Accused of rigging selection process for job applicants
By Andrea Estes and Thomas Farragher | GLOBE STAFF FEBRUARY 24, 2012
US Attorney Carmen M. Ortiz announced criminal indictments Friday against former probation commissioner John J. O’Brien and two former top lieutenants on racketeering, conspiracy, and mail fraud charges, contending that the trio ran the troubled 1,800-employee state agency like a vast criminal enterprise.
O’Brien, along with former deputies Elizabeth V. Tavares and William H. Burke III, turned themselves in to federal authorities Friday morning and spent the day in custody before a brief court appearance in Worcester, where they were told that the charges carry penalties of up to 20 years in prison and fines of $250,000 for each count.
The long-awaited indictments, the first to come from the 16-month investigation of the probation hiring scandal, contend that O’Brien, Tavares, and Burke masterminded a phony hiring system set up to deceive the public while they funneled jobs to friends, relatives, and supporters of politicians, judges, and court officials.
The grand jury did not indict any legislators who benefited from O’Brien’s hiring system, but the indictment cited 26 instances in which probation officials hired or promoted candidates supported by legislators and judges, even though they were not the most qualified. Senate President Therese Murray sponsored three of the successful candidates cited in the indictment, while House Speaker Robert A. DeLeo backed one, his godson.
"This is just one step in the ongoing investigation,” Ortiz said during a press conference at the Moakley federal courthouse Friday morning. "This is a very serious matter. We’ve just indicted three former state public officials who were supposed to be working on behalf of this Commonwealth and who were engaged in criminal activity.”
But a lawyer for O’Brien said that the charges against all three are a "travesty” and a misuse of a federal racketeering law originally passed to combat organized crime.
Ortiz did not allege that the defendants had received specific personal benefits for what she called their "racketeering conspiracy,” other than a larger budget for the agency and "to aggrandize power to themselves.” But prosecutors said the defendants had violated the racketeering law by using the department as a front for crime, fraudulent hiring.
"The allegation that the Massachusett Probation Department under these individuals amounted to a criminal enterprise involving racketeering is preposterous,” said O’Brien’s lawyer, Paul Flavin, speaking outside the federal courthouse in Worcester. "I consider it a misuse of the purpose for which the [racketeering] statute was enacted.”
Brad Bailey, the lawyer for Tavares, said that the grand jury was besmirching her "impeccable” 30-year career in public service.
"She is a person of the utmost honesty and integrity and has lived her life and met her professional responsibilities accordingly. She is very much looking forward to her day in court and to clearing her name of these unfounded charges.”
Neither Burke nor his attorney could be reached for comment.
Ortiz launched her investigation in November 2010 on the heels of a damning report by independent counsel Paul F. Ware Jr., who had been appointed by the Supreme Judicial Court in response to articles by the Globe Spotlight Team about patronage in the agency. Ware concluded that fake interviews and rigged promotions were practiced "on a grand scale,” and he suggested that O’Brien and others may have violated a variety of federal and state laws.
Friday’s indictment came six months after a Suffolk County grand jury handed up the first criminal indictments in the hiring scandal, charging that O’Brien raised campaign funds from his employees to help his wife get a job in the state treasurer’s office, then headed by Timothy P. Cahill.
The federal indictment of O’Brien, while expected, was nevertheless another stunning milepost on the road traveled by O’Brien since the 2010 end of his 12-year tenure as head of the agency where his rule was absolute and his orders to hire the politically wired were rarely questioned.
O’Brien, 55, and his codefendants were escorted from the courtroom in handcuffs after yesterday’s hearing before Judge Timothy S. Hillman, though they were released on their own recognizance shortly thereafter.
The Massachusetts Probation Department was once recognized as a national model for its programs on how best to supervise criminals in the community, but under O’Brien, a protégé of disgraced former House Speaker Thomas M. Finneran, the agency grew increasingly insular and isolated from other public safety agencies. O’Brien abruptly resigned on New Year’s Eve 2010 just before a disciplinary hearing that almost certainly would have led to his firing.
Former chief deputy Tavares, 54, was "at the heart of perpetuating the sham selection process,” according to Ware’s report. She resigned in January 2011, a day before disciplinary proceedings that probably would have cost her her job.
Burke, 68, who was in charge of hiring in Western Massachusetts, forged close ties with Representative Thomas Petrolati, the Ludlow Democrat sometimes called "the king of patronage” for his ability to place candidates in court jobs. Petrolati’s wife and Burke’s daughter both obtained probation jobs while O’Brien was commissioner. Burke retired before the Ware report was issued.
Rumors had circulated for months on Beacon Hill that perhaps a dozen people, including current and former state politicians, were likely to be indicted by the federal grand jury, a perception heightened when prosecutors brought former House speaker Salvatore F. DiMasi from federal prison in Kentucky to testify before the grand jury in Worcester.
