Making a Federal Case Out of Patronage in Probation Is Not as Easy as It Sounds

Many people on Beacon Hill were expecting the news to be worse than it was last week when a federal grand jury issued indictments in connection with an alleged hiring scandal in the Massachusetts Probation Department.

The indictments were limited to three former top officials in the department: John J. O’Brien, former Probation Commissioner; Elizabeth V. Tavares, First Deputy Probation Commissioner; and William H. Burke, III, a Deputy Probation Commissioner.

The U.S. Attorney for Massachusetts had been investigating the department’s hiring practices for months, and right up to the moment on March 22 when the grand jury made the indictments public, rumors swirled around the State House that some legislators would be charged.

The next day, there was a lot of talk in the media about legislators breathing a huge sigh of relief because the indictments had left the State House untouched.

I don’t know if anyone in the building was actually sighing, but if they were, I imagine they weren’t for long because avoiding an indictment is not the same as extricating yourself from this story first brought to us by the Boston Globe.

If you are a member of the legislature and had succeeded in getting your favored candidates jobs in Probation time and again, you can’t help but be concerned at the prospect of former Commissioner O’Brien and his deputies going to trial.

O’Brien and company are undoubtedly angry about the legal predicament they are in, and the legal predicament that the legislators they helped are not in. It’s the kind of anger that might lead the indicted parties to say all sorts of things now to the U.S. Attorney.

When you think about it, maybe that’s why the feds played the indictments the way they did: to get the appointed officials to tell tales about the elected officials. Politicians make bigger trophies than bureaucrats.

I have a friend who has never seen what all the fuss about patronage in Probation was about. “What did they do that was different from what politicians have always done, and what their constituents want them to do, and demand that they do, which is get jobs for people in their districts?” he asks.

This same gentleman, who once served in the Massachusetts House, predicts that O’Brien, Tavares and Burke will all be found innocent if they go to trial. “This is a weak case,” he says. “What did O’Brien and the others (allegedly) get in return for their contributions to this ‘scheme’? The feds can’t point to anything.”

After reading the entire indictment against O’Brien and the others, I have to admit my friend has a point.

“Between 2000 and 2010, the defendants…devised and intended to devise a scheme and artifice to defraud and to obtain money and property,” the indictment says, “by means of false and fraudulent pretenses and representations, in that the defendants and their co-conspirators did award employment and promotions to individuals who were solicited from and sponsored by members of the state legislature and others when those sponsored individuals were not the most qualified candidates who had applied for the employment or promotion.

“In so doing,” the indictment continues, “the defendants obtained money and property, to wit, jobs and salaries for individuals who were not the most qualified candidates, but who had the sponsorship of a member of the state legislature or some other individual of significance to members of the enterprise.”

Huh?

Doesn’t that say that the “money and property” derived from this alleged scheme consisted of the jobs and salaries given to under-qualified applicants sponsored by legislators?

If so, what did O’Brien, Tavares and Burke get?

I’m no Perry Mason, but I predict that the defense lawyers will make this a major argument to the jury: What did our clients derive from this so-called scheme?

And with the jurors pondering why only appointed officials are sitting before them at the defendants’ table, it will not be easy for the U.S. Attorney to win a conviction.