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Lawmaker must face questioning on hirings

SJC backs scope of probation inquiry

Representative Thomas M. Petrolati Representative Thomas M. Petrolati
By Andrea Estes and Thomas Farragher
Globe Staff / September 17, 2010

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The state’s high court yesterday rejected a bid by state Representative Thomas M. Petrolati to avoid answering questions about his efforts to place friends, relatives, and political supporters in state probation jobs.

Just two days after hearing arguments, the Supreme Judicial Court denied Petrolati’s effort to block a subpoena from the independent counsel investigating allegedly corrupt hiring practices within the agency, ruling that his testimony is “plainly within the scope of the administrative inquiry ordered by this court.’’

Petrolati, the third-ranking member of the House of Representatives, must now appear before the independent counsel, Paul Ware, who said he will seek to schedule his testimony within three weeks. Petrolati must either answer Ware’s questions under oath or refuse by asserting his Fifth Amendment right against self-incrimination.

His lawyer, John Pucci of Northampton, had argued that Ware — ap pointed by the high court in May — does not have the authority to question employees in other branches of government and could even spark a “constitutional crisis’’ if he forced Petrolati to testify.

Pucci yesterday said he and Petrolati have not discussed whether he will answer questions. “We’re taking this one step at a time,’’ he said. There are no further avenues for appeal, he said.

Petrolati, a Ludlow Democrat, is viewed by many legislators as the “king of patronage’’ in Western Massachusetts because of his record of getting friends and supporters probation jobs during the tenure of Probation Commissioner John J. O’Brien, who is on paid administrative leave pending Ware’s inquiry.

Petrolati’s wife, a former aide, the husband of a current aide, and more than 90 of his financial backers were hired or promoted while O’Brien headed the agency. Petrolati has refused requests for interviews, but in written responses denied having undue influence over the agency and said he recommends only people who are qualified.

Petrolati was named speaker pro tempore by House Speaker Robert A. DeLeo when he was elected in January 2009. He has repeatedly declined comment on the probation controversy, citing the ongoing investigation.

Ware began his investigation following a Globe Spotlight Team report detailing widespread patronage and mismanagement within the Probation Department. Yesterday, he hailed the court’s ruling.

“I think the decision by the SJC underscores that ultimately the court itself has not only the right but the duty to supervise the administration of justice, and inherent in that right is the ability to question any witness who may have probative evidence and that includes elected officials,’’ Ware said.

“The court’s order confirms the judgment made by me as independent counsel that it is appropriate to subpoena Representative Petrolati and any other individual who may have information about this area that I am charged to investigate,’’ Ware added. “I’m encouraged that the court has supported that initiative.’’

The Globe has reported that Ware has already taken testimony from one state legislator.

Asked whether yesterday’s decision means he will subpoena other state lawmakers, Ware demurred, “I don’t think you can draw any conclusion about whether we will or will not be calling’’ other politicians.

Ware said he hopes to bring his inquiry to a conclusion within roughly one month.

He declined to say whether O’Brien has testified under oath. O’Brien’s lawyer has told the Globe that he considers Ware’s investigation the proper forum to address what he terms misconceptions in the Globe Spotlight Team report. O’Brien successfully petitioned the high court to have his lawyer present during his testimony — an allowance Ware had not been giving other witnesses.

At Tuesday’s court hearing, Pucci argued that the SJC does not have the authority to compel the powerful lawmaker to testify. If the court ordered his testimony, he argued, the judiciary would be encroaching on the legislative and executive branches of government.

In addition, he asserted that Ware has no authority to subpoena anyone other than current court and probation employees. Pucci said the court has no more power than a private company, which can demand information only from its own employees.

The justices rejected the argument, saying that even though the independent counsel is targeting the Probation Department, he may obtain information from people outside the court system.

“The independent counsel is not seeking to ‘supervise’ the conduct of a legislator, but to determine whether a particular legislator has information relevant to this inquiry, ’’ the justices wrote.

Andrea Estes can be reached at aestes@globe.com. Thomas Farragher can be reached at farragher@globe.com