29 billion and each containing more than hundreds of line items and hundreds of pages.  I was asked if the numbers for the probation budget appeared to be correct.  I answered from memory that I didn’t have a clue.  That I could not speak to the specifics of any one line item in multiple state budgets of that magnitude is certainly understandable.

The article points out that I was unaware of a patronage system within the Probation Department that involved rigged hiring and promotional policies.  That is accurate.  I testified that I knew elected officials and others recommended candidates to the Probation Department but did not know how many were recommended or how many were hired.

The article repeats what has previously been reported on by the Globe, that Charles Murphy testified that he was told to spare the probation department of any budget cuts, a statement about which I have no memory. What the Globe conspicuously fails to report was that Mr. Murphy further testified he sought a budget cut of 10% from the probation budget but, in fact, the budget was cut 14 percent that year.  It is clear, under those circumstances, that the probation budget was not spared nor did I take any action to protect it from cuts. Unfortunately for the Globe, the facts don’t support its narrative.

The article also suggests that O’Brien played a role in my election as Speaker of the House and that jobs in the Probation Department were used to influence the votes of individual legislators.  Yet, not one legislator testified that their vote was secured by a job in probation or they were influenced in any way by a job offer for a constituent.  All testified under oath that no such action occurred.  Neither the Globe nor the United States Attorney has any evidence to the contrary because such conversations never occurred.

I testified truthfully and without immunity before Paul Ware and stand by the testimony I gave under oath.

It is quite disturbing that transcripts of testimony that were unavailable to me and under protective orders of the United States District Court and the Supreme Judicial Court are in the possession of the Boston Globe.  I ask that those violations of these court orders be investigated by the proper authorities.

What really happened at Probation's electronic monitoring operation?

What really happened at Probation’s electronic monitoring operation?

Last summer's trial raised questions but provided few answers

IT STARTED WITH Michael Bizanowicz, a dangerous sex offender who broke into a Woburn home in 2004 and raped and killed Joanne Presti and then murdered her 12-year-old daughter, Alyssa. The crime was so shocking that state lawmakers a year later passed a law requiring sex offenders on probation or parole to be outfitted with ankle bracelets that would allow state officials to track their every movement. By 2008, the law and other measures that followed had transformed the Electronic Monitoring Office at the state’s Probation Department from a sleepy little agency with a handful of workers into a multimillion-dollar operation with 58 employees.

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.

DeLeo was not alone. Lawmaker after lawmaker ducked questions about Probation, some of them in almost comical fashion. Rep. Byron Rushing of Boston played Mickey the Dunce when he was buttonholed in a State House corridor and asked who he recommended for an ELMO job.  Former representative Vincent Pedone, asked about the ELMO job he handed out, declined to comment. “The case is over and I wasn’t part of the investigation,” he says.

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.”

ELMO JOBS

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.

Anklebracelet

Probation took over the electronic monitoring operation in 2001 from the Department of Correction. Court records indicate the initial $504,000 budget for offices in Boston and Springfield was approved in an amendment filed by Rep. Thomas Petrolati of Ludlow, who nine years later the Globe would dub the “King of Patronage” at Probation.

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, who received an ELMO job, launched and then dropped a Probation investigation. (Photo State House News)

Sen. Marc Pacheco, who received an ELMO job, launched and then dropped a Probation investigation. (Photo State House News)

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.

ELMO FALLOUT

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.

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Madeloni critical of Sagan appointment

Madeloni critical of Sagan appointment

MTA chief wary of Baker’s pro-charter agenda

GOV. CHARLIE BAKER’S highly political appointment of Paul Sagan as the chair of the Board of Elementary and Secondary Education underscores educators’ concerns about the Baker administration’s public education agenda.

Sagan’s key involvement in education stems from his role as chairman of the Massachusetts Business Leaders for Charter Public Schools, which has a record of favoring the privatization of public resources.

Sagan has been a leader of the campaign to lift the cap on charter schools in Massachusetts, and it is disturbing that someone with that view will hold such a prominent place in overseeing public education. Commonwealth charter school supporters advocate for the expansion of a two-tiered education system funded by public dollars, and they do not deserve such a platform.

The Legislature and educators across the state have resisted lifting the charter cap because they know that doing so would not promote fairness and would further impair community oversight of public schools.

Sagan will replace Margaret McKenna as the chair of the Board of Elementary and Secondary Education, and we want to thank McKenna for her service in that role. We appreciate the leadership that she has brought to the BESE during her tenure as chair. She has been willing to consider all sides of every issue, and she has worked hard to provide the schools all children deserve.

The board needs qualified educators, not venture capitalists, setting the course for public education in the Commonwealth.

Barbara Madeloni is president of the Massachusetts Teachers Association.

