Probation hiring rife with abuse, corruption

Because of a reporting error, the original version of this story attributed Edward McDermott’s testimony to the wrong person regarding retaliation and intimidation against people who did not comply with the commissioner’s wishes in the probation’s hiring procedures.

   The state’s Probation Department is rife with “systemic abuse and corruption” where top officials falsify scores for politically connected candidates to ensure they get hired and keep the money flowing from an open Beacon Hill spigot, a long-awaited report concludes.

The report, issued today by the independent counsel appointed by the Supreme Judicial Court to investigate hiring practices at the embattled agency, concludes that nearly all top probation officials should be suspended or terminated and all evidence forwarded to state and federal prosecutors for potential criminal charges.

“The entire [hiring] process is intended to create the appearance of a rigorous and objective process designed to identify the most qualified candidates based on individual merit,” Independent Counsel Paul Ware writes in the 307-page report’s summary. “That appearance could not be more illusory. Hiring and promotion processes have been fraudulently orchestrated from beginning to end in favor of connected candidates.”

In a statement accompanying the release of the report, which had been impounded since Ware submitted it on Nov. 9, the SJC announced it would take steps to fire suspended Commissioner of Probation John O’Brien; placed three of his top deputies on administrative leave pending disciplinary action including termination; and launched a task force headed by former attorney general Scott Harshbarger to perform a top-to-bottom review of all hiring and promotion in the judicial branch.

“The Report describes in careful detail a systemic abuse and corruption of the hiring and promotion processes of the Probation Department,” the justices’ statement says. “Such abuse and corruption are intolerable and are a betrayal of the just expectations of the public and of employees in the judicial branch, including those in the Probation Department.

“Corrective measures must now be taken to repair the damage wrought by the conduct laid bare by Independent Counsel’s investigation, and to restore the integrity of all aspects of the Probation Department,” the justices said.

Ware’s report is a damning compilation of overt and covert manipulation of the patronage system that fostered a “pay to play” mentality by those seeking jobs in the department as well as those forced to make political donations after getting passed over for promotion.

Ware, who was tasked with the investigation after a Boston Globe Spotlight series in May placed a bulls-eye on the agency, said the recommended candidates came largely from legislators’ contribution lists but were also referred by “judges, mayors, city councilors, prosecutors and other members of the executive branch.”

But most of his focus was on powerful lawmakers with ties to O’Brien, a friend and one-time neighbor of former House Speaker Thomas Finneran, who was one of several lawmakers and probation officials who invoked their Fifth Amendment rights when subpoenaed to testify before Ware.

The report cites early testimony from Deputy Commissioner Elizabeth Tavares who initially revealed she would get a list of favored candidates from O’Brien and then pass them on to regional interviewers. Tavares later invoked the Fifth Amendment but Ware said her testimony showed she “is at the heart of the sham selection process.”

Former Deputy Commissioner William Burke testified a candidate recommended by O’Brien faced little danger of not being hired. In one exchange with Ware’s investigators, Burke said most candidates were rubber-stamped if the word came from O’Brien regardless of qualifications.

“Q. But at the Associate Probation Officer level, when you received a name from the Commissioner’s office, you approved the name, isn’t that correct?”

“A. Yeah, if, unless you were, and I’m not making this as a joke against these people. . . unless you were really, really, and I mean really bad …  everybody kind of made the list. I mean, you had to be really bad.”

Ware found that O’Brien’s office maintained a “Sponsor’s List” that included an applicant’s basic information as well as a checklist of who was recommending the candidates. The list, which CommonWealth reported last month, was maintained by O’Brien’s legislative liaisons, including Maria Walsh who before she was hired by O’Brien was a paralegal for Finneran’s private law practice and a staffer on the House Ways and Means Committee when Finneran was chairman.  For the period between 2004 to 2007 alone, the list was 130 pages long.

“The Sponsor Lists, in other words, are not simply lists of recommenders,” according to the report, “They are more narrowly a recording of the support being given to candidates by individuals with political sway over the Department.”

The Globe series highlighted the influence it says state Rep. Thomas Petrolati held over probation appointments but Ware says there were many more egregious examples of legislators who regularly won jobs for their supporters. Petrolati did not make a list of the Top 10 legislators Ware compiled to show connections between contributors recommended for probation jobs and what percentage were hired.

Ware says there was testimony that the most politically powerful legislators called O’Brien’s office to champion a candidate. Among those cited in Ware’s report are former Speakers Finneran and Sal DiMasi as well as current Speaker Robert DeLeo; former Senate President Robert Travaglini and his successor, current Senate President Therese Murray; powerful Senate committee chairmen such as Steven Panagiotakis, Marc Pacheco, Steven Baddour, and Mark Montigny; and House members such as Eugene O’Flaherty, co-chairman of the Judiciary Committee.

Ware used Montigny, who was the focus of a related probation story by CommonWealth this summer, as an example of legislative influence by showing that of the 23 contributors Montigny recommended for jobs, 11 were hired. Of the 31 non-contributors whose names he forwarded, only one was hired. Ware said there was sufficient evidence that a “pay to play” mentality was prevalent among applicants, if not the politicians themselves.

“As a group, the legislators successfully sponsored 62.2 percent of the contributors, but only 25 percent of the non-contributors,” Ware writes. “The sponsored contributors, in other words, were almost two and a half times more likely to be successful in being hired or promoted than the sponsored noncontributors.”

Ware says an entire revamping of the hiring process needs to be undertaken and says just returning the oversight to the judges would not ensure the same problems would surface anew.

