Sounds Like a Plan: Sell T Station Naming Rights, Then Put 'Massachusetts' Itself in Play

Friday, December 27, 2013

When you ride the MBTA, as I do every day, you can’t help but notice the bad shape our transit system is in. 

The Orange Line, for example, is often brought to a halt at rush hour by a “disabled train up ahead.”   The cars on this line should have been replaced at least ten years ago.

Unfortunately, the T never has enough money.  We’re talking about a public authority that practically invented the term “deferred maintenance.”

Imagine my relief then as I read today that the MBTA will soon earn up to $20 million by selling the naming rights to some of its busiest stations: South Station, North Station, Downtown Crossing, Park Street, Back Bay, State Street, Airport, Boylston, and Yawkey.

I can fault the T only for limiting the initiative to a select group of stations.  In the name of profit, why not put every station name in play?

If there are big bucks to be made in converting a big station like Downtown Crossing to something like Starbucks Crossing, there’s short money in turning a small, quaint station like Brookline Village into something like Acme Check Cashing Village.

For every Trader Joe’s Corner that replaces a Coolidge Corner we should have a Tattoo Island replacing a Wood Island and a Wally’s Roast Beef Station replacing a Wollaston.

It will all add up fast.

If we can double the expected $20 million dollar yield from this project by untethering the names of all the T stations from the history, culture, geography and neighborhoods of Boston, I say do it.

Do we really need stations like “Symphony” and “Museum of Fine Arts” on the Green Line, or “Revere Beach” and “Bowdoin” on the Blue Line, or “Harvard” and “Quincy Adams” on the Red Line?

Yes, it’s nice to have names that pay homage to the unique features of our region and that actually help riders know where they are.   But in these days of austerity we have to ask, Are these old names worth what they’re costing us in lost ad revenue?

The T station naming rights initiative is so in tune with the times that it’s sure to be wildly successful. It will lead in short order, I predict, to a county naming rights sale.

Suffolk County is so old-fashioned, Apple County so next-gen.

And why this blind attachment to “Massachusetts,” an antiquated handle if ever there was one?

Think how much we could make by rebranding our state Wal-Mart Land, Verizon Province, or Burger Kingdom?

The possibilities are endless.

Chronicle of a Judgeship Denied: a Switched Vote, Two Defeats, and a Plea to the Supremes

Friday, December 20, 2013

The Governor’s Council has twice rejected Michael J. McCarthy’s nomination for a judgeship in the Southern Berkshire District Court in Great Barrington.

The first time was on September 26, 2012.  With one Council position vacant and one Council member abstaining, the Council voted 3-3 to confirm McCarthy.  A tie goes against a nominee.

Were it not for the absence that day of then Lieutenant Governor Tim Murray, who was on a trade-related trip to Europe, McCarthy would have been confirmed. 

The LG is normally the presiding officer at Council meetings and is allowed to vote if there’s a tie.  Murray would have voted for McCarthy because McCarthy had been nominated by Murray’s boss, Governor Deval Patrick.

Three weeks after that vote, Mary-Ellen Manning of Peabody, the Governor’s Councilor who abstained on September 26, went to the State House and recorded in an official register her wish to be counted as voting in favor of McCarthy’s nomination.

No one really knew what to do about Manning’s unusual move. 

McCarthy thought Manning’s notation in the Council register so significant that he took the judge’s oath of office in private somewhere.  I think he got some notary public or town clerk to do the job.  There was no public announcement of it.  

Having served as Pittsfield city solicitor and built a good practice as a family law attorney there, McCarthy is a fixture in western Mass legal circles, a known and respected commodity.  Among those who went on the record with the Council in favor of McCarthy’s nomination were Francis X. Spina of Pittsfield, an associate justice of the Massachusetts Supreme Judicial Court; Superior Court Judge Daniel A. Ford, and all seven members of the Massachusetts Academy of Trial Lawyers who practice in Berkshire County.

Said Pittsfield state rep Tricia Farley-Bouvier to the Berkshire Eagle newspaper: “Mike McCarthy is a very good man and an outstanding jurist, and he had gone through a comprehensive vetting and interview process before being nominated by the Governor.”

Governor Patrick, who has paid closer attention to the western part of the state than any governor in modern times, really wanted McCarthy on the bench.  So he nominated him again this past January. Four new members who’d been elected to the Council in November, 2012, had just taken their seats at that point.  McCarthy’s second nomination came up for a vote on February 13 and he lost outright by two votes, 5-3. 

Two different Councils in succession had thus found his candidacy underwhelming.

