Public betrayal in the Bay State

Introduction

Deep flaws in Massachusetts laws constructed to keep government honest have sustained a recurring parade of criminal and ethical misconduct charges involving public servants in the past five years, a study by the New England Center for Investigative Reporting shows.

Massachusetts earned a “C” grade earlier this year in a national State Integrity scorecard released by the Center for Public Integrity. Among its lowest scores were an “F” for the transparency of the state budget process and public access to information, a “D+” for legislative accountability and a “C-” for the effectiveness of the state Ethics Commission. Judicial accountability earned a “C+ in Massachusetts.

The anti-corruption weaknesses have been borne out in the litany of public scandals plaguing Massachusetts in recent years.They include federal convictions of two former House Speakers, federal criminal charges lodged against top state Probation officials and the federal bribery sentence imposed on a once-rising female legislator.

At least 250 public servants in Massachusetts have been charged with crimes or ethics violations in the past five years, the NECIR analysis found. The charges range from the federal criminal cases to helping to hire friends and relatives to drug offenses. While government officials and watchdog groups say a corrupt public servant is going to find a way to break the law no matter what, wide cracks in accountability checks in Massachusetts have made it easier for misconduct to occur.

Budget process secrecy covers politician’s corrupt tracks

The swath of secrecy permeating the way the state budget is passed was a key factor in the ability of disgraced former House Speaker Salvatore F. DiMasi to demand furtive payoffs from a major software developer for help with securing $17.5 million in state contracts. In exchange for his advocacy, DiMasi and his business associates were poised to collect hundreds of thousands of dollars in kickbacks.

The Massachusetts Legislature, and by extension the state budget process, is not subject to the state’s public records law. A $4.5 million earmark for Cognos, a Burlington, Mass., software developer, was included in an obscure 2006 budget amendment that a DiMasi stalwart, former state representative, Robert Coughlin (D-Dedham) sponsored, even though the state Education Commissioner asked that it be removed. Coughlin later acknowledged he knew nothing about the contract but “it was an honor” to serve the speaker.

DiMasi engineered a second $13 million contract for Cognos in a 2007 emergency bond bill. Both deals had to be approved by the House Ways and Means Committee, run by DiMasi’s friend and the current House Speaker Robert DeLeo. The $13 million contract was approved by the Legislature a week after it was included in an emergency bond bill.

Political observers said the lack of wide public scrutiny for state spending enables misconduct.

“You have people who have obtained mastery of the process and know how to put something in there without setting off alarm bells,” said Maurice Cunningham, an associate professor of political science at the University of Massachusetts-Boston.

When a Cognos competitor complained about the contract awards, a state and then federal investigation began. Evidence at DiMasi’s federal trial for conspiracy, fraud and extortion showed he, his friend, Beacon Hill lobbyist Richard W. McDonough and a Cognos salesman arranged to have $65,000 paid to DiMasi over two years through phony payments to a law partner. DiMasi is now serving an eight-year prison sentence.

In sentencing DiMasi, U.S. District Court Judge Mark L. Wolf noted the lengths to which DiMasi and his co-defendant McDonough went to hide the Speaker’s corruption, beginning with insisting on the budgetary allocations for Cognos.

“This was not a scheme that was developed or executed spontaneously and thoughtlessly by either defendant. The corrupt transactions were carefully structured to hide what was occurring, bribes and kickbacks in exchange for official acts by Mr. DiMasi,” Wolf wrote, noting other cases brought against state leaders for corruption. “You succumbed to what seems to be a culture of arrogance and impunity that has been shared by some, not all, of the leaders of the state Legislature in the past.”

Secrecy shields key legislative activity

The secrecy is not limited to the budget process; the entire way bills are proposed, debated and signed into law can be shielded from public scrutiny and even voting members of the Legislature.

Massachusetts lawmakers can bundle hundreds of amendments into a single amendment – following closed door discussions with no transcripts taken. After debate on the floor, there is one straight up or down vote on the final amendment. The only way to find out exactly what happened is to ask representatives directly.

Former House Speaker Thomas M. Finneran hammered out the state’s redistricting plans in secret legislative meetings, but later lied to a federal jury about the extent of his role in the planning sessions. The plans diminished the role of minority voters and Finneran was later rebuked by a federal judicial panel. Finneran was convicted in 2007 of obstruction of justice.

“The idea at the time that he had very little knowledge of it was ridiculous,” Cunningham said.

Rank and file legislators said they often don’t have time to read the bills that move quickly through closed door meetings. Special “joint caucuses” allow legislators to negotiate in private, allowing lawmakers to move controversial bills through without debate.

“We’ve short-circuited the committee hearing process, even the roll call process,” said Steve Poftak, a former state finance official and executive director of the Rappaport Institute for Greater Boston, a public policy center based at Harvard University. “It’s hard for legislators to even get a hand on legislation.”

Gaps in financial disclosure laws, oversight enforcement lead to ethics violations

Weaknesses in the state’s financial disclosure laws and the enforcement ability of state oversight agencies have also contributed to criminal cases against public servants in recent years. Former state Ethics Commission Chairman George Brown, who teaches at Boston College, said the problem lies with a political culture that thinks it’s above the law more than a lack of laws.

“You need to have political leaders who make it clear that corruption in the broad sense of the word won’t be tolerated.” Brown said. “I’m not sure Massachusetts is getting that message or has gotten it.”

One politician who didn’t get it was disgraced state Sen. Dianne Wilkerson, a Boston Democrat who was caught taking bribes, including being videotaped stuffing 10 $100 bills in her bra. She pleaded guilty to corruption charges in 2010 and is serving a 3 ½ year federal prison term.

