This Month in Corruption: Power Plant Tech Punished for Equipment Tampering

A recent Massachusetts case involving violations of the federal Clean Air Act serves as a reminder of how dependent we all are upon the honesty and diligence of those responsible for monitoring the purity of the water we drink, the quality of the air we breathe, and the wholesomeness of the  foods we eat and beverages we drink. 

We worry a lot about terrorists. Yet we barely ever give a thought to the guys testing samples at our municipal water plant or operating the pollution controls at the power plant a few towns away -- unknown persons, laboring in obscurity, who can seriously hurt us through negligence and malfeasance. 

The real daily risks we face are more familiar, more ordinary, and closer than we think.

On June 9, U.S. District Court Judge Mark G. Mastroianni sentenced Scott Paterson, age 46, of Manchester, CT, to one year of probation for tampering with environmental monitors while working as an instrument and control technician at the Berkshire Power Plant in Agawam, not far from Springfield.

The Office of Acting U.S. Attorney William D. Weinreb of Massachusetts reported that:

• From 2008 to March, 20111, Paterson, at the direction of senior managers at the plant, tampered with the plant’s Continuous Emissions Monitoring System (CEMS), which measures and records concentrations of regulated pollutants emitted at Berkshire.
• The purpose of the tampering was to delay repairs and avoid reporting to federal and state regulators that the plant was, at times, releasing certain pollutants, specifically nitrogen oxides, in excess of the plant’s Clean Air Act permit limits.
• Initially, the tampering involved lowering monitors by a constant rate – approximately .5 parts per million (ppm) – below the known value.  These constant adjustments did not trigger any alarms or warnings and were thus usually maintained in the system through approximately Mid-March of 2011.
• In the summer of 2009 and 2010, the plant underwent an independent annual audit.  Prior to the audit, Paterson’s supervisor directed him to take out the adjustments in the CEMS monitors and then to reinstate them after the audit.
• By 2010, this .5 ppm adjustment was not sufficient to allow the plant to run at full power and to comply with the facility’s Clean Air Act permit.  Rather than making necessary repairs, Paterson, again at the direction of his supervisors, lowered the CEMS readings even more to avoid (a) reporting emissions in excess of the hourly limits or (b) hitting warning levels.

In 2015, the Berkshire Power Plant was charged jointly by the U.S. Attorney’s Office and the Massachusetts Attorney General’s Office with tampering with its monitoring equipment and falsely reporting data to environmental and energy regulators.

In March, 2017, Berkshire Power Company and Power Plant Management Services, the owners and operators, respectively, of the plant, were ordered to pay $7.25 million in fines, penalties and other payments for their roles in tampering.

Legislature Poised to Open Up Medical Marijuana Licensing to For-Profits

Last week, the Massachusetts House voted 126-28 to make major revisions to Chapter 334 of the Acts of 2016.  That’s the law allowing recreational use of marijuana, which was enacted via an initiative petition on the November, 2016, statewide ballot.

The measure containing those revisions is House Bill 3773, An Act to Ensure the Public Health and Safety of Patient and Consumer Access to Medical and Adult Use of Marijuana in the Commonwealth.

On a parallel track, the Massachusetts Senate voted 30-5 to add a bunch of its own amendments to H.B. 3773. 

A six-member House-Senate conference committee is now at work on a compromise, final version of the recreational marijuana law.  Its goal is to have a reworked bill before Governor Charlie Baker by the end of this week and signed into law as soon as possible after that.

If that timetable is met, Massachusetts will begin the process of regulating the sale of marijuana for adult consumption next week, with recreational marijuana stores set to open in July, 2018.

The media covered last week’s action on recreational marijuana in the House and Senate extensively – not surprising when you consider it is truly a groundbreaking piece of legislation that will have wide ramifications in our society, economy and culture.

We heard and read a lot, for example, about the percentage of the tax to be imposed on recreational marijuana.  The House wants it to be 28%, while the Senate favors something much less onerous, 12%, the same percentage as in last November’s initiative petition.

There was, however, at least one significant aspect of this exercise in lawmaking that generally escaped notice beyond the confines of the State House: How the House and Senate have agreed on the need to reshape the five-year-old law allowing state-licensed dispensaries to sell marijuana products for medicinal use, Chapter 369 of the Acts of 2012, An Act for the Humanitarian Medical Use of Marijuana.

A significant change to Chapter 369, on which both the House and Senate agree, is to allow medical marijuana dispensaries to be for-profit businesses.  Chapter 369 called for dispensaries to be not-for-profit companies.  This made it difficult to raise funds to open dispensaries and accompanying cultivation facilities, as profit-driven investors could not hold a stake in those companies.

If the governor goes along with this change, we could see dispensaries opening everywhere they’re needed throughout the state.