On July 18, McCarthy filed a civil lawsuit in the Massachusetts Supreme Judicial Court against Governor Patrick and Secretary of State William Galvin.  He was joined as a plaintiff in the lawsuit by Mary-Ellen Manning, who is no longer a member of the Governor’s Council, and by former Springfield Mayor Michael Albano, a member of the Governor’s Council whose district includes Berkshire County.

“I take no pleasure in this action,” Albano told the Berkshire Eagle, “but I can’t sit back and not represent my constituents in western Massachusetts.”  

The suit asks the Supreme Court to grant McCarthy the judgeship on the grounds that Manning’s vote switch was legally binding and that the governor wrongfully “deprived” him of the office by refusing to swear him in after Manning changed her mind.  Galvin was named as a defendant because the Secretary of State has the legal responsibility to issue a “judicial commission” to someone duly confirmed as a judge.

When Manning’s vote switch was first brought to his attention, Governor Patrick consulted his chief legal counsel, who did some research and informed him that only votes taken during Council meetings can be considered valid.  That’s only common sense, no?  Otherwise, everything the Council did would remain forever up in the air.

Through an attorney on the staff of the Attorney General, Patrick filed a motion to dismiss the suit.  Supreme Court Associate Justice Margot Botsford heard arguments for and against that motion on Oct. 24.  Her ruling is pending.  If she allows the suit to proceed, the entire Supreme Court could end up deciding the matter. 

District court judgeships are like rare, shining gems in the drab, unforgiving, post-recession, dog-eat-dog world that most lawyers inhabit.  They are highly-paid, secure positions: a judge practically has to be caught on camera committing a crime to be fired.  Judges in these courts are paid $159,694 a year and collect more than ample pensions when they retire.  McCarthy lost the opportunity for all that on a fluke because the Lieutenant Governor could not attend his confirmation hearing. 

That must hurt.  Bad.

I think that the Governor’s Council on a good day is two clicks away from a kangaroo court and that Mike McCarthy is qualified to be a district court judge.

Manning’s I-didn’t-vote-no-I-did routine is yet another argument for the abolition of the Council, a dysfunctional relic of the government Massachusetts had when it was a British colony. 

I wonder if McCarthy’s pain and anguish have blinded him to the fact that his quest to alter the outcome of his nomination, post facto, looks kind of desperate and sad.

That pain and that anguish do not justify throwing under the bus the gentleman who gave McCarthy two clean shots at the job of his dreams.  The cliché* applies, eh Governor? 

Out there in the Berkshires, life must be hell for a good, old-fashioned family lawyer.

*No good deed goes unpunished.

Advantage Walsh: Waiting to Decide on the Pseudo-Issue of Partners in Somerville

Friday, December 13, 2013

On Dec. 5, the old pros at Partners HealthCare System managed the news that they’re moving several thousand workers to new office buildings in Somerville with deft political hands.  No one would have expected otherwise.

Partners knew it would take a beating from Mayor Tom Menino, who had been pushing them for months to relocate the employees to a site in Roxbury.  And so it did:  on Dec. 6, Menino body-slammed the kings of our health care world on the front page of the Boston Globe.

“I’m very disappointed,” he said. “Partners has an obligation to this city, where they have acres and acres of tax-exempt property.  This could have been their opportunity to help revitalize Roxbury.  Every time they had a problem, they called me and I was there for them.  The social conscience has gone out of Partners.  This is all about their bottom line.”

Menino leaves office in less than a month; his ability to wreak vengeance on anybody is extremely limited. Partners knew it could ride out a storm stirred up by this lame duck. 

(That Partners was able to inflict this pain precisely because he’s in no position to retaliate will torment Menino no end.  Like that of all good politicians, his life has been a never-ending quest for the upper hand.)

Partners recognized other advantages, as well, in taking their best shot at a minimally painful news rollout now: it’s after the Boston mayoral election and before the new mayor takes office. 

Under no circumstances would Partners have allowed the Somerville story to become an issue in the Boston mayor’s race, when two fully loaded candidates could have outdone each other in the outrage department.   

Regarding the winner of that race, Mayor-elect Marty Walsh, Partners probably hoped he’d be so busy planning the transition and assembling his administrative team he would not have the time and energy in December to take a major bite out of their backsides.  A reasonable hope.

Also, Partners knew that, if it made the announcement on Somerville in early December, it would give Walsh a month to settle down and calmly assess the downside of going to war against the largest group of hospitals and related health care enterprises in Massachusetts.  The Partners board, for example, is a who’s who of the smartest, most successful and most influential people in Greater Boston. 

Why, hello there, Anne Finucane and Jim Manzi!