But signs of Wilkerson’s financial improprieties were known as early as 1997, when she was convicted of federal tax evasion. In 2005, Wilkerson was fined for multiple campaign finance violations, including failing to report $26,935 in donations; another $18,000 paid from her committee went unexplained. The state Office of Campaign and Political Finance, which is supposed to serve as a check on the propriety of political spending, has no civil enforcement power. The agency can only fine candidates for late or incomplete paperwork, referring questionable activities to the state Attorney General. Wilkerson’s mounting personal debt went undetected; she accepted tens of thousands in donations from friends, some of whom turned out to be state contractors. Critics say this gave Wilkerson a feeling of invincibility.

“This lack of accountability leads to a slip shod practice and a thought that they can’t be touched,” Brown said.

Lawmakers are required to disclose fees or campaign donations that pose the appearance of a conflict of interest to the Ethics Commission or the House or Senate Clerk. Wilkerson never did and voted in 2005 to give one of the donors, a major developer, a $4.3 million state contract.

In sentencing Wilkerson for the 2008 bribery case, U.S. District Court Judge Douglas P. Woodlock expressed dismay at the boldness of Massachusetts leaders to use their office for personal gain.

“It appears that the assumption has become at large that the consequences of engaging in bribery, particularly after a first crime, are not so scary as to make people decide not to do it,” Woodlock wrote. “. . . there is a kind of ganglion of concerns that surround bribery in this state, political corruption in this state, and that Gordian Knot has not yet been cut. People go back and do it again.”

DiMasi argued the $65,000 referral fee he got for sending the Cognos business to his law partner was legal, and not a bribe. Legislators who like DiMasi also practice law cannot act on budget items or bills if they or their business partners have a financial interest. Even if he had disclosed the transaction, which DiMasi did not, the Ethics Commission does not have to disclose if a lawmaker makes an inquiry about a potential conflict.

“There is no way to determine in advance if somebody has a conflict of interest,” said David Giannotti, spokesman for the State Ethics Commission. “It’s incumbent upon the legislator. All the enforcement is after the fact.”

Public access to financial disclosure forms, known as SFI’s, is limited. Public officials are also notified every time someone requests to see the SFI’s and a requester must show identification in order to review them. The SFIs have been criticized for being too broad and non-specific. More information can be gleaned from one year’s tax return, released by both presidential candidates, than what’s asked for in Massachusetts’ SFIs.

A bill sponsored by state Representative Carolyn Dykema, a Holliston Democrat, is moving forward to remove those restrictions and make SFIs available online.

“The whole democratic process relies on people having faith that the government and elected officials are acting in their best interests,” Dykema said.

DiMasi was not required to reveal the amount of a second mortgage loaned to him by former campaign treasurer Richard Vitale. Vitale was acquitted of conspiracy and mail fraud in the same case. Neither did DiMasi have to report his soaring credit card debt that grew to nearly $275,000, five times his salary as speaker. In other states, like New Jersey, which received an “A” in the integrity index for ethics enforcement, such debt would have to be public through financial disclosures.

Only one full-time staff member in the Ethics Commission is in charge of more than 4,500 Statements of Financial Interest documents filed each year.

“One person looking at the stuff makes it extremely difficult,” said Alice Boelter, a former city and state official who teaches public administration at Regis College. Boelter reviewed Massachusetts laws for the State Integrity Index.

Dick W. Simpson, a political science professor at the University of Illinois in Chicago, said there is little political will to make the disclosures more explicit.

“They don’t want to make them more restrictive because they don’t want to release information about their private affairs,” Simpson said. “They tend to make them very broad and not very illuminating.”

Judiciary exemption from public records law protects probation misconduct

Like the Legislature, the Massachusetts judiciary is exempt from public records laws. It’s a weakness that took center stage when a massive patronage scandal in the state Porbation Department was revealed in 2010. The pay-to-play scheme remained well hidden; then-Probation Commissioner John O’Brien did not have to release recommendations for jobs or candidate’s test scores so was allegedly able to hire friends and relatives of favored legislators, who voted on his budget, with impunity. Thoughthe Probation Department falls under the state judicial branch, it provided little to no oversight.

Pam Wilmot, executive director of Common Cause Massachusetts, said the lack of an independent overseer left the probation department in “darkness.”

“It’s become one of the biggest areas of patronage dumping.” Wilmot said. “It’s a major problem.”

O’Brien has been forced out of office and faces federal corruption charges, as do a number of other probation officials. A federal grand jury is hearing testimony from witnesses, including current lawmakers that could result in further indictments.

New rules on hiring were signed into law last year. A new independent court administrator will oversee all hiring. The law creates standard hiring practices and lists minimum qualifications for jobs. The law also puts any recommendations by lawmakers into the public record.

Reforms not broad enough, critics say

The recent scandals led to ethics reforms passed in 2009 that banned all gifts to public officials, increased penalties across the board for bribery and other campaign finance violations and gave the Ethics Commission and Attorney General expanded powers when investigating and prosecuting a violator.

But critics said the reforms still lack an important tool used by federal investigators to catch corrupt public servants – power to conduct one-party surveillance or record someone without their knowledge. At least 40 states afford either federal or state Attorneys General that power.

“It’s a crucial tool because of the nature of the crimes and how much really hinges on a witness turning state’s evidence,” Wilmot said.

At its core, many political observers in and out of Massachusetts note some of the corruption in Massachusetts stems from the risks associated with the powerful one-party Democratic government that has long held a grip on power in the Bay State, as well as entrenched resistance to change by the political culture.

“Whenever there is an advance made in ethics requirements, it’s always done with a gun at the head of the legislature,” Cunningham, the U-Mass Boston professor, said. “It’s a sad old story in Massachusetts.”