Report blasts 'pervasive fraud' in hiring at Probation Department

High court seeks immediate firing of commissioner, suspension of top aides, as counsel's report calls them "potential targets'' for prosecution

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By Globe Spotlight Team
November 18, 2010

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This story was reported by the Globe Spotlight Team, reporters Scott Allen, Marcella Bombardieri and Andrea Estes, and editor Thomas Farragher. It was written by Allen.

The state's highest court, armed with a special counsel's report that details widespread "abuse and systemic corruption'' in the state's Probation Department, said today the senior court officials will move to fire Probation Commissioner John J. O'Brien, suspend several of his top deputies and forward the report to prosecutors for potential criminal investigation.

The Supreme Judicial Court's stunning announcement came as the court unsealed a devastating report from an independent counsel that concluded that O'Brien and other probation leaders "committed pervasive fraud against the Commonwealth" for years, creating a phony hiring process to hide the systematic funneling of hundreds of jobs to politically-connected candidates.

The independent counsel, Paul F. Ware Jr., called for the immediate dismissal of O'Brien and some deputy commissioners for "abuse and systemic corruption," and said that the group are "potential targets" for prosecution.

The Supreme Judicial Court, in a statement, strongly embraced Ware's conclusions.

"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,'' according to a statement from the SJC. "Corrective measures must now be taken to repair the damage wrought by the conduct laid bare by independent counsel's investigation.''

Ware said that literally dozens of probation employees actively participated in "rigging" the interview process to create the appearance of a fair system when, in fact, O'Brien pre-selected candidates for practically every job opening in the 2,000-employee agency down to entry level clerical workers.

The 307-page report bristles with examples where O'Brien and his staff knowingly hire and promote inferior candidates -- and, in one case, a convicted felon - to probation positions to placate key legislators who control his budget. At one point, Ware wrote, O'Brien became furious at a probation supervisor because she refused to go along with a plan to hire a former state senator's son who was both a felon and a former heroin addict. O'Brien hired Douglas MacLean anyway. The supervisor was banished to do audits far from her home.

"The fraud begins at the top with Commissioner O'Brien, and it extends through most of the hierarchy of the department who participate in interviewing candidates for hiring and promotion," wrote Ware, a prominent private attorney tapped by the state's highest court to investigate the Probation Department after a Globe Spotlight Team report in May documented its deep culture of politicized patronage hiring and described probation as "an employment agency for the well-connected."

O'Brien, who declined to cooperate with Ware's investigation, was not immediately available for comment today In an interview with the Globe earlier this year, he defended his hiring practices as being based on merit.

In its statement, the Supreme Judicial Court instructed acting Probation Commissioner Ronald P. Corbett to report by Dec. 1 on disciplinary actions to be taken against "those senior officials found most responsible for the reported abuses."

The court also forwarded a copy of Ware's report to US Attorney Carmen Ortiz, state Attorney General Martha Coakley, state Inspector General Gregory Sullivan and the Office of the Bar Counsel of the Board of Bar Overseers "for such actions as any of them may deem appropriate."

In addition, the SJC established a task force to be chaired by former Attorney General L. Scott Harshbarger to comprehensively review of hiring and promotion within the Probation Department.

"The steps that the Justices take today," the court said, "are necessary to ensure that the right of every individual to the fair, effective, and impartial administration of justice is protected."

Ware, in his investigation, also pursued the Spotlight finding that probation was beset with a "pay to play mentality" in which scores of job seekers made contributions to legislators in apparent hopes of favored treatment. Ware said he could not prove that individual politicians got jobs for people directly in exchange for campaign contributions, which could violate state and federal bribe statutes. But he said statistical evidence shows that legislators tried much harder to get jobs for people who gave them campaign contributions. Ware said his job was to investigate problems in probation, leaving it to others to probe whether legislators broke the law, too.