This is not to say that the Mayor of Boston has to avoid taking Partners on or that he’s bound to lose such a fight, only that the start of a new administration, when a mayor is getting his bearings and trying to establish a positive vision for the next four years, may not be an auspicious time for it. 

The Mayor of Boston has screws enough to turn on all those Partners’ thumbs, as Menino demonstrated whenever he got the urge to talk about more “community benefits” and payments in lieu of taxes (PILOT) from this and other Boston non-profits.

Partners put Menino in the rearview mirror and the ball in Walsh’s court on Dec. 5.  Now it is waiting, no doubt nervously, to see how Walsh will swing.

Shirley Leung wrote a good column on this topic today on the Business page of the Globe: “Is Somerville gain really a Boston loss?”  It seemed to indicate that Walsh is taking his sweet time in deciding what to do next.

“You don’t want to lose 4,000 jobs out of the city of Boston. I’m not happy about it,” Leung quoted Walsh.  “When I talk about regionalization, I don’t talk about it from taking one business from one city to the other.  I talk about attracting new businesses to a region.  There is a very big difference here.  I wish Partners made a different decision.”

Maybe those will be Walsh’s final words in public on the issue.  It wouldn’t be a bad way to leave it behind him.  It’s not as if there are people marching every day on city hall demanding that Partners build its new offices in Boston.  This has been kind of a manufactured crisis from the beginning.  No new jobs are involved in the move to Somerville. Partners is merely consolidating a bunch of offices in one location, 10 minutes by subway from downtown Boston.

Maybe Walsh has decided it would be good to keep Partners in suspense until well into his first year in office, or later.

There’s an advantage in his holding his fire until the day he really needs something important, say a five-figure, multi-year commitment to a new program benefiting a large Walsh voting bloc.   Then he can dispatch to the Partners board room an emissary who’ll have a psychological advantage.  (When you’re the mayor of what we like to think of as a "world-class city," the messy stuff is best left to others.)

“You know, the mayor could have killed you guys on that Somerville office thing,” the emissary might say.  “But did he do that, even when Tom Menino – Tom Menino, the most beloved mayor in the history of this city! -- was screaming for your scalps?  No. No. No. He deliberately chose not to make your lives more difficult.  Now he needs you to make life a little easier for the good people of Boston.” 

If Partners improbably declines, Walsh can always reach for the PILOT thumbscrew.

The Squirming Will Be Widespread When the Defense Goes Ballistic at Probation Trial(s)

Friday, December 6, 2013

If you were Brad Bailey, a noted defense lawyer at Denner Pellegrino, and you were representing Elizabeth Tavares in the federal courts, you’d be doing what he’s doing now: trying to put her in a position where she’s more likely to evoke sympathy from a jury.

Toward that end, Bailey filed a memo Nov. 1 in the U.S. District Court of Massachusetts supporting his motion to sever Tavares’s case from that of the other persons charged in connection with an allegedly rigged hiring system in the Probation Department.

A deputy commissioner in the department, Tavares was indicted in 2012 along with Probation Commissioner John J. O’Brien and Deputy Commissioner William H. Burke, III.  The government intends to try all three together.

The indictment said, in part:

“Between 2000 and 2010, the defendants…devised and intended to devise a scheme and artifice to defraud and to obtain money and property 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.”

Keep in mind that “and others.”

While arguing now on grounds related to the Sixth Amendment, Bailey has a strategy seemingly designed to exploit the advantages of having Tavares face the jury as a woman alone.

If she’s tried separately, prosecutors will not be able to buttress allegations of a group criminal enterprise by constantly pointing to the actual group accused of leading the enterprise.

At a stand-alone trial, it will also be easier for Bailey to imply that she lacked the power, the heft, to make a substantial contribution to any such putative scheme.  Bailey would have Tavares sitting there, all meek and mild.  Under his tutelage, she would do her best to appear small, ordinary, and lacking in guile.

Most of the jurors would come to such a trial with the notion that men have more power in organizations than woman because that’s the way it’s always been.  They would be inherently susceptible to the suggestion that Tavares could not have been a real force in Probation.

Whether he wins a separate trial for Tavares or not, Bailey will try to get as many women on the jury as possible.  Women will be more likely to see Tavares as a pawn, not a queen, in a man’s game.

Bailey’s memo of Nov. 1 argues that “A joint trial would violate her (Tavares’s) Sixth Amendment rights and prevent the jury from making a reliable judgment.”

The motion continues: “At trial, the government would introduce sworn statements made by Tavares’s co-defendant, William H. Burke, III (‘Burke’).  The government would use these statements to support its case against the defendants.  However, these statements are admissible only against the declarant (Burke), and their introduction at a joint trial would violate Tavares’s rights to confront her accusers as guaranteed by the Sixth Amendment.”

