Probation inquiry shifts to Legislature

Grand jury subpoenas House, Senate files

By Andrea Estes and Thomas Farragher
Globe Staff / December 16, 2010

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The criminal investigation into alleged rigged hiring at the state Probation Department has moved beyond the agency itself into the State House, where a federal grand jury has issued subpoenas for records and House and Senate leaders are retaining an outside attorney.

House Speaker Robert A. DeLeo confirmed the subpoenas but said he does not know whether any state lawmaker has yet been called to testify before the US grand jury that is considering charges, including fraud and extortion, in the patronage scandal that has implicated the top leadership of the 2,200-employee Probation Department.

“We are aware that certain records have been subpoenaed, including records under the control of the House of Representatives,’’ DeLeo’s office said in a statement to the Globe.

The speaker said the House of Representatives has retained attorney Thomas C. Frongillo of Boston “to represent the House in connection with the production of those records.’’

“To our knowledge, no individuals have been called to testify before any grand jury,’’ DeLeo said in his statement. “The speaker’s office has not been provided with a list of members or staff who have been called to testify, if such a list exists.’’

A spokesman for Senate President Therese Murray said that Senate records have also been subpoenaed and that Frongillo will represent the Senate, as well.

Frongillo’s law firm, Weil, Gotshal & Manges, has agreed to work for free.

“The requests are for documents,’’ Frongillo, a former federal prosecutor, said yesterday. “It’s possible at some point the US attorney would want people to testify about those documents.’’

Frongillo, who heads the Boston litigation practice of the large international firm, said the law practice agreed to waive its usual fee “out of civic duty’’ and in recognition that the state’s budget crunch has caused widespread program cutbacks.

“It would probably cause them sticker shock,’’ the attorney said. “Our rates are high.’’

It is unclear what documents are covered by the grand jury subpoenas, but in a letter to the Probation Department last month, US Attorney Carmen M. Ortiz ordered agency officials to preserve all documents that could be used as evidence in the criminal probe, including e-mails, laptop files, text messages, and all paper records.

A federal grand jury hears evidence from witnesses and has the power to subpoena records.

State Attorney General Martha Coakley has also opened an investigation into hiring and promotion practices at the Probation Department.

The criminal inquiries were triggered by a damning and highly detailed report by a special prosecutor appointed by the Supreme Judicial Court. Independent counsel Paul F. Ware Jr. said Probation Commissioner John J. O’Brien presided over “fraudulent hiring and promotion on a pervasive scale.’’

O’Brien, who was suspended in May the day after the Globe Spotlight Team reported widespread patronage practices within his agency, is still collecting his $130,000 annual salary.

A disciplinary hearing that may result in his termination has been scheduled to take place after the holidays.

In his report, Ware identified several lawmakers who benefited from O’Brien’s patronage system, including DeLeo and one of his top lieutenants, Representative Thomas M. Petrolati of Ludlow.

Ware found that while many rank-and-file legislators requested jobs, high-ranking lawmakers had the most success.

Salvatore F. DiMasi, a former House speaker, and Robert E. Travaglini, a former Senate president, had impressive track records placing job candidates, Ware found.

Other legislators who frequently sponsored probation applicants included Senate Ways and Means chairman Steven C. Panagiotakos and Senators Mark C. Montigny of New Bedford and Marc R. Pacheco of Taunton, the report said. All are Democrats.

The Globe has reported that the FBI and the IRS in Springfield were interviewing people about Petrolati’s connections with the Probation Department and his outside business interests.

Petrolati, who had been serving under DeLeo as the third-in-command in the House, agreed last month not to seek reelection to his leadership post.

Petrolati has had more influence than any other politician over the probation agency, where his wife and more than 100 financial supporters now work and where his contributors run 19 of the 25 probation offices between Worcester and the New York line.

In his report, Ware said O’Brien and other officials may have violated federal and state bribery laws.

O’Brien might have offered a “thing of value’’ to state legislators — jobs for friends, family, and supporters — in order to influence their “official acts,’’ including budget appropriations, Ware wrote. Or O’Brien might have committed bribery by asking for budget appropriations in exchange for appointing politically wired job candidates.

Ware said he was retained to investigate the Probation Department. He said he would leave it to others to examine the complicity of key politicians, who he said approved bountiful budgets with the expectation that jobs for supporters, family, and friends might follow.

“The evidence demonstrates that an understanding existed among certain legislators and O’Brien that generous appropriations for the Probation Department were linked to O’Brien’s willingness to perpetuate and systematize fraudulent hiring and promotion on a pervasive scale,’’ Ware said in his report.

“At least by 2000, a rigged process was in place by which O’Brien saw to the hiring of politically anointed candidates, and in return legislators saw to it that probation’s budget increased at a steady rate.’’

So formalized was this understanding, Ware said, that O’Brien’s agency created lists of candidates sponsored by legislators, including DeLeo, who were given special consideration for probation jobs.

Frongillo said he is working to cooperate with the federal inquiry.

“What we are doing is trying to help define the scope of what it is they’re looking for and trying to do it in an economical fashion,’’ said Frongillo, who handled large drug trafficking and money laundering cases during his decade as an assistant US attorney in Boston.

O’Brien, in his only interview with the Globe Spotlight Team earlier this year, denied that he had rigged the hiring and promotion practices to make sure the politically connected got jobs on his payroll.

“Like many organizations, recommendations concerning a particular candidate are forwarded to this office,’’ O’Brien said.

“We select the most qualified individuals to carry out the responsibilities in a professional and competent manner.’’

Petrolati, who has declined multiple requests for interviews, issued a statement earlier this year saying that he has been happy to recommend qualified candidates for state jobs.

“Public service is fundamentally about helping people,’’ he said in his statement to the Globe.

Marcella Bombardieri of the Globe Spotlight Team contributed to this report. Andrea Estes can be reached at Thomas Farragher can be reached at