Sunday August 8, 2010

Voters don't see what goes on behind closed doors. They don't review the annual reports of their elected officials. They don't witness the preparation of spending plans.

What, then, really does happen in the office of a sheriff in Massachusetts, where in Berkshire County the position will be contested next month for the first time in 30 years?

Despite budget controls in Boston and annual assessments by the state Department of Correction, county sheriffs across Massachusetts have no direct day-to-day supervision.

Since they report to their "bosses" -- the voters -- just once every six years, does the position carry the potential for the abuse of power?

Some say yes. Some say no. Some hedge. And others won't comment.

State Rep. Daniel Bosley, D-North Adams, who is running for Berkshire County Sheriff against veteran Pittsfield Police Detective Thomas Bowler in the Sept. 14 Democratic primary, acknowledges there's always the possibility of abuse if there is no oversight.

"Clearly, any time you have a system like this, where so much responsibility is given to one individual, you always have to make sure there are checks and balances," Bosley said. "We need to be very transparent. [But] I haven't seen any abuse in our county."

The sheriff here primarily is responsible for supervising the inmates, employees and security at the Berkshire County Jail & House of Correction, and for overseeing the annual budget of the Sheriff's Office. This fiscal year that figure is $14.2 million.

Carmen C. Massimiano Jr. has been the county sheriff since 1978 and hadn't faced a challenger since 1980, but he withdrew from this year's race in January, citing health issues.

Bowler, with nearly 24 years on the Pittsfield police force but on leave from his detective's position this summer, said that although he's not aware of any abuse of power in the Berkshire County Sheriff's Office, he doesn't know if the current level of state oversight "would prevent abuse of power or excessive power."

"It would not necessarily deter abuse," Bowler said.

Gov. Deval Patrick and state Attorney General Martha Coakley have declined to speak with The Eagle about the potential for abuse. They also declined comment when asked whether a case could be made for more state scrutiny and oversight of county sheriff's offices in the wake of revelations of rampant political patronage, campaign contributions and corruption in the state Department of Probation.

Commissioner John O'Brien was suspended in May, and Patrick called it an "unaccountable and to some extent rogue agency."

Bowler cites what he sees as "sufficient, pretty strict" oversight of sheriff's departments through state codes covering policies and procedures implemented by the Department of Correction under Commissioner Harold W. Clarke.

An audit team from Clarke's office visits every sheriff's department once a year to ensure compliance.

"They check and go over all the records the facility has," said Bowler, the deputy superintendent in charge of security at the Berkshire County jail from May 2000 to December 2001. "It's pretty intense."

But according to Diane Wiffin, the Department of Correction's director of public affairs, the department doesn't have oversight of county correctional facilities.

"That is the responsibility of the respective sheriff," she said. "The DOC conducts annual audits of each county correctional facility to assess operational compliance with Commonwealth of Massachusetts regulations, ensuring operational effectiveness for safety and security," she said in an e-mail.

Bowler said that although he sees no need for additional scrutiny now, he reserves the right to change his mind if he is elected sheriff.

Statewide, an attorney at a Boston law firm said he thinks the possibility for abuse exists within sheriff's offices.

"The sheriffs have a lot of important decisions to make, and the position is ripe for abuse if you don't have the right people in the job," said the attorney, Joseph F. Savage Jr., a former prosecutor in the U.S. Attorney's Boston office and chief of the public corruption unit.

State Rep. William "Smitty" Pignatelli and Andrea Nuciforo, the Berkshire Middle District Register of Deeds, acknowledge that the sheriff's position in Massachusetts is powerful.

"I think there are sheriffs around the state who have built up empires," said Pignatelli, a Democrat from Lenox. "I wouldn't call it abuse of power, but I would call it flexing of muscle."

"There's a very substantial workforce dependent totally