The above-cited sworn statements are found in Burke’s testimony before what is commonly referred to as the Ware Commission.  The name comes from the independent counsel, Paul F. Ware, Jr., who was appointed by the Massachusetts Supreme Judicial Court to investigate Probation after The Boston Globe published an expose on the department: “An Agency Where Patronage is Job One,” 5/23/10.  Ware is a partner at Goodwin Procter; he’s a lawyer’s lawyer, widely respected in Boston legal circles.

Here’s an excerpt from Burke’s testimony before the independent counsel, as quoted by Bailey in his Nov. 1 memo, where he argued that Burke’s Ware Commission testimony, if introduced as evidence during a joint trial, would hurt his client, Tavares, and violate her constitutional rights:

Q. Did you have conversation with Mr. O’Brien in which he personally recommended to you candidates?

A. No

Q. On no occasion?

A. On no occasion did Jack O’Brien ask me to put anybody on a list…If I thought somebody was good, I would tell Liz or Frannie and say, this guy is outstanding; this lady is outstanding.  But he has never, never.

Q. When you were given names which you understood to have come from the Commissioner, that came through principally Liz Tavares?

A. Frannie or Eddie Ryan.

Q. Ed Ryan?

A. Fran all.

Q. And Liz Tavares?

A. Liz Tavares, right.

Q. Those were the individuals who passed along names from the Commissioner to you or to Regional Administrators or to interview panels, right?

A. Correct.

Q. Did you ever have any conversation with Commissioner O’Brien with respect to his meetings with legislative leaders for funding?

A. No.

Q. You understood, didn’t you, that while it wasn’t written down, the legislature was funding Probation generously because Probation was responding to legislative requests for hiring, among other things, isn’t that right?

A. I’d say yeah.

Q. So you understood that one of the reasons Probation under the auspices of Jack O’Brien could get the funding it needed was that Jack O’Brien was being responsive to the hiring requests of legislative leaders?

A. And judges.

Bailey’s Nov. 1 memo provides a clear picture of the strategy that he -- and no doubt the lawyers for the other defendants -- will use at the trial or trials (whatever the case may ultimately be).  It will consist of an aggressive attack on the Ware Commission, and on the government for bringing charges only against the three executives in Probation, and not also, for example, against any legislators, judges or upper- echelon court officials.

The order authorizing Ware to investigate the Probation Department empowered Ware “to compel ex parte sworn testimony from witnesses and to issue a report regarding wrongdoing by Probation employees,” the memo states.  “The inquiry was the quintessential Star Chamber – the order contained no provision for Probation employees to cross examine witnesses or to respond or present contrary evidence or conclusions.”  (Ex parte actions are those taken for the benefit of one party only in a legal proceeding; here, it means testimony that could have solely helped the investigators, as opposed to, possibly, both the investigators and the investigatees.)

The memo continues:  “The order limited the investigation to Probation and judicial branch employees, exempting the judges themselves from scrutiny.  The language and timing of the press release (announcing Ware’s appointment) and order suggest that the results were pre-ordained – scapegoat agency bureaucrats, while glossing over or ignoring their judicial overseers.  It is not surprising that the interrogation of witnesses (before the commission) consisted of primarily leading and badgering questions targeted at creating grounds to terminate O’Brien and Tavares, who were still employed by Probation.”

Bailey quoted the commission transcripts at some length in his Nov. 1 memo.  Here’s an illustrative snippet, re: leading questions, from the questioning of Deputy Commissioner Burke:

Q. And so your understanding is that Commissioner O’Brien would meet with legislative leaders and would present the financial needs of Probation or desires of Probation?

A. Mm hmm.

Q. The legislature would respond, and they would respond in part because Commissioner O’Brien in turn would meet the legislature’s job needs, is that correct?

A. Ask the Commissioner.  I mean, I didn’t hire one person.

Q. I understand that, but you’ve been around a long time.

A. Yes, I have.

Q. You’ve been Deputy Commissioner a long time.

A. Yeah.

Q. You know politics; you know the real world; you know Massachusetts.

A. Yeah.

Q. The way in which it worked was one hand, you know, washed the other?

A. Washes the other.  Yeah, I know.  I know what you’re talking about.

There’s an axiom of politics often cited when a candidate who seemed so attractive and compelling at the beginning of his campaign goes down to defeat:  “The rationale for your campaign is never as strong as on the day before you announce your candidacy.”

I wonder if a variant of that will one day apply to John J. O’Brien, William H. Burke, III, and Elizabeth Tavares: “The rationale for the charges against them was never as strong as on the day before the grand jury indicted them.”