Ware concluded that O'Brien as well as his deputies Christopher J. Bulger, Elizabeth V. Tavares, Francis M. Wall as well as retired deputies William H. Burke III and Patricia Walsh may have committed state and federal crimes that could include fraud, bribery, conflict of interest and illegal solicitation of campaign contributions from probation employees. Ware also said that Tavares and Bulger, both attorneys, should be referred to the Board of Bar Overseers for possible disbarment.

A spokeswoman for the Probation Department said today that Tavares, Wall, and Bulger are not available and declined the Globe's request for interviews.

The exhaustive and finely-detailed report, based on the testimony of nearly 100 witnesses and the review of 525,000 documents including internal emails and computer hard drives, paints a stark portrait of corruption that has flourished in the 12 years since O'Brien was named commissioner. The report suggests that ethical standards slipped so far that O'Brien himself was soliciting political contributions for key legislators such as state Representative Thomas M. Petrolati in the state office building cafeteria, which would be a violation of state law.

O'Brien also urged employees to donate money to state Treasurer Timothy P. Cahill in 2005 just when O'Brien's wife was under consideration for a job under Cahill. Laurie O'Brien got the job shortly after probation employees gave $4,000 to Cahill. O'Brien's fundraising for Cahill "was an apparent violation of the law and an abuse of O'Brien's authority," Ware concluded.

The special counsel makes it clear that O'Brien, a protege of former House Speaker Thomas M. Finneran, was supporting legislators' job candidates in exchange for a bigger probation budget. O'Brien's political aides methodically kept track of legislators' favored candidates for jobs, showing that legislative leaders received by far the most patronage hires, Ware found. O'Brien had a separate spreadsheet to keep track of former House Speaker Salvatore F. DiMasi's candidates, the special counsel reported.

"Generous appropriations for the Probation Department were linked to O'Brien's willingness to systematize fraudulent hiring and promotion on a pervasive scale," wrote Ware, noting that the state Legislature gave probation $25.4 million more than the state Trial Court requested between 2006 and 2009.

O'Brien, who was suspended with pay the day after the Globe Spotlight story in May, initially told Ware that he would fully cooperate with the investigation, and in his only interview with the Globe, he forcefully defended his hiring practices. "We select the most qualified individuals to carry out the responsibilities in a professional and competent manner," O'Brien insisted.

But O'Brien, along with seven of his employees, declined to answer Ware's questions under oath, citing their constitutional rights against self-incrimination. O'Brien would not even confirm that he had obeyed the Supreme Judicial Court's order against destroying any documents that Ware might need for his investigation.

As a result, Ware warned, "It is thus possible that documents O'Brien considered damaging were withheld and/or destroyed."

Finneran and Petrolati also declined to answer questions under oath about their role in probation hiring, citing their constitutional rights. Finneran was the key architect of a 2001 law change that consolidated most hiring and firing power in O'Brien, his one-time Dorchester neighbor and former jogging partner. Finneran resigned in 2004 in the face of perjury charges and later pled guilty to obstruction of justice in a legislative redistricting case.

Petrolati, known to some colleagues as "the king of patronage" for his influence over Probation Department hiring in Western Massachusetts, had unsuccessfully appealed to the Supreme Judicial Court to avoid testifying before Ware altogether, claiming Ware had no authority to question legislators. In the end, Petrolati was compelled to testify, but he and his wife Kathleen, an $88,058-a-year Probation Department manager, declined to answer Ware's questions.

Ware presents evidence that O'Brien's leadership was compromised from the start, noting that the chief justice who appointed him in 1997, the late John J. Irwin Jr., apparently lowered the educational standards so that O'Brien, who graduated from Boston College with a bachelor's degree, would qualify. Shortly after he took office, O'Brien hired two of Irwin's relatives, one of whom, Eugene Irwin, also declined to answer questions from Ware's investigators.