As a result, the fact that the grand jury returned indictments against only three people, none of them elected officials, came as a surprise, even to Ware, the independent counsel.
"On the face of it, it’s somewhat surprising that the indictment targets only the most obvious defendants and strays very little, if at all, from the probation report itself,” Ware said in an interview. "On the other hand, the US attorney has been careful to examine personnel files and the process at a level of detail to enable them to be confident about the cases which are specifically called out in the indictment.”
At a press conference at the Moakley courthouse Friday, Ortiz said that the federal investigation is ongoing, but cautioned against concluding that a politician who participates in patronage hiring is breaking the law.
"There was a lot of patronage that was clearly going on, but patronage in and of itself is not illegal,” she said. "It could be very unseemly. It could be unethical. It could be criminal under some circumstances. But in and of itself, it’s not, and we really have to be fair.”
She added, "Our responsibility is to determine whether or not federal criminal laws were violated, and so, at the end of the day, that’s what we are going to be guided by, and it has to play itself out.”
Senate President Murray said she was "shocked and disappointed,” to see references to her in the indictments, the first time her name has been strongly connected to the hiring scandal. She said she does not even know two of the three people the indictment said that she sponsored.
"We do scores and scores [of referrals] every year for every possible situation: people who need a job or health care or whatever,” she said, adding that she has never personally made a call on behalf of a constituent or personally written a letter, though her signature is at the bottom of each referral.
Speaker DeLeo, whose godson, Brian Mirasolo, quickly rose to become the youngest chief probation officer in Massachusetts history with DeLeo’s support, also denied any wrongdoing and stressed that he has backed legislative reforms to make the hiring process more open and fair. Job applicants now must pass a written exam, and recommendations can be considered only at the end of the hiring review process.
"Today’s announcement clearly demonstrates the importance of the comprehensive reform of hiring practices at the Probation Department and throughout state government we passed in 2011,” the speaker said.
However, Senate minority leader Bruce Tarr, the top Republican on Beacon Hill, cautioned that the federal indictments "are stinging reminders of just how bad things had become in our state’s Probation Department.”
It remains unclear whether Ortiz will seek indictments against legislators or others who benefited from the rigged hiring system, but the 21-page indictment is loaded with examples of probation officials currying favor with the powerful by hiring their job candidates.
For example, the indictment says that Bernard Dow was promoted to assistant chief probation officer at Worcester District Court in 2005, with the support of former speaker DiMasi, even though he was not the most qualified candidate.
Dow has told the Globe that it took him 31 years to get his promotion. And it came, he said, only after he started giving DiMasi $500 a year in donations and asked for the help of the now-imprisoned former speaker.
"I knew I was not going to get that job on my qualifications alone,” Dow testified, as part of the independent counsel probe.
Likewise, the indictment said that Joseph W. Dooley was promoted to first assistant chief probation officer at Bristol County Superior Court in 2005, with the backing of Senator Marc Pacheco, even though he was not the most qualified.
Dooley, later promoted to chief probation officer, also told Ware’s investigators that Pacheco bluntly asked him to raise funds for the senator from among his probation colleagues. Pacheco, a member of the Senate Ways and Means Committee that holds sway over probation’s budget, was one of the 10 sponsors of probation candidates who showed up most frequently in probation records reviewed by the independent counsel.
Pacheco declined to comment.
In addition, the hiring of Burke’s daughter, Mindy, is highlighted in the indictments an example of "the scheme to defraud.” Mindy Burke rose from secretary to assistant program manager of the probation agency’s electronic monitoring program. "M.B. was not the most qualified candidate, but was hired in or about April 2001,” according to the indictment.
Several sponsors cited in the indictment insist they did nothing wrong. Judge Edward J. Reynolds, a retired district court judge who recommended Lisa Martin for her position, said he wrote a letter on her behalf because she had worked at the state Department of Social Services, which qualified her to be a district court probation officer.
"Based on what I understood her background to be, I wrote a letter of recommendation, and I’m not unhappy that I wrote the letter,” Reynolds said in an interview. "I would have had no ability to put 10 names in front of me and compare.”
At the Worcester hearing on Friday, O’Brien, Tavares, and Burke entered not guilty pleas to all charges. Each faces one count of racketeering conspiracy and 10 counts of mail fraud in connection with using the mail to notify candidates about the allegedly fraudulent hiring process. O’Brien and Tavares face an additional count of racketeering.
All were released, after they turned in their passports and agreed to stay in New England.
In addition, Burke was told to surrender his firearm identification card and any firearms he possesses to the police in his hometown, Hatfield.