Rep took no action on bid for lifetime tenure
Former Probation commissioner John O’Brien came to see then-Ways and Means Chairman Robert DeLeo in September 2007 lobbying for legislation that would give him much greater powers, a bigger salary, and lifetime tenure. No legislation ended up being filed, but seven months later DeLeo started steering jobs at Probation to candidates recommended by his colleagues in the House.
James Kennedy, who worked as an aide to DeLeo from 2004 to 2011, testified at the federal trial of O’Brien and two of his top aides that he was at the meeting in DeLeo’s office when O’Brien pitched legislation that would eliminate oversight of his agency by the Trial Court’s chief justice for administration and management. Kennedy, who now serves as the House legal counsel, said the proposal also would have set O’Brien’s salary $1,000 below what the chief justice is paid and given him lifetime tenure.
Kennedy said O’Brien offered two possible approaches to changing the law, one via amendments to the existing law and the other a rewrite of the law. Kennedy said he recommended both approaches be rejected. He said he thought O’Brien’s proposal for rewriting the law was unconstitutional while the amendment approach was unacceptable because of the lifetime tenure provision.
Kennedy recalled no details from the meeting, including what O’Brien and DeLeo said to each other. For his testimony, the lawyer relied on a written summary of the meeting he prepared afterward.
Seven months later, DeLeo and his aide Leonard Mirasolo began handing out Probation jobs at a new Electronic Monitoring (ELMO) office in Clinton to members of the House. Former Rep. Robert Rice of Gardner and current Reps. Anne Gobi of Spencer, James O’Day of West Boylston, Harold Naughton of Clinton, Kevin Honan of Brighton, and Michael Moran of Brighton all said either DeLeo or Mirasolo offered them the opportunity to recommend someone for a job at Probation’s ELMO office in Clinton. In several cases, the recommended person was hired sight unseen after submitting an application.
Rep. David Linsky of Natick testified on Thursday that Mirasolo called him in April 2008 asking if he could recommend anyone for a job at the Clinton facility. Linsky recommended Richard Philben, a long-time friend who served as his campaign manager in 2006. Linsky said Philben, who had a law degree but hadn’t passed the bar yet, was highly qualified for the job, which paid $40,446.
Like the other reps who placed people at the Clinton facility, Linsky said the job given to Philben had nothing to do with his support for DeLeo in the race for Speaker. DeLeo won that post in early 2009.
DeLeo himself on Wednesday said he never traded jobs for votes, essentially rebutting the testimony of Edward Ryan, the Probation Department’s former legislative liaison, who said O’Brien had told him the jobs were designed to help DeLeo become speaker. DeLeo has not addressed why he was handing out Probation jobs in the first place.
The debate about DeLeo’s involvement with Probation hiring came as the prosecution wrapped up its case running through a series of witnesses to tie up a host of loose ends.
Kennedy, for example, testified about a fiscal year 2001 budget amendment that directed $504,000 to Probation to hire 14 people.
William Marchant, the chief financial officer of the Trial Court, testified that every division of the court system saw a budget cut in fiscal 2009 except for Probation, where the budget rose from $134.7 million to $142.3 million.
Marchant also produced a document at the last minute suggesting that Robert Mulligan, the former chief justice for administration and management, was correct when he testified that he had transferred $4 million into Probation to help cover a budget shortfall in fiscal 2004. Marchant produced a document showing the transfer. Mulligan had said the following year he had to take money from the Probation budget and transfer it to other court agencies. The year after that, the Legislature barred him from making such fund transfers, which has been dubbed transferability at the trial.
Toby Morelli, deputy chief of staff to DeLeo, said he was at a meeting sometime in early 2005 when O’Brien and DeLeo discussed the issue of transferability. He offered few details on what was discussed other than to say that he brought the issue to the attention of Mirasolo, who Morelli said “had a relationship” with O’Brien.
Kathleen Petrolati, a Probation employee who is the wife of Rep. Thomas Petrolati of Ludlow, testified that she obtained a job as an electronic monitoring coordinator in 2000 even though she lacked a college degree and had limited skills. She said what she knew about electronic monitoring going into the job was what she learned from an Internet search.
Petrolati landed a job paying $47,646 in Springfield, where she worked with Mindy Burke, the daughter of William Burke III, who is a codefendant with O’Brien at the trial. Petrolati’s salary increased to $61,307 in 2004. She made $108,186 last year.
Prosecutors also sought to flesh out the promotion of Bernard Dow, who moved from a probation officer’s job in Worcester to a first assistance chief probation officer’s job. Daniel Toscano, a former aide to former speaker Salvatore DiMasi, said Dow approached him for help. Toscano said DiMasi authorized him to contact O’Brien on Dow’s behalf.
Paul LoConto, the first justice of the Worcester District Court, said Dow got the job even though he wasn’t his first choice. LoConto served on the panel that interviewed candidates for the job, but his testimony was hampered by the fact that he remembered absolutely nothing about the panel. He did review his notes from the interviews and his scoring sheet and seemed to suggest that someone may have falsified his scoring sheet.
Judge William Young continued to insert his perspective into the trial. When Petrolati, the wife of a state rep, testified about working with Mindy Burke, the daughter of a high-ranking Probation official, Young cautioned: “Nepotism is not an issue in this case.”
After testimony concluded for the day, Young ruled that prosecutors could provide the jury with a so-called summary sponsor list, showing a breakdown of who applied for jobs at Probation and who their sponsors were. Prosecutors have used the sponsor lists to show how organized patronage was at the agency, but Young said: “There’s nothing wrong with having a sponsor list.”