The two judges who succeeded Irwin as the court's chief justice for administration and management openly battled with O'Brien over his hiring practices, while O'Brien fought to limit the court's involvement. Judge Robert A. Mulligan, who now holds that job, in 2005 accused O'Brien of deliberately scheduling a staggering number of interviews -- 3,800 for a total of 52 positions -- so that judges would not have time enough to play a meaningful role in vetting applicants.

"I can only conclude that you have decided on 3,800 interviews so that ... judges would not want to be involved," Mulligan wrote to O'Brien, in a letter cited in Ware's report.

Likewise, the union that represents probation officers lost virtually every challenge they made to what they perceived as politically-motivated hires because, Ware said, O'Brien's hiring procedures looked impeccably fair on paper. That impression, Ware said, was an illusion. And it may have been fostered by repeated perjury by O'Brien's supervisors in arbitration proceedings. Ware noted that, in 38 grievance cases he reviewed, probation managers never acknowledged to the arbitrator that O'Brien sent lists of "preferred candidates" for job openings.

O'Brien's lists of "preferred candidates," often delivered on yellow post-it notes, were not mere suggestions. Numerous probation managers said they felt compelled to support O'Brien's picks unless, as retired Deputy Commissioner Burke told Ware, they were "really really -- and I mean really bad." Otherwise, several testified to Ware, they feared they would be punished.

Regional supervisor Ellen Slaney said O'Brien became "physically upset" with her when she rejected the son of former state Senator William "Biff" MacLean for a probation job because the younger MacLean was a convicted felon. O'Brien himself had originally opposed hiring Doug MacLean, too, but he told MacLean's supervisor that he was getting pressure from the Legislature to relent. Eventually, he hired MacLean anyway and placed Slaney in a sort of professional exile, transferring her from a job near her home in southeastern Massachusetts to a posting in Western Massachusetts.

Likewise, retired supervisor Edward Dalton told Ware he was reassigned from doing interviews when he tried to block one of O'Brien's favored candidates. Dalton even received an ominous voicemail from probation's personnel director, Janet Mucci, which he preserved and gave to the independent counsel.

"If people are uncomfortable with this (rigged interview process) he's going to have to remove people from doing interviews," Mucci said on the tape. Dalton was subsequently removed from doing interviews.

Meanwhile, the lawyers who were supposed to ensure that the agency followed the law remained "mum," Ware found, suggesting that they were either "unaware of massive fraud in the department" or "aware of the fraud but acquiesced in it." As a result, Ware said, that makes them either "incompetent or dishonest."

In addition, he said that the current legal counsel to the department, Deputy Commissioner Christopher J. Bulger, the son of former Senate President William Bulger, was dishonest in his testimony and had "irrevocably compromised" his credibility by continuing to advise O'Brien after his suspension. Bulger admited he talked to the suspended commissioner several times a week.

Ware also said their legal failings may have opened the Probation Department up to legal liability from some of the job candidates who were passed over in favor of the politically-connected. But he said it was probably too late for the Probation Department to remove employees who got jobs because of connections instead of ability, because of state personnel and union rules.

Ware found that O'Brien's patronage machine was so extensive that some legislators rated their people on a scale of one to four, often giving the highest rating to people who were also campaign contributors. On one "Sponsor List" compiled for O'Brien, Ware found that 62 percent of the legislator-backed candidates got probation jobs -- if they also gave money. But only 25 percent of sponsored candidates who did not give money got probation jobs.

Ware's report, ultimately, focuses on the Probation Department, leaving many unanswered questions about which legislators were most responsible for boosting probation's budget and whether they were explicitly trading state money for jobs.

However, Ware's conclusion about O'Brien himself is unambiguous.

"The evidence is overwhelming that he encouraged extensive falsification of interview results at all levels of probation,'' the independent counsel concluded. O'Brien's refusal to cooperate "supports an inference that the testimony of the many witnesses who did cooperate is accurate. That evidence alone is sufficient for the court to take such actions against Commissioner O'Brien, including removal from his position and further sanctions as the court may determine."