Judge invalidates promotions of 11 Probation Dept. employees
Arbitrator will review 11 questionable cases
A Suffolk Superior Court judge has vacated 11 promotions made by disgraced Probation Commissioner John J. O’Brien, giving a second chance to applicants who had long protested that they were passed over in favor of less qualified, politically connected candidates.
The unusual ruling, which calls for an arbitrator to determine whether the right candidates were selected for promotions dating back to 2003, marks the first legal effort to erase O’Brien’s legacy of political favoritism at the agency, which supervises criminals serving their sentences in the community. A 2010 Globe Spotlight report found that O’Brien hired or promoted at least 250 job candidates with personal or political connections to politicians or court officials.
O’Brien and his top deputies all have resigned or retired, and federal criminal charges are widely expected against at least a dozen probation officials and state legislators in the hiring scandal. But, until now, there have been no concrete steps to aid the probation employees whose careers were stunted because they lacked the inside connections to advance.
“Finally, someone has taken affirmative action to address the misdeeds in these cases,’’ said David J. Holway, president of the National Association of Government Employees, the union that sued the state court administrators over the probation promotion process. “Hopefully, we’ll get an arbitrator who will take a fresh look at these cases, and justice will be done.’’
The ruling by Justice Thomas E. Connolly focuses on 11 cases in which disappointed applicants for promotions officially challenged the decisions, taking their case to an arbitrator to determine who should get the job. In all 11 cases, the arbitrator sided with O’Brien’s choice, based in part on assurances from O’Brien deputies that the hiring process was fair and transparent.
However, after the Globe Spotlight report, the Supreme Judicial Court appointed an independent counsel, who found that, under O’Brien, “hiring and promotion processes have been fraudulently orchestrated from beginning to end in favor of connected candidates.’’
Independent counsel Paul F. Ware Jr. found that O’Brien kept an extensive list of politically connected candidates, telling interviewers ahead of time who should be finalists for the positions. Ware found that O’Brien catered especially to legislative leaders such as former House speaker Salvatore F. DiMasi, who had more success in getting his candidates hired or promoted than any other legislator.
The union seized on Ware’s November 2010 report to challenge the entire promotion process. Union lawyer Michael F. Manning argued to Connolly that the past arbitration decisions should be tossed out because they were based on the lies of O’Brien and his deputies. Two of the deputies most involved in the arbitration cases, Patricia Walsh and Francis Wall, invoked their Fifth Amendment right to remain silent rather than answer Ware’s questions.
Judges infrequently overturn arbitrators’ decisions, but Connolly struck down 11 at once, based on a little-used provision in the law that allows the vacating of decisions that are tainted by corruption.
The ruling is “an opportunity to see justice done,’’ said probation officer Jason Harder, who lost out on a job at Hampshire Superior Court in 2005 to a candidate who had less experience and lacked Harder’s military background, but who was a longtime family friend of O’Brien’s top deputy. “My case speaks volumes about what’s been taking place the last 10 years that O’Brien was in power.’’
The candidate who beat out Harder, Christopher Hoffman, rose rapidly through the ranks and became chief probation officer in Hampshire Superior Court in Northampton. But he is now facing federal criminal charges that he intimidated a witness in the probation investigation. Hoffman, who allegedly called a subordinate a “rat’’ for speaking to FBI agents, is now on indefinite administrative leave from the department.
Despite the passage of time, Harder said he would like to be considered for the probation job in the Northampton court, which is near his home. He currently commutes to the district court in Belchertown 20 miles away.
Connolly’s ruling puts the Administrative Office of the Trial Court, the agency that oversees the courts, in an awkward position. The chief justice for administration and management, Robert A. Mulligan, fought a long-running battle with O’Brien, who used his legislative connections to limit Mulligan’s influence over hiring decisions. But, as the head of the court system, Mulligan is the defendant in the National Association of Government Employees lawsuit over probation hiring.
Critics, union leader Holway among them, have raised doubts about Mulligan’s commitment to ridding the process of corruption.
Mulligan’s office issued a statement saying he has no interest in defending “a fraudulent hiring process.’’
However, the statement said he wants to protect the rights of “innocent employees who received their jobs through merit’’ under O’Brien. At the court’s urging, Judge Connolly said that all employees who won the promotions in the disputed cases should be notified so that they can defend their selection.
Under Connolly’s ruling, the union and Mulligan’s office must select a single arbitrator to review all 11 cases and “determine whether the Trial Court violated the rights’’ of the disappointed job seekers by not promoting them.
The union also filed a federal lawsuit, seeking money damages for the employees bypassed in favor of politically connected applicants.
But that lawsuit has been on hold for months after state and federal prosecutors requested that no civil lawsuits go forward until they determine whether criminal charges should be brought.
So far, O’Brien and a former aide to former state treasurer Timothy P. Cahill are facing state criminal charges that they traded campaign donations from probation employees to Cahill for a job at the state lottery for O’Brien’s wife, Laurie.
But many more criminal charges are expected from a federal grand jury in Worcester that has been hearing testimony in the probation probe for months, possibly from DiMasi himself.
DiMasi, who was sentenced to eight years in federal prison last year in an unrelated corruption case, was recently transported to Massachusetts to appear before a Worcester grand jury, according to two people with direct knowledge of DiMasi’s travels. Because grand juries conduct their work in secret, it is not clear whether DiMasi has testified yet.
Union leader Holway said Connolly’s ruling sets a strong precedent for the legal battles over probation hiring that are yet to come.
“This is a strong indication that the old games are over,’’ he said.