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Probation union sues over hiring

US suit says jobs given to connected

By Andrea Estes
Globe Staff / July 6, 2011

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The union representing the state’s probation officers has filed a sweeping federal lawsuit, alleging that the former probation commissioner, John J. O’Brien, and his top aides broke the law by awarding promotions based on political connections, not qualifications.

The National Association of Government Employees, which represents 1,300 probation employees, wants a federal judge to rescind more than 100 Probation Department promotions made since 2003 and reopen the positions to any probation employee who wishes to apply. Union officials are also seeking unspecified money damages.

Some of these jobs have been filled for nearly a decade, but NAGE’s president, David Holway, said that removing officials from their positions may be the only way to repay victims of what an independent counsel, Paul F. Ware, Jr., has described as a rigged hiring and promotion process in place between 2003 and 2010.

“You have to have a level playing field,’’ Holway said. “If people were denied equal access to the promotion process, there has to be some sort of remedy for them. Being denied a promotion because of political interference has a debilitating effect.’’

He said more than 100 employees have already contacted the union saying they lost promotions to candidates with superior political connections. O’Brien abruptly resigned as commissioner last New Year’s Eve after Ware’s investigation found that he had presided over “pervasive fraud’’ in hiring and promoting politically con nected job candidates.

The union’s suit, filed June 22, does not cover the scores of probation workers who left the agency or retired early because they were denied opportunities for advancement and “didn’t see any future for themselves,’’ Holway said.

The 28-page suit accuses top probation officials of violating the US Constitution and the union’s labor agreement, which requires that all promotions be based on merit. The union has enlisted the help of Charles J. Ogletree, a Harvard Law professor.

The named defendants also include the current probation commissioner, Ronald Corbett, who was brought in to revamp the troubled agency, and the trial court’s chief justice for administration and finance, Robert Mulligan. The union says the men have the power to rescind what it calls tainted appointments, but have failed to do so.

In an e-mailed statement, a court spokeswoman said that the Trial Court and Probation Department want all promotions to be based on merit, but they prefer to resolve complaints about past practices without a lawsuit.

“We are concerned with the time and expense associated with defending a lawsuit, as we face major budget challenges,’’ the spokeswoman said. “We will have no further comment as this litigation proceeds.’’

Winning the case could prove difficult, according to one labor lawyer, who said the union will have to prove that successful candidates got their jobs because of political ties and that unsuccessful candidates were denied positions because they were not connected.

The union hopes that a recent Supreme Judicial Court decision giving them access to a secret “sponsors list’’ could help them prove their case. The list, kept by top probation officials for several years, indicates which elected official, judge, or other important person was backing a particular job applicant.

The union is particularly interested in whether 11 specific employees were bypassed for promotions in favor of candidates who had powerful advocates named on the sponsors list. These 11 employees filed grievances, but lost after Probation Department lawyers insisted that politics played no role in the selection of the winning applicant.

The suit accuses probation officials of defrauding the union by making false statements at sham arbitration hearings, forcing it to waste substantial funds and resources.

In a 337-page report released last November, Ware said O’Brien and three top deputies devised and ran a hiring and promotion system that steered jobs to politically connected candidates chosen by O’Brien in advance. Officials would relay the names of the preferred candidates to the probation officials doing job interviews, Ware wrote. The interviewers were then expected to make sure O’Brien’s candidates succeeded.

Probation employees who complained about the rigged process were punished, Ware found.

For example, two employees who filed grievances after being rejected for promotions were then blacklisted from other promotions, Ware found. Interviewers helping to choose an assistant chief probation officer in Barnstable District Court were told to make sure neither made the list of finalists.

State and federal criminal authorities are now investigating probation’s hiring and promotional practices during O’Brien’s tenure between 1998 and 2010.

O’Brien’s lawyer, Paul Flavin, did not return calls seeking comment. Jeffrey Denner, the lawyer for former first deputy commissioner Elizabeth Tavares, said he has not yet discussed the lawsuit with his client.

Andrea Estes can be reached at estes@globe.com.