The state’s highest court today ruled that the chief justice for administration and management acted appropriately in rejecting the hiring of a probation officer who failed to disclose on his job application three of his six relatives working for the trial court.
The unanimous decision written by outgoing Chief Justice Margaret Marshall sided with her top lieutenant in a dispute over hiring practices at the probation department, an agency that is currently the focus of a patronage investigation by an independent counsel.
The ruling held that Robert Mulligan, the chief justice for administration and management, acted appropriately in nullifying the appointment of Stephen P. Anzalone Jr. even though Mulligan made his decision months after the 14-day period he was given to review it. The SJC held that “strong public policy” to keep the Probation Department free of nepotism trumped the Legislature’s 14-day guideline for approving or rejecting applicants.
“The Trial Court’s standards of appointment forbidding nepotism express the Commonwealth’s strong public policy against nepotism and the appearance of nepotism in government hiring,” Marshall wrote in the 10-page opinion. “The CJAM acted well within his discretion, to which we accord considerable deference, in concluding that the appointment of Anzalone would, at the very least, lead to the ‘appearance of nepotism,’ where Anzalone, if hired, would be the seventh member of his family to work in the Trial Court. That Anzalone might otherwise be qualified to serve as a probation officer, as he states, is beside the point, where the avoidance of the appearance of nepotism is properly among the standards of appointment.”
The decision comes as an investigation of patronage at probation by independent counsel Paul Ware is supposed to be wrapping up. Ware was appointed back in May after the Boston Globe’s Spotlight team published scathing reports about John J. O’Brien’s tenure as probation commissioner. The reports alleged that O’Brien hired candidates referred by lawmakers in return for bureaucratic autonomy for the probation department and its $160 million budget. O’Brien is currently suspended with pay pending the outcome of the investigation.
The Spotlight reports followed several by CommonWealth magazine about nepotism in the probation department, including the appointment of O’Brien’s daughter, Genevieve, who was hired in late 2004 on a temporary basis as an administrative assistant in the Probation Department’s Office of Community Corrections. Her permanent appointment was referred in 2005 to Mulligan, who took no action on it even though two advisory opinions from the state Ethics Commission gave the green light. Genevieve O’Brien continues to work on a temporary basis.
The Anzalone ruling noted that the Legislature in 2001 changed the statute governing the appointment of probation officers, taking the power to appoint, dismiss, and assign officers away from the chief justice for administration and management and giving it to the probation commissioner. Even with the change, however, the chief justice retained the authority to make sure that any appointment was done in compliance with Trial Court hiring procedures.
O’Brien hired Anzalone in August 2007, subject to the approval of Mulligan. Mulligan nullified the appointment in February 2008 because Anzalone only listed three of his relatives despite the application’s directive to list “any relatives, by blood or marriage, employed within the Massachusetts Judiciary.”
Anzalone identified his father, an assistant chief probation office in Malden; his sister, a probation office in Plymouth District Court; and his uncle, a court officer in Superior Court. He failed to list a cousin who was also a probation officer, another cousin who was a court officer, and a cousin through marriage who was a probation officer.
Mulligan said the faulty application nullified Anzalone’s candidacy. In a brief filed with the SJC, he went further, saying that even if Anzalone had listed all his relatives, his hiring would still be a violation of the Trial Court’s personnel policies regarding nepotism.
“[Mulligan] had ample discretion under the personnel standards to have determined, once he had learned how many relatives were already employed, that ‘enough is enough,’” Assistant Attorney General Ronald Kehoe wrote in his brief for the court.
Kehoe declined comment today. Anzalone’s Boston attorney, Kevin G. Powers, did not return a call and email seeking comment.
Anzalone, who was hired by the State Auditor’s office after being rejected at probation, charged that because Mulligan waited months rather than the two weeks the Legislature gave for him to act on appointments, his hiring should have been deemed approved. But Marshall wrote that lawmakers did not intend the two-week period to curtail Mulligan’s authority. Marshall called the statute “ministerial and directory” and cited the 7,000 employees in 103 court divisions that Mulligan oversees as making it impossible to act within 14 days on all appointments.
“Here the 14-day review … does not go to the ‘essence’ of the CJAM’s substantial authority over Trial Court personnel matters or to the validity of the review of proposed appointments,” Marshall wrote. “(W)e will not read into the 14-day review period a legal duty that would require the CJAM, notwithstanding his other weighty responsibilities, to review and investigate every prospective employment application within a two-week period, or lose the full breadth of his oversight authority over the applicant.”
The decision and the investigation come at a time when the probation service — and its nearly 2,200 jobs — are at the center of a power struggle on Beacon Hill. Gov. Deval Patrick is pushing to remove probation from the trial court and place it within the executive branch and pair it with parole. Court officials, including Mulligan, say they want probation to remain in the trial court although they want greater oversight over the agency.
In the budget this year, the Legislature ordered a committee to review proposals and return with a recommendation by the end of the year. They also allow Mulligan more discretion in moving funds slotted for probation to cover shortfalls elsewhere in the court system.
