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SJC’s help sought in probation review

Court asked to force Petrolati to testify

By Scott Allen
Globe Staff / September 4, 2010

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The independent counsel investigating alleged rigged hiring and promotion practices at the Probation Department urged the state’s highest court yesterday to force a top legislative leader to answer questions under oath about his efforts to obtain state jobs for his family, friends, and supporters.

Paul F. Ware Jr. said that wrongdoing by state Representative Thomas M. Petrolati is not the target of his investigation, but that Petrolati, the third-ranking leader in the House of Representatives, may have vital information on how probation officials made jobs available to politicians and their supporters.

Petrolati’s wife, his former aide, the husband of his current aide, and more than 90 of his financial supporters received probation jobs or promotions during the tenure of Probation Commissioner John J. O’Brien, who was suspended from his job in May after the Globe Spotlight Team detailed the agency’s questionable hiring practices.

Petrolati, a Ludlow Democrat, has asked the Supreme Judicial Court to excuse him from testifying, arguing that Ware has no authority to investigate the Legislature. Petrolati’s attorney argued last week that Ware, who was appointed by the SJC, could provoke a “constitutional crisis’’ if he tries to force a state legislator to answer questions under oath.

“Petrolati’s argument would dramatically and irrationally curtail the supervisory authority of the court [and] make it nearly impossible to gain evidence from non-employees most likely to have information concerning misconduct within the judiciary branch,’’ wrote Ware in documents asking the state’s highest court to uphold his Aug. 12 subpoena of Petrolati.

Ware wrote that he has already interviewed one state legislator informally. A source familiar with Ware’s investigation says he has subpoenaed two former speakers of the House to appear before him, and only Petrolati has attempted to avoid testifying so far.

The legal standoff comes as Ware attempts to complete his investigation into the 2,000-plus employee department, which the SJC requested by Aug. 23 or “as soon as possible’’ thereafter. But Ware has set no date for the sprawling review, which has already involved 29 subpoenaed witnesses and dozens more who agreed to be interviewed voluntarily.

Ware and Petrolati’s attorney, John P. Pucci of Northampton, have told the court they would be available to argue whether Petrolati should be compelled to testify on Sept. 14. That means Ware’s report probably will not be ready until after that date.

Pucci has said that Petrolati is not concerned that he may face prosecution, but he is fearful that Ware’s investigation is violating the separation of powers between the courts and the Legislature. In addition, he said the state constitution protects legislators from legal punishment for the work that they do in their official capacity as legislators.

But Ware told the high court that he issued a subpoena to Petrolati personally, and not as a state legislator. Although Ware conceded that many legislators’ activities, such as debating and passing laws, are protected from prosecution under the constitution, lobbying to get jobs for relatives and supporters is not.

“There is no indication, and Petrolati makes no argument, that he was required by law or legislative rule to recommend individuals for hiring and promotion within the Probation Department,’’ Ware wrote. He added that state law explicitly allows court-appointed investigators to interview witnesses who are not court employees if that contributes to “the furtherance of justice.’’

The fight over Petrolati’s testimony is part of a larger battle between the Legislature and the courts for control of the state’s courthouses. The Legislature sets the court system’s budget and, in recent years, legislators have used that budgetary power to impose their will, especially in probation.

Thomas M. Finneran, a former House speaker, led a successful legislative effort in 2001 to give O’Brien extensive control over probation hiring and promotion. The Globe has reported that the Probation Department employs at least 250 friends, relatives, or supporters of politicians or court officials, and that its budget has grown several times faster than other court departments.

Petrolati, a top lieutenant to House Speaker Robert A. DeLeo, has enormous influence over the courts in Western Massachusetts, helping to place his backers in probation, court security, and other courthouse offices. It’s unclear at what point advocating for patronage jobs for supporters violates state law, but the decision will not fall to Ware.

The SJC asked him to analyze the problems within the agency and make recommendations. Ware said that allegations of law-breaking probably would be referred to other law enforcement agencies, such as the state attorney general’s office, for review.

Yesterday, DeLeo declined to get involved in the controversy, saying through a spokesman: “Due to a currently pending inquiry, Speaker DeLeo will have no comment.’’

If Petrolati doesn’t testify, Ware warned that it could allow other current and former legislators to avoid testimony, undercutting his ability to learn the truth about hiring practices since O’Brien became commissioner in 1998.

A person familiar with Ware’s investigation said he has found substantial proof that O’Brien routinely intervened in hiring and promotion decisions, sending lists of his preferred candidates to his lieutenants. The person said Finneran and Salvatore F. DiMasi, another former House speaker, have been subpoenaed.

Neither Petrolati’s attorney, Pucci, nor Ware could be reached for comment yesterday.

The Spotlight Team would like to hear from readers with tips about the state’s Probation Department. The telephone number is 617-929-3208. Confidential messages can also be left at 617-929-7483. The e-mail address is spotlight@globe.com.