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Senators propose probation regulations

Judge would get limited controls

PENALTY QUERIED A key House leader has questioned whether the suspension of Probation Commissioner John J. O’Brien is legal. PENALTY QUERIED
A key House leader has questioned whether the suspension of Probation Commissioner John J. O’Brien is legal.
By Michael Levenson
Globe Staff / May 26, 2010

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Massachusetts Senate leaders, setting up a potential battle over hiring and spending in the state Probation Department, said they will approve a measure today that would give the state’s top administrative judge more power to regulate the much-criticized agency.

The proposal, unveiled yesterday by Cynthia Stone Creem, a Newton Democrat who cochairs the Judiciary Committee, is the first legislative response to a Globe Spotlight Team report, published Sunday, that outlined a pattern of patronage hiring and lax spending controls at the Probation Department. It currently is not subject to oversight by the governor and operates with minimal oversight by the judiciary.

The Senate plan would impose a five-year term limit on the probation commissioner and require the chief justice for administration and management to approve the commissioner’s hiring and firing decisions. It would also give the justice power over 5 percent of the Probation Department’s budget — a symbolic amount designed to provide at least some control over the department’s purse strings.

“We saw somebody with a lifetime appointment and no accountability,’’ Creem said, referring to Probation Commissioner John J. O’Brien, who was suspended Monday after the newspaper story.

“So here you have some joint accountability,’’ she said. “You have a commissioner of probation who cannot make appointments without working with the chief justice of administration. My expectation is you won’t see these kinds of things happening.’’

The plan would create a task force to study whether long-term control of the Probation Department should be returned to the judiciary, as favored by the state’s judges, or to the executive branch, as favored by Governor Deval Patrick. The task force would be chaired by Attorney General Martha Coakley and would be charged with issuing its findings by Oct. 1.

Creem said she expects the proposal to be approved today as an amendment to the Senate budget. The plan does not have the support of House leaders, who were not briefed on the Senate legislation and were not invited to Creem’s press conference, according to Representative Eugene L. O’Flaherty, House chairman of the Judiciary Committee. O’Flaherty said the House frowns on making major policy changes through budget amendments.

O’Flaherty, echoing statements made Monday by House Speaker Robert A. DeLeo, also said the House does not want to make any changes to the Probation Department until a special counsel, Paul F. Ware Jr., completes his 90-day review of the department. Ware was appointed Monday to conduct the review.

O’Flaherty, a Chelsea Democrat, also questioned whether the paid suspension of O’Brien, which was also announced Monday, is legal.

“I’m curious, as a lawyer, how, based on a news story based on allegations that political people, quote-unquote, were given jobs, warrants the removal of the commissioner,’’ he said.

“If this legislation and the various provisions are filed because of what was in the Spotlight series, I would say to you I don’t think that is a good idea,’’ he said. “I think we should wait and find out what, if any, recommendations there are, before we start rushing around and bumping into each other looking for legislative solutions. I think it’s sort of putting the cart before the horse.’’

DeLeo’s office released a statement that did not directly address the Senate legislation, but said he “is open to any discussion about ways to eliminate waste, improve efficiency, and increase transparency throughout the judiciary, including the Office of Probation.’’

Nine years ago, the Legislature took hiring authority away from the judiciary and gave it to O’Brien, who, according to the Spotlight report, packed the department with politically connected employees and insulated it from oversight of its spending.

Now, a fight is brewing over whether to reduce some of the department’s autonomy. Creem said senators are angry about the reports of patronage and “want to take immediate action.’’

But O’Flaherty said lawmakers “need to take a breath’’ and not rush ahead.

The Senate’s task force, Creem said, includes members of the legal community and the Patrick administration, but no legislators, a makeup that Creem said would guarantee its independence as it weighs the long-term future of the Probation Department.

Patrick offered measured praise for the Senate plan, but said he prefers his own bill, introduced months ago, which would place the department under his control.

“The governor believes the Senate is on the right track and appreciates the expected swift action,’’ said Patrick’s spokesman, Kyle Sullivan. “He looks forward to working with the Legislature and the attorney general to make the case that the reform proposal he filed in January . . . offers the best opportunity for real cost savings and accountability.’’

The chief justice for administration and management, Robert A. Mulligan, said he too believes that the Senate legislation does not go far enough.

In an interview, Mulligan said he supports a five-year term limit on the probation commissioner, a limit currently imposed on his office. But his office should have “full authority’’ to hire and promote probation officers, rather than merely signing off on employment decisions made by the probation commissioner, Mulligan said. He also said his office should have “full authority’’ over the Probation Department’s budget, not just power over 5 percent.

“Finally,’’ Mulligan said, “it’s essential that probation remain in the judicial branch, where it has been for 130 years, to maintain the vital relationship between the judge and probation officer, as they make important decisions about which defendants require incarceration and which defendants are appropriate for supervision within the community.’’

O’Flaherty, however, said the Legislature should retain a prominent role in overseeing the department. “The Legislature is accountable via the electoral process, and the judiciary is not, so when it comes to issues of fiscal accountability and being responsible for the people’s dollar, the Legislature is closest to the people,’’ O’Flaherty said.

Michael Levenson can be reached at mlevenson@globe.com.

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