During the Senate debate last week, Senator Patricia Jehlen emphasized that House Bill 3773 “will preserve and protect the medical marijuana program.”

The bill, she noted, will “protect the ability of the medical program and reduce bureaucracy” by transferring state oversight of medical marijuana to the C.C.C. (Cannabis Control Commission) "carefully over 18 months." 

The bill “institutes privacy protections for patients and helps current medical facilities to compete by allowing them to convert to a for-profit entity to allow them access to capital,” she said.

A trustworthy person I know, who has kept tab for years on all-things-marijuana, says the limitation of medical marijuana dispensary licenses to non-profits was “a major flaw” in the 2012 law, and “a defect that had become increasingly apparent.”

It is “extremely difficult,” he asserts, for the entities with dispensary licenses or applying for those licenses “to raise funds or borrow money from investors when the operations they’re investing in have to operate as non-profits.”

The Commonwealth, as my friend rightly puts it, imposes “a regulatory scheme” on marijuana use solely to protect “the health, welfare and safety of Massachusetts residents.”

He asks, “What does being a non-profit or a for-profit have to do with this extremely important governmental obligation and objective?” 

Answering, he says: “Nothing!  It is more in the interest of the Commonwealth to ensure that we have well-capitalized operations dispensing marijuana for either medicinal or recreational use. Dependable, long-term financing is directly connected to managerial expertise, sound management practices, operational efficiency, and customer satisfaction.”

My friend adds, “I’m glad the legislature now agrees with me on this.”

NOTE: Members of the conference committee on House Bill 3773 are, from the House: Majority Leader Ron Mariano of Quincy, Mark Cusack of Braintree and Hannah Kane of Shrewsbury; and, from the  Senate: Jehlen of Somerville, William Brownsberger of Belmont and Richard Ross of Wrentham. Rep. Kane and Senator Ross are Republicans; all other conferees are Democrats.  Rep. Cusack and Senator Jehlen also serve as co-chairs of the special legislative committee on marijuana policy.

 

Bikers Who Love that 'Wind-in-My-Hair Feeling' Still Hoping for Legislative Relief

When I was 18 and a freshman at Northeastern, my sister-in-law, Sue, was a recent graduate of the Mt. Auburn Hospital school of nursing (Cambridge) and working as an operating room nurse at that hospital. 

One day she asked me to promise I would never ride a motorcycle.  I asked why.

“Because,” she said, “I’ve already seen too many people in the O.R. who were permanently damaged in motorcycle crashes or did not survive those crashes.  Some of them weren’t much older than you.”

She added, “Do you know what some people call motorcycles?”  I did not know.

“Donorcycles,” she said.  “They make organ donors.”

A recent article in STAT, an online product of Boston Globe Media, brought me back to that conversation with Sue. Headlined, “Pro-helmet activists are notching wins against motorcyclists shouting ‘freedom,’ ” it said:

“Pro-helmet activists have launched aggressive efforts in state legislatures across the nation to fend off motorcyclists demanding the right to ride bareheaded.

“For two decades, the riders – and their rallying cry of freedom – have often had the upper hand in these battles.  Now, though, the public health advocates are gaining traction as more and more evidence emerges that mandating helmet use saves lives.”

Around 4,500 motorcyclists are killed every year in the U.S., STAT reported.

STAT cited an academic research paper recently submitted for peer review that posited a 20 percent increase in the supply of donated organs in jurisdictions where motorcycle helmet laws had been repealed.  The paper is titled, “Allocating Scarce Organs: How a Change in Supply Affects Transplant Waiting Lists.”  Here’s an excerpt:

“…we hypothesize that the repeal of a universal helmet law, which requires all motorcyclists to wear helmets, increases the number of helmetless motorcycle riders. [Blogger’s note: Duh?]  This in turn increases the probability of brain death – the principal criteria for becoming a deceased organ donor in most cases.”

In each of the two previous legislative sessions, 2013-14 and 2015-16, at least one bill that would have weakened the Massachusetts statute requiring universal helmet use by motorcyclists has been introduced in the legislature.

This session, there’s House Bill 1862, An Act Relative to Motorcycle Helmet Choice, and Senate Bill 1932, An Act Relative to Standards for Protective Headgear for Operators or Passengers on Motorcycles.

H.1862 would change the existing law to mandate that only persons under 18 who are driving or riding on a motorcycle wear a helmet, while S.1932 would eliminate the section of a state law (Chapter 90, Section 7) requiring everyone on a motorcycle to wear a helmet.

In previous sessions, all anti-helmet bills died in committee.  There’s no reason to believe H.1862 and S.1932 will do any better this session.