“To paraphrase James Madison, if Probation Department employees and judges were angels, there would be no need to guard against fraudulent hiring and promotion,” he writes. “But they are not; numerous witnesses testified that influence ridden hiring and promotion occurred in varying degrees when judges controlled personnel decisions.”

One of the more hard-hitting segments of the report involves outgoing state treasurer and failed gubernatorial candidate Tim Cahill, who lives near O’Brien in Quincy and who hired O’Brien’s wife and one of his daughters at the Lottery and the Treasurer’s office. Ware’s report documents the pressure a number of O’Brien aides put on probation employees to donate to Cahill’s campaign coffers at the same time Laurie O’Brien was trying to get a plum position at the Lottery.

Ware found that a fundraiser for Cahill in July, 2005, at the cafeteria at One Ashburton Place which houses numerous state offices, probation employees donated nearly $6,000, much of it from probation workers who had never donated to Cahill before or since.

“Based on the evidence, Independent Counsel concludes that Commissioner O’Brien did in fact cause contributions to be solicited from Probation Department employees to Treasurer Cahill in an effort to assist his wife in obtaining a desirable position within that agency,” Ware concludes. “A Probation Department employee, Edward Ryan, with childhood connections to Cahill further lobbied Treasury on Laurie O’Brien’s behalf. The evidence strongly suggests, although current and former Treasury officials deny it, that these efforts by Commissioner O’Brien had the desired effect, assisting Laurie O’Brien in obtaining a position in customer service at Treasury.”

Not everyone at probation was comfortable with the system but Ware says those who weren’t on board were targets of retaliation. A regional supervisor, Ellen Slaney, testified she was told by O’Brien that because of budget cuts, preference would be given to legislators’ recommendations in order to curry favor. In 2000, Slaney said, she balked at hiring Douglas MacLean, son of former Sen. William “Biff” MacLean, because the younger MacLean had a felony drug record.

O’Brien hired MacLean and moved Slaney and another colleague who did not go along to  lower positions. MacLean had a long history of drug addiction and jail time. He served his sentence and got sober, returning to school to earn degrees in sociology and criminal justice before O’Brien hired him. Slaney later returned to her position and did what was asked of her by O’Brien and his top aides.

Ware also wrote that what happened to Slaney and others if they didn’t fall in line was a message to all probation employees of the perils of not following orders. Testimony by Edward Dalton, a probation supervisor, Edward McDermott, an assistant to the deputy commissioner, shows he got the message loud and clear.

Q. Can you tell me why you felt you had to comply with selecting, if you will, the commissioner’s choice as opposed to your saying this is a rigged process, I’m not going to participate in that?

A. Quite frankly, because I was afraid for my job. And if I can interject, I had also heard that regional supervisor Ellen Slaney had failed to comply with a request and that she was brought into the office, berated and threatened, and that was not lost on me. And I was three or four years into the probation service at 52 years of age or whatever and I felt that if I didn’t comply with a directive by my supervisor,that I might be in harm’s way.

Q. So in effect you felt compelled to go along with this scheme because you felt there would be sanctions if you didn’t score the commissioner’s choice more highly than he deserved?

A: I’m not very proud of it, but yes.

But Ware said it was clear that those in O’Brien’s inner circle shared his approach to placating powerful officials in return for budgetary increases and autonomy from court oversight. Deputy Commissioner Christopher Bulger, son of former Senate President William M. Bulger, admitted to Ware during testimony that he was feeding information to O’Brien even though the commissioner was suspended. The information included the names of people who had been subpoenaed by Ware.

Ware says that action shows Bulger, who is the agency’s lead counsel, is incapable of performing his duty and is clueless as to why most of these actions are a violation of law and regulation. Ware recommends that Bulger be suspended as well and his actions referred to the Board of Bar Overseers for possible disbarment.

Ware said Robert Mulligan, Chief Justice of Administration and Management for the Trial Court who is ostensibly O’Brien’s boss, was aware of the hiring abuses but did little to stop the problems. While Mulligan has said publicly his hands were tied when it came to stopping the abuse, Ware says Mulligan’s view of his powers were too narrow. One exchange between investigators and Mulligan shows he could have intervened earlier.

Q. The statutory language or the regulatory language of the policies and procedures manual indicates … that hiring shall be of, quote, the most qualified individuals. And it goes on … to say that such hiring shall be, quote, based on their qualifications. Didn’t that give you the authority to reject, in the event that you determined that hiring with respect to the most qualified individual did not occur?

A. I suppose it — on the face of it, it may — I guess it did give me the — but to — yeah. I’ll answer — leave the answer the way it is.

Q. Apart from whether you would have known the intricacies of particular recommendations and how you could be expected to fully understand either the qualifications of the proposed appointment or whether an individual was most qualified, am I missing something or does the regulation appear to give you the power to reject, according to the statute, if standards are not met, including the most qualified applicant?

A. No. I think you’re correct. I believe you’re correct.

Ware, though, said there were extenuating circumstances that Mulligan was facing.

“Despite his efforts and his belief that the hiring process was dishonest, Justice Mulligan was faced with a gargantuan task, a hostile Commissioner determined to subvert him, and pervasive dishonesty among the Commissioner, his senior staff (including Legal Counsel) and their communications with the Court even when the Chief Justice specifically sought assurance that an individual selected was the most qualified candidate,” Ware wrote.

But Ware’s most searing and damning observations were aimed at O’Brien.

“It is critical that the Commissioner of Probation be a person of demonstrated ability and unquestionable integrity,” Ware writes. “Commissioner O’Brien is neither and should not be permitted to return to the Probation Department.”