Linsky says panel can’t probe Probation hiring

Aide: Post Audit barred from investigating Legislature

The chairman of the House Committee on Post Audit and Oversight says the panel does not have jurisdiction to investigate hiring practices at the state Probation Department because such an investigation would necessitate an investigation of the Legislature itself.

Republicans Rep. James Lyons Jr. of Andover and Marc Lombardo of Billerica asked Democratic Rep. David Linsky of Natick, the chairman of the post audit committee, to launch an investigation of hiring practices at the Probation Department under former commissioner John O’Brien, who recently was sentenced to 18 months in prison for running a rigged hiring system at the agency. The two lawmakers also asked Linksy to make referrals to the House Ethics Committee if any lawmakers were involved in the criminal activity at Probation.

Linsky, who was called as a witness at O’Brien’s trial in connection with a spate of hires that a jury deemed illegal gratuities, responded in a letter on Friday that said “our jurisdiction does not extend to the scope of your request.”

A Linsky aide noted that the statute establishing the post audit committee allows it to investigate virtually any aspect of state government “except any such agency or unit within the legislative branch.”

Lyons said he planned to review the law before responding, but expressed amazement at Linsky’s determination. “The judge has called it a massive corruption and the chairman of the Post Audit and Oversight Committee says he doesn’t have the statutory authority to investigate?” he asked.

The situation illustrates how difficult it is for the Legislature to investigate its own members and its own actions. In this case, the situation is even more delicate because House Speaker Robert DeLeo was named as an unindicted coconspirator in the Probation Department scandal. DeLeo has said the jury’s guilty verdicts cleared him of any wrongdoing, but he has never fully explained why the agency allowed him to steer jobs at a new facility in Clinton to his colleagues. Most of the people who were hired at the Clinton facility were hired sight unseen. Linsky, the chairman of the post audit committee, was one of the lawmakers who DeLeo’s office allowed to refer someone for a job at the Clinton facility.

Judge wants O’Brien, Tavares near homes

Urges imprisonment at Devens, Danbury

US District Court Judge William Young, who last week sentenced former Probation commissioner John O’Brien and his top deputy Elizabeth Tavares to surprisingly lenient prison sentences, has endorsed their requests to serve time in federal facilities close to home.

Without comment, Young recommended to the federal Bureau of Prisons that O’Brien, who lives in Quincy, serve his 18-month sentence at the minimum-security prison camp at Devens. He recommended that Tavares serve her 90-day stint at the low-security correctional facility in Danbury, Connecticut, the closest federal prison serving females to her Newton home.

Young’s recommendations are not binding on the Bureau of Prisons, which makes the determinations on where a convicted felon will serve his or her time. Former House Speaker Sal DiMasi, for instance, has been shipped around the country, spending most of his time in southern facilities, despite pleas from friends and family that he be placed at Devens, which has a medical facility where he could be treated for his advancing cancer.

Young sentenced O’Brien and Tavares, both 57, to prison after they were convicted of multiple counts of mail fraud, racketeering, and conspiracy. Former deputy commissioner William Burke III, 71, was found guilty of a single conspiracy count and Young sentenced him to one year of probation. The sentences were much shorter than laid out in federal sentencing guidelines and just a fraction of what prosecutors had requested.

O’Brien was also fined $25,000, while Tavares and Burke were each fined $10,000. Young has ordered O’Brien and Tavares to report to prison on January 12. All three will also lose their state pensions after more than three decades each in the Probation Department.

Legislative panel urged to probe Probation

Letter from 2 GOP reps focuses on DeLeo

Two Republican state representatives are asking the chairman of the House Committee on Post Audit and Oversight to investigate the “rigged hiring system” at the Probation Department and make referrals to the House Ethics Committee if any lawmakers were involved.

The letter from Reps. James Lyons Jr. of Andover and Marc Lombardo of Billerica summarizes some of the evidence presented at the trial of former Probation commissioner John O’Brien and two of his top aides, focusing heavily on House Speaker Robert DeLeo’s involvement in the case. Federal prosecutors named DeLeo an unindicted coconspirator, a charge DeLeo has called false and unfair. O’Brien and former aides Elizabeth Tavares and William Burke were convicted in July and sentenced last week. O’Brien received 18 months, Tavares three months, and Burke was placed on probation. O’Brien was also fined $25,000 and Tavares and Burke were each fined $10,000.

Lyons and Lombardo urged the Post Audit committee to investigate how the rigged hiring system was allowed to operate for a decade, to estimate its cost to taxpayers, to explore why other employees at Probation didn’t blow the whistle on the practice, and to determine whether the hiring practices at a new facility in Clinton were standard throughout the agency.

DeLeo, according to testimony at the trial, told several colleagues in the Legislature about job openings at the new Clinton facility and urged the lawmakers to recruit candidates for the positions. Several of those referred by the lawmakers were hired by O’Brien sight unseen. One of those lawmakers who referred a person for a job at the Clinton facility was Rep. David Linsky of Natick, the chairman of the House Committee on Post Audit and Oversight, to whom Lyons and Lombardo wrote their letter.