On Thursday, May 18, a convoy of motorcyclists arrived on Beacon Hill to demonstrate support for S.1932.   According to the State House News Service, Rick Gleason, legislative director of the Massachusetts Motorcycle Association, said that day that one reason bikers want to be able to ride helmet-free is to experience the feel of the wind in their hair.

I wrote a post, back in April of 2014, on an earlier version of a helmet-free bill, one of those that later died in committee.  What I wrote then I write now:  I would endorse the enactment of a helmet-free law for motorcyclists if it included a section stipulating that anyone on a motorcycle not wearing a helmet who suffers a head and/or spinal injury leading to permanent disability agrees to forego permanently any public assistance, as through Medicaid or Medicare. 

If you don’t want the government meddling in your open-road experience and ordering you to protect your own brain in the most effective way possible, you can’t expect the government, i.e., taxpayers, to pay for the long-term care you may need after you’ve been badly hurt in a motorcycle crash.

 

 

Complainants Mostly Strike Out at Commission on Judicial Conduct

Except for one judge who made a racially insensitive comment to a colleague and was forced to resign (see previous post), Massachusetts judges, in the judgment of their watchdogs, pretty much behaved themselves in 2016.

That’s an obvious take-away from the recently issued 2016 annual report of the state’s Commission on Judicial Conduct, which has been keeping tabs on judges for nearly 40 years.  The unpaid, nine-member commission has a threefold mission: to enforce the standards set forth in detail in a written code of conduct; to promote public confidence in the judicial branch of government; and, to preserve the integrity of the judicial process

In 2016, the commission received a total of 252 complaints; of that number, 62 were “docketed for investigation or preliminary inquiry.”

Overall in 2016, the commission officially looked into 75 complaints and disposed of 61 of them.  And 59 of the 61 disposed cases were dismissed with a finding of no misconduct.  Judges had a success rating of nearly 97%!

In four of the 59 no-misconduct dismissals, however, the commission “expressed concern to the judge regarding future conduct.” If I understand, this meant that each of the four had messed up, but not so badly that they crossed the line to misconduct land.  The commission basically warned them and said we’ll be watching you.

The remaining two among the 61 disposed cases were ones the commission had subjected to “Informal Adjustment or Agreed Disposition,” had been monitoring, and had decided to close. 

Here’s the excerpt from the report explaining what that means:

“An Agreed Disposition may take the form of an Informal Adjustment in which the Commission informs or admonishes the judge that certain conduct is or may be cause for discipline.  This form of disposition requires agreement by the judge to the terms of Informal Adjustment.  In most cases, this type of disposition has a valuable, favorable effect on a judge’s conduct.  [Blogger comment: As do near-death experiences.]

“The terms for such a disposition usually include a period of monitoring by the Commission and conditions imposed on the judge that are designed to prevent a repetition of the misconduct.  The conditions may include counseling, education, assignment of a mentor judge, monitoring by the Commission for a specified period of time, voluntary retirement, or other appropriate conditions.”

Of the 252 total complaints against judges in 2016, the most frequent complaint was that a judge had denied someone a full opportunity to be heard.  That was alleged in 42 instances.  The most frequent complaints after that were inappropriate demeanor (39), bias or prejudice (35), and disagreement with decisions and rulings (24).

The most complaints, 30, were filed against judges in the Probate and Family Court, not surprising when you consider that’s where people fight relentlessly over divorces, properties and wills.  The second highest number of complaints, 17, was inspired by district court judges – not really high, considering there are more district court judges, 158, than any other kind. 

The second largest contingent of judges is found in our superior courts, where there are 82.  And, all told, we have 411 judges serving in nine separate court divisions, headed by the seven justices of the supreme judicial court.

In his introduction to the 2016 report, Howard V. Neff, III, Executive Director of the Commission on Judicial Conduct, said, “Many complaints are filed with the Commission by parties who are disappointed with how their cases came out and believe the judge was not ‘fair’ or that his or decision was wrong.”

Neff continued, “Hardly a judge in Massachusetts escapes such claims over the course of his or her career on the bench, and the Commission’s examination of complaints regarding a judge’s decision is limited to allegations that a judge clearly violated the Code, or made a legal decision in ‘bad faith’ or based on a corrupt motive.  If a party alleges that a judge has misinterpreted the law or evidence, the proper forum for a remedy includes the appellate court but does not include the Commission.”

 

FOOTNOTE:  You may find the annual reports of the Commission on Judicial Conduct at www.mass.gov/cjc, and the Code of Judicial Conduct at http://www.mass.gov/courts/case-legal-res/rules-of-court/sjc/sjc309.html

 

 

 

 

 

 

 

Official Report Leaves One Eager to Know More about 'Racially Insensitive' Judge

There’s one intriguing item, and one only, in the latest annual report of the Massachusetts Commission on Judicial Conduct, which fills some 90 pages of text.  (I read these things so you don’t have to.)

