The Civil Action Resulting from Probation Patronage Case Seems More Compelling

Wednesday, April 4, 2012

To say the least, the Ware Report of 2011 painted an unattractive picture of how people got hired and promoted in the Massachusetts Probation Department from 2003 to 2010.

An investigation led by Attorney Paul F. Ware, Jr., of Goodwin Procter, found that politically connected candidates had a definite advantage when applying for jobs, and when seeking better jobs, in the department.

His report actually said that former Probation Commissioner John J. O’Brien, recently indicted by a federal grand jury along with two of his former deputies, presided over a hiring/promoting system that amounted to “pervasive fraud.”

Fraud is defined as “deceit, trickery,” or “the intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right.” It’s a term that covers both criminal and non-criminal behavior, which leads to the question:

Did O’Brien and his colleagues break the law when they allegedly turned Probation into a patronage haven that would have turned James Michael Curley green with envy?

The U.S. Attorney for Massachusetts and a federal grand jury obviously believe they did. But a jury of their peers may decide otherwise, especially when they look at O’Brien, et al., in the courtroom and notice that none of the elected office holders who sponsored Probation job candidates have been charged in the case.

Many people feel strongly that O’Brien, et al., are not guilty of any crimes, and that all the defendants did was add a new wrinkle or two to patterns of patronage that have been the norm in Massachusetts for generations.

Ask these same folks, however, if O’Brien, et al., will be found liable in a civil action, and they whistle a different tune.

Don’t forget that the National Association of Government Employees (NAGE), which represents some 1,300 Probation employees in Massachusetts, filed a lawsuit against O’Brien and his top aides last summer, asking a federal judge to rescind more than a hundred promotions made in the department since 2003. The suit accuses the ex-Probation leaders of violating both the U.S. Constitution and the union’s labor contract by making promotions on grounds other than the qualifications and performance records of the candidates.

The parties accused here are of modest means -- and destined to be of the most humble means imaginable once they’ve paid their legal bills. So any promotion-deprived person who emerges vindicated and victorious from the NAGE lawsuit probably won’t get a penny from the defendants.

But they could get promotions, and the pay and benefits that go with those higher grades, not to mention the plaudits of their sincere-hearted peers, and the unique satisfaction that comes from having been proved right, unexpectedly, years after the fact.

If I were one of those long-aggrieved Probation employees, I’d enjoy that a lot more than seeing Jack O’Brien hauled off to jail.

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