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Lawmaker’s attorney challenges SJC in patronage inquest

Insists Petrolati protected by law

Prosecutor Paul F. Ware listened to testimony about state Representative Thomas M. Petrolati. Prosecutor Paul F. Ware listened to testimony about state Representative Thomas M. Petrolati. (John Tlumacki/ Globe Staff)
By Marcella Bombardieri
Globe Staff / September 15, 2010

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An attorney for state Representative Thomas M. Petrolati told the Supreme Judicial Court yesterday that it does not have the power to compel the powerful lawmaker to answer questions about his efforts to place relatives, friends, and financial backers in jobs in the state’s Probation Department.

As Paul F. Ware, the independent counsel appointed by the SJC, races to finish a sweeping inquest into patronage in the probation agency within a month, Petrolati’s lawyer argued that Ware has no authority to subpoena anyone other than current court and probation employees.

The lawyer, John P. Pucci of Northampton, told the high court that the court’s power in this case is essentially the same as a private company would have, and that it could demand information from its own workers, but no one else.

Several justices appeared skeptical of Pucci’s argument.

“So you don’t think the internal administration of justice is a higher value in terms of the public interest than an internal investigation of wrongdoing within a private company?’’ asked Justice Ralph D. Gants.

Referring to the state law that gives the SJC oversight of the judicial system, Pucci responded: “Well, I might’ve written the statute differently, you might’ve written the statute differently, but this is the statute the Legislature has provided.’’

Pucci contends that forcing Petrolati to testify would encroach on the legislative branch and could provoke a constitutional crisis. He acknowledged that the court has deposed sitting legislators in previous investigations, including a 1990 inquiry into wrongdoing by Boston Municipal Court judges.

Yesterday’s hearing was the latest salvo in an ongoing power struggle between the Legislature and the state courts. The Legislature controls the judiciary’s budget, and over the years it has reduced judges’ authority over the Probation Department while increasingly using the agency as a font of jobs for the politically connected.

Petrolati, a Ludlow Democrat and the third-ranking member of the House of Representatives, is seen by fellow Western Massachusetts legislators as the “king of patronage,’’ because of his success helping friends and supporters get jobs during the tenure of Probation Commissioner John J. O’Brien. (O’Brien is on paid administrative leave pending Ware’s inquiry.) Petrolati’s wife, Kathleen, former aide Andre Pereira, and the husband of aide Colleen Ryan work for Probation, as do more than 90 people who have given the lawmaker campaign donations — often around the time they were hired or promoted.

Petrolati has said he does not have undue influence over the probation agency and that he recommends only people he considers qualified.

Ware, in court-filed papers, said he has grounds to believe Petrolati has information about alleged misconduct by people within Probation, and that “any purported misconduct by Petrolati is tangential to that purpose.’’

Ware’s colleague at Goodwin Procter, Kevin P. Martin, argued in court yesterday that Ware and the court have clear authority to compel Petrolati’s testimony.

Pucci, however, said Ware has not shown Petrolati’s testimony is critical to the investigation. Petrolati’s lawyer said Ware can question probation staff about the same matters he would discuss with the lawmaker.

The special counsel’s office said it is crucial to hear Petrolati’s version of his interactions with probation staffers.

“It’s quite possible the other party to [a one-on-one] conversation may have pled the Fifth Amendment, may have forgotten the conversation, may have provided testimony concerning the conversation, and we need to confirm that testimony with Representative Petrolati,’’ Martin said. “I can’t imagine a situation where we decide, well, we just don’t need his testimony anymore.’’

After yesterday’s hearing, Ware said “other aspects of the investigation are proceeding apace,’’ and he expects to finish his report no later than mid-October.

Ware said he had conducted more than 30 interviews under oath and dozens of informal interviews.

He lost a skirmish when O’Brien successfully petitioned the SJC to have his attorney present during his testimony.

It is not clear when the justices will rule on Petrolati’s attempt to avoid questioning.

Asked yesterday why Petrolati would not want to be interviewed, if he has done nothing wrong, Pucci said, “He was subpoenaed as speaker pro tem. He feels he has an obligation to raise these separation-of-powers issues.

“Institutionally, these are important issues. He is not just a man on the street. He represents the legislative branch.’’

Marcella Bombardieri can be reached at bombardieri@globe.com.

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