It concerns a judge who made “insensitive racial comments” to another judge.  The second judge filed a complaint with the commission, after which the first judge retired, citing “family health reasons.”

Here’s the item, excerpted in its entirety from the report:

“A judge was alleged to have made insensitive racial comments to another judge while in the judges’ lobby of the court in which he served, in violation of Rules 1.2, 2.2, 2.3(A), 2.3(B), and 2.8(B) of the Code of Judicial Conduct.  Because of this complaint and for family health reasons, the judge retired as a judge and agreed not to seek appointment as a recall justice.” 

Editor’s Note: Above-cited rules may be found at bottom of this post.

The names of both the offending and offended judge are omitted from the report.  Also missing is the name, category and location of the court where the conversation occurred and the races and genders of the two judges.

One’s imagination naturally rushes in to fill the vacuum. 

Your guess is as good as mine as to how far over the line the offending judge went.  To use a word that lawyers love, how “egregious” was the judge’s racially insensitive behavior?  Off the top of my head, I’d say quite.  “Family health reasons,” in the public realm, is akin to patriotism: the last refuge of scoundrels.

It would seem from reading its annual reports, which may be found at www.mass.gov/cjc, that the Commission on Judicial Conduct has pondered the concept of public information the way Medieval scholars did original sin and has come to the firm conclusion that extreme caution and reluctance are almost always called for.

Under the heading of Confidentiality in its latest report, the commission states, “The statute and the rules that govern the Commission on Judicial Conduct require that the complaint and all Commission proceedings remain confidential, unless and until the Commission files Formal Charges with the Supreme Judicial Court. (There are certain limited exceptions to this requirement.)  This strict confidentiality includes all communications made to and by the Commission or its staff; it protects complainants, witnesses and judges.” 

Editor’s Notes: 1. Commission actually capitalizes the “F” and “C” in Formal Charges, apparently to distinguish Formal Charges, i.e., serious shit, from formal charges, i.e., less serious but still problematical. 2. Question: Do you think anyone complaining about a judge perceives the commission's confidentiality policy as something that exists primarily to protect them?

The Supreme Judicial Court is the forum where Formal Charges against judges are adjudicated.  If one of these cases gets to the SJC, the proceedings "are nearly always public," the commission says.  That means a judicial misconduct case has to have substance before the public may learn anything about the judge and how he has come to grief.

Contrast that situation to what would happen to you if you became ensnared in a mistaken identity case where the police arrested you and charged you with, say, rape, armed robbery, or assault and battery on an elderly person.  Do you think there's any chance your name, age and address would not quickly appear in your local newspaper?

Or consider what would happen if you were named in a civil lawsuit by a mentally imbalanced neighbor or ex-friend who was desperate for money.  That person could state in court-filed documents all kinds of outrageously false things about you that would immediately become a matter of public record, a record upon which your local newspaper could feast at will.

Howard V. Neff, III, the commission’s executive director, in the introduction to the 2016 annual report (published April 28) relates that “One understandable frustration sometimes expressed about the Commission is that the bulk of the Commission’s work and decision-making is behind closed doors and is never made known to the public.”  Imagine.

“Some would have everything ‘out in the open,’ ” Neff continued, “but for very good reasons, the law does not go that far.”

Although the commission has “limited authority” to make information public, Neff explained, “the experienced membership of the Commission must carefully weigh whether, given the facts and circumstances of a particular complaint, public disclosure would serve or undermine the Commission’s mission to preserve the integrity of the judicial process and promote public confidence in the judiciary.”

We simply have to trust the judgment of Mr. Neff…and the commissioners to whom he reported during the period covered by the 2016 annual report:

Julie J. Bernard, John J. Carroll, Jr., John D. Casey, Quinton B. Dale, Susan M. Finegan, Kathleen M. O’Donnell, Jacqueline A. O’Neill, Edward P. Ryan, Robert N. Tochka and Felicia P. Wiltz.

FOOTNOTES, re: Pertinent Rules, MA Code of Judicial Conduct

Rule 1.2  A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 2.2  A judge shall uphold the law, and shall perform all duties of judicial office fairly and impartially.

Rule 2.3(A)  A judge shall perform the duties of judicial  office, including administrative duties, without bias, prejudice, or harassment.

Rule 2.3(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice or engage in harassment, including bias, prejudice, or harassment based upon a person’s status or condition.  A judge also shall not permit court personnel or others subject to the judge’s direction and control to engage in such prohibited behavior.

Rule 2.8(B)  A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court personnel, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court personnel, and others subject to the judge’s direction and control.