THE STATE’S HIGHEST court has set a new standard for clerk-magistrates: Do your job.
In an unanimous opinion in May, the state Supreme Judicial Court set a precedent by terminating Barnstable District Court Clerk-Magistrate Robert Powers for failing to perform to expected standards and, when he did show up for work—often late—bullying staffers and members of the general public who had to appear before him. It was the first time that a clerk-magistrate with a lifetime appointment, in this case from former Gov. Mitt Romney, was removed from office for being bad at his job.
“We do not reach this conclusion lightly; we recognize that removal ‘strips the individual of the enjoyment of a position of distinction’ to which he had been appointed by the governor and approved by the Governor’s Council,” Associate Justice Ralph Gants wrote in the opinion. “The record demonstrates that from the date he started work at the Barnstable District Court through the time of the hearing, Powers fundamentally failed to do his job.”
The court’s job performance standard may be familiar to most people in the workforce, but for clerk-magistrates it’s the dawn of a new day.
“This is the first time in history that a clerk-magistrate has been removed who did not commit an act of moral turpitude or because of insanity,” says attorney Thomas Bean of the Boston firm Verrill Dana LLP, who represented the state’s Committee on Professional Responsibility for Clerks of the Courts in the case. “It certainly breaks the dam in that clerks know they can be held accountable for their performance, or lack of. I had faith that the SJC would stand by the canons of ethics they had promulgated.”
The ruling comes two years after CommonWealth first explored the insular—and seemingly untouchable—world of the state’s 82 appointed clerk-magistrates (“Reigning Supreme,” Spring, 2011). Among the things we found was that appointed clerk-magistrates are generally politically well-connected and, once in office, can stay until they’re fitted for a casket. There are no term limits, they don’t face voters, and, short of criminal behavior or mental illness, are not removed from office. (Now, you can make that were not removed from office.)
Powers’s attorney, Peter Haley, made the case that his client may have been a lousy boss, substandard clerk, and a generally nasty person, but that was no reason for him to lose his job.
“Generally, the acts which have caused the court to compel the removal of judicial officers are acts which involve some degree of moral turpitude, and not actions which could be more accurately described as simply falling below a common performance standard for the position,” Haley wrote in a brief to the SJC. “To hold otherwise makes any appointed judicial officer no different than any direct employee of the court.” Haley declined an interview request.
Bean says Powers’s defense was largely that his gubernatorial appointment meant he was accountable to no one once in office. While the court record is rife with anecdotes about Powers’s behavior, Bean says the former clerk was his own worst witness.
“We didn’t need to document any of it,” says Bean. “He admitted it before the committee.”
When CommonWealth was investigating clerk-magistrates for its story, Powers was a focus of the reporting. Several court employees said he had a spotty attendance record and was constantly tardy for work. Over the course of several weeks, we spot-checked Powers’s home in Hyde Park and his office at Barnstable court. On three of those days, Powers’s two cars were in his Hyde Park driveway while his parking space behind the court was empty or occupied by another employee. At least twice Powers’s blue Honda with a distinctive three-digit license plate pulled into the court parking lot between 9:30 and 10 a.m., an hour or more after the court had already opened for business. One of those times, Powers parked in an adjacent spot because his designated spot was taken. Several minutes later, a court employee dashed out and moved his vehicle.
The CommonWealth article did not include any reference to Powers’s name or habits because it could not be verified if he was on vacation or had other authorized days off when he was away from the court. Powers at the time did not return several calls and CommonWealth’s request for attendance and time documents was denied because court records are not subject to the state’s Public Records Law. The report on Powers indicates court officials began their own investigation of him in early 2011 and, later that year, transferred him to Taunton District Court to learn how to be a good clerk-magistrate, which became moot when the SJC terminated him.
The roll call of those removed from office for malfeasance is wafer-thin. Former Northampton District Court clerk-magistrate Janet Rowe Dugan was removed in 1993 for fixing tickets and showing favoritism toward friends in rulings as well as other official misconduct. Then-Framingham District Court clerk-magistrate Anthony Colonna, at 85, was deemed incompetent to stand trial in 2000 for assaulting a court employee but remained on paid suspension until he died five months later.
The bar that the SJC set in removing Powers from office was “the public good,” an undefined standard that will now have clerk-magistrates on alert and looking over their shoulders. “We conclude, after considering the totality of the circumstances, that the public good requires his removal,” Gant wrote in the opinion.
But Powers and any other clerks who lose their jobs for doing them poorly won’t have to fear for their retirement. Jon Carlisle, a spokesman for state Treasurer Steven Grossman, says because Powers was removed for his job performance, and not because of any criminal conviction, he will retain his pension. Powers will receive about $76,000 a year in retirement, based on his nearly 35 years in state government as a probation officer and assistant district attorney and his three largest-earning years, which came as clerk-magistrate at about $110,000 a year.
Bean says he’s already heard “anecdotally” that some clerks have “cleaned up their act” as a result of the ruling, though he wouldn’t name names.
