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Probation head won’t go willingly

Dismissal process could take months

Suspended probation commissioner John J. O’Brien (above) used a hiring process that is “systemic in state culture,” his lawyer says. Suspended probation commissioner John J. O’Brien (above) used a hiring process that is “systemic in state culture,” his lawyer says. (John Tlumacki/ Globe Staff)
By Marcella Bombardieri
Globe Staff / December 14, 2010

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Nearly a month after a special counsel said he should be fired, John J. O’Brien still holds his title: commissioner of probation. And, as the new year dawns, he will still be drawing his annual $130,000 salary after more than half a year on forced leave.

While it might seem that independent counsel Paul F. Ware Jr.’s findings — that O’Brien engaged in “pervasive fraud’’ in hiring — would be grounds for termination, the state’s Trial Court must follow elaborate due process rules before it can fire any employee.

O’Brien is not going willingly. His attorney, Paul K. Flavin, said O’Brien does not deserve to lose his job, despite Ware’s findings.

Ware “used some sensationalist terms — corrupt, fraud, scheme; I don’t follow it,’’ said Flavin, who is based in Milton. “It’s a hiring process that is systemic in state culture.’’

O’Brien’s disciplinary hearing will not take place until after the holidays, Flavin said.

The suspended commissioner will be able to appeal if he is fired, so it will be weeks, if not months, before his professional fate is decided. That procedure applies to three members of O’Brien’s inner circle whom the Trial Court is also reviewing for punishment, including possible termination: First Deputy Commissioner Elizabeth V. Tavares, Deputy Commissioner Francis M. Wall, and legal counsel Christopher J. Bulger.

Officials are also expected to discipline lower-level staff complicit in the agency’s patronage machine. Ware named more than 30 current and former probation officials who participated in fraudulent hiring, gave testimony that was not credible, or refused to testify, citing their rights against self-incrimination.

Unlike private employers, who can dismiss people without explanation, the Trial Court can fire employees only for cause.

“Normally it would be a pretty high burden’’ for the state to make its case, said Kevin G. Powers, an employment and civil rights attorney. “But because the appeals are all within the Trial Court, O’Brien is going to have a problem.’’

Powers said that even if O’Brien identified grounds for a lawsuit and pressed his case all the way to the Supreme Judicial Court, “they’ve already decided they want to fire him.’’

O’Brien, however, has found success in the courts before. He sued the Trial Court after a judge briefly took him into custody in 2002 in a dispute over how often to drug-test several probationers. The commissioner initially asked for $300,000, but accepted a $20,000 settlement.

Robert A. Mulligan, chief justice for administration and management, will preside over O’Brien’s termination hearing, and acting Probation Administrator Ronald P. Corbett Jr. will lead hearings for any other probation employees, according to court officials.

Flavin called Mulligan a “thoughtful and experienced jurist’’ and said Mulligan would probably consider recusing himself as hearing officer. Asked if he thought Mulligan should do so, Flavin said “absolutely,’’ because, he said, the chief justice signed off on Probation Department hiriing.

Flavin also asserted that Mulligan had made a recommendation himself, citing a note Mulligan wrote in 2000 thanking O’Brien for hiring a friend of Mulligan’s brother.

Mulligan “made all the appointments,’’ Flavin said. “How can he stand in judgment of these people?’’

Flavin also complained that Mulligan has criticized the hiring of O’Brien’s daughter, Genevieve, by a department within probation. Flavin said Mulligan approved her hiring as a temporary worker and that the State Ethics Commission approved her hiring.

Mulligan’s spokeswoman, Joan Kenney, said Genevieve O’Brien’s connection to the commissioner was not brought to the justice’s attention when he approved the temporary appointment. Kenney said Mulligan declined to comment on the pending disciplinary matter.

Ware’s report said Mulligan tried to fight abuse in probation hiring, but was stymied by O’Brien’s dishonesty and took a narrow view of his own authority to reject O’Brien’s chosen candidates.

At each disciplinary hearing, employees will have the right to be represented by a lawyer and present a defense. The hearing officer will issue a written decision. Employees who are fired can appeal to an advisory committee made up of several judges, clerks, and a register of probate.

The advisory committee would make a final decision, which it would not have to explain.

Meanwhile, O’Brien and his deputies also face potential criminal prosecution. US Attorney Carmen M. Ortiz’s office has convened a grand jury to consider charges including fraud and extortion, and state Attorney General Martha Coakley is also investigating.

Wall’s lawyer declined to comment about the disciplinary process, while attorneys for Tavares and Bulger did not return calls.

O’Brien at first promised full cooperation with Ware’s inquiry.

Flavin said O’Brien changed his mind and cited his Fifth Amendment rights and refused to testify before Ware because the questions Ware had asked other witnesses were biased.

“I began to learn of some of the questions. . . . The tone of them, how they were phrased, it was clear that conclusions had already been reached,’’ Flavin said. “Some of the questions he asked my client were beyond the pale.’’

Flavin said it was no surprise that Ware could find a few examples of people hired over more-qualified rivals, out of hundreds of jobs filled over the years.

Ware’s report details a few specific unqualified hires. And many witnesses testified that the interview process was manipulated to favor less-qualified, but well-connected, candidates. For example, former deputy commissioner William H. Burke III testified that he would advance any favored associate probation officer candidate who was not “really, really, and I mean really bad.’’

Flavin said the state should ban elected officials and members of the judiciary from recommending people for probation jobs and use an objective test, along the lines of a civil service exam, to rank people for hiring and promotion. House Speaker Robert A. DeLeo has said he will file legislation to institute civil service rules for the agency.

Flavin said there is no evidence of “payola,’’ or “an envelope’’ of money that would make the case for the types of serious crimes that have been discussed in connection with the Probation Department scandal.

“With a half a million documents and 100 people testifying, there’s not a scintilla of promises or money,’’ Flavin said.

Ware’s report cited a patronage case in Chicago in which an appeals court found that fraudulently obtained salaries and fraudulently denied job opportunities were equivalent to money stolen from the public.

“They’re going to take his freedom away because politicians made recommendations and the recommendations had an influence on the process?’’ Flavin said skeptically. “Oh, boy, get all the jail cells ready.’’

Scott Allen of the Globe staff contributed to this report. Bombardieri can be reached at bombardieri@globe.com.