In a current federal district court criminal case in Boston, Judge William Young, appointed under a federal patronage system, is presiding over a trial in which the office of U. S. Attorney Carmen Ortiz, who also was appointed under the federal patronage system, is prosecuting former state probation commissioner John J. O’Brien, who was appointed under a state patronage system, for engaging in, of all things, political patronage.
And to squeeze O’Brien’s activity into a federal criminal law, Ortiz’s office twisted RICO (the Racketeer Influenced and Corrupt Organization Act) into a legal pretzel.
Over the years, the political practice of patronage and even the word "patronage" itself have been subject to public scorn. But this practice continues despite such reforms as civil service, government employee ethical conduct, criminal bribery laws and public outrage. One thing that has changed is the avoiding of the use of the word to describe this political system of hiring government officials.
For example, federal judges and U.S. attorneys are selected under what is now referred to as a "custom" of "senatorial courtesy," in a 2013 Congressional Research Service Report -- "Role of the Home State Senators in the Selection of Federal Court Judges."
According to this report, senators from a president’s party have long played a primary role in the selection of candidates for federal judgeships and U. S. Attorneys.
Candidates for these positions must get so-called "blue slips" (the color of the stationary) approval from their home state senators who are members of the president’s party before their candidacies can move forward. This report notes that the current chair of the Senate Judiciary Committee Patrick Leahy (D-Vt.) will not report the approval of any such candidates from his committee unless he has the "blue slips" from both home state senators.
The report then notes the obvious, namely, the potential for abuse that is present under this "senatorial courtesy" system. It still is the same old political patronage under a different name. And senators, over the years, have used this system for their political benefit by either getting their friends and supporters nominated and appointed for these positions, or by withholding their approval of home state nominees until they receive something they want such as a political pet project in their state.
Judge Young, who was appointed under this patronage-cum "senatorial courtesy" system, reportedly instructed the jury at the outset of the trial that "political patronage is not a crime." He told them that the prosecutor must show something more than patronage. O’Brien and two of his former deputies, according to the prosecutor, hired employees, many of whom were not qualified based on merit in place of applicants who were more qualified. This is nothing new in state hiring practices based on what I witnessed to varying degrees as a past state legislator The sponsorship of a state elected politicians was one to the necessary requirements for consideration for a state position. Young also told the jury that it was not a crime to hire employees based on political sponsorship and disobeying department hiring rules to select employees based on merit. This is what O’Brien has alleged to have done.
The case against O’Brien then presents the question of what was so different about his patronage practices that made it a federal crime? I have to give the U.S. attorney’s office credit for its imagination in formulating the criminal charges, but I question the legal basis for those charges.
To add the element of something more than merely patronage resulting in people being hired without merit in violation of department hiring rules, as noted by Judge Young, and to meet the requirements of RICO, the prosecutors in my opinion have gone too far in defining and stretching that federal criminal law. They assert that the running of the state probation office is an enterprise affecting interstate commerce to establish federal jurisdiction. They allege that there was a pattern of racketeering activity in that enterprise because O’Brien wanted to increase and maintain power over his department by getting increases to his budget by currying favor with legislators by hiring their sponsored job applicants, and that in this process some false records were kept of interviews and scoring sheets for job applicants.
Additionally, the prosecutors allege, as I understand it, that by using the mail in such a "rigged" system, to inform successful and rejected job applicants, O’Brien’s engaged in racketeering by mail fraud which allegedly satisfies the need under this federal criminal law to show multiple criminal acts.
If the objective is to criminalize hiring practices such as those used by O’Brien, then it should be done by enacting explicit criminal laws and not by the a prosecutor who goes shopping through federal laws to find one she thinks she can stretch to include political patronage. In my opinion, her stretch in this case is beyond the intended purpose of RICO. What should be done consistent with our governing principle of the rule of law and not men and women, is to enact a law making it a criminal act for any state elected official to in any way sponsor an applicant for a state job, and for a state hiring officials to violate administrative hiring procedure.
Robert "Frank" Jakubowicz, a lawyer and former state representative, is a regular Eagle contributor.