The other lawmakers cited in the letter because of their involvement with the jobs at the Clinton facility were Reps. Harold Naughton Jr. of Clinton, James O’Day of West Boylston, Michael Moran of Brighton, Kevin Honan of Brighton, Anne Gobi of Spencer, and former Rep. Robert Rice of Gardner.

“This Probation scandal goes right to the heart of what goes on in the Legislature,” said Lyons in a telephone interview. He added that Democrats in Massachusetts are constantly saying they favor a transparent and open political process. He said a Post Audit investigation into Probation is the best way to prove they mean it.

Linsky said his committee is reviewing the letter from Lyons and Lombard and declined further comment.

Tearful Tavares admits rigged hiring system

Says she wishes she had courage to stop it

Former deputy Probation commissioner Elizabeth Tavares, in a sobbing plea for leniency on her conviction for racketeering and mail fraud, publicly acknowledged for the first time that a rigged hiring system existed at the agency.

“No one is more remorseful than I,” said a weeping Tavares. “I appear before you today to say I wish I had had the courage to try to change it.”

Tavares, a lawyer and 30-year veteran of the Probation Department, told Judge William Young she now knows she could have done things differently. She asked Young to not send her to jail, pointing out that she has a 14-year-old daughter and she is the sole caretaker of her elderly parents who live with her.

“I regret my actions,” she said. “I didn’t have the wisdom [to change the system.] I bear responsibility for my family’s pain. I plead with this honorable court to spare my daughter, my elderly parents, and my loving spouse for my lack of courage.”

The tension was thick in packed Courtroom 18 on the fifth floor of the Moakley Courthouse on the waterfront as family and friends of former Probation commissioner John O’Brien and his two top aides, Tavares and William Burke III, anxiously awaited their future.

Assistant US Attorney Fred Wyshak and his team of prosecutors urged Young to hand down a stiff prison sentence for each defendant both as a deterrent to others as well as a message to the three former state officials who prosecutors say were neither repentant nor cooperative.

But, just before issuing his sentence, Young gave each defendant a chance to address the court. O’Brien and Burke declined but Tavares, 57, delivered an emotional plea for leniency that brought many observers, including O’Brien, to tears.

O’Brien and Burke left it to their attorneys to plead their cases, but the toll the trial has taken on each was obvious. Though Young heaped much blame on the “culture of corruption” that pervaded the patronage system on Beacon Hill, he left no doubt that he thought the trio were not mere bystanders but rather active participants in a scheme that was a fraud on taxpayers and innocent applicants who were passed over in favor of those with connections.

Young called O’Brien “the leader of this corrupt scheme” and said the jury found that all three were guilty of “lying, repeatedly lying, facilitating the lies of others, [and] suborning perjury.”

As Young continued to push back against defense attorneys’ characterizations of their clients, O’Brien was noticeably shaken at the defense table. One of his attorneys, Stellio Sinnis, kept putting his hand on O’Brien’s back, kneeding it in comfort, and occasionally putting his arm around the former Boston College lineman’s shoulders.

With Young seemingly ready to hand down a harsh sentence, O’Brien, 57, became increasingly distraught and his wife and three daughters, seated immediately behind him, dabbed tears streaming down their faces, the tension of the wait building with every moment, waiting for the hammer to fall.

John Amabile, the lead attorney for Burke, repeated his plea to Young that the 71-year-old Burke was a broken man. He told Young that Burke was about to lose his pension, as were the other two, and had to resort to finding a job to sustain him and his wife because, as a 37-year state employee, he had no Social Security. Amabile said Burke had just secured a job working on a potato farm, much like when he was a boy working his father’s farm.

With the jury finding him not guilty on nearly all counts save the conspiracy charge, Amabile argued that his client, whom he repeatedly referred to as “Billy Burke,” deserved no prison time, especially when compared to the scores of unindicted co-conspirators, including dozens of lawmakers and legislative leaders, who didn’t even get called to the stand, let alone charged.

“The government vindictively is asking you to impose the maximum sentence,” Amabile boomed. “Sending this 71 year old man to prison is unconscionable.”

When Young announced his sentences, which were a fraction of what prosecutors were seeking and far less than the sentencing guidelines, there was a sense of astonishment in the courtroom, especially given Young’s penchant for harsh sentences.. Young stayed O’Brien’s18-month sentence and Tavares’s 90-day sentence until January 12, giving them a chance to spend the holidays with their families. All three will appeal but they will be out of prison before their appeals are decided.

After Young left the bench, the tears continued to flow – but they were tears of joy as O’Brien went over and hugged Tavares and Burke and the three embraced each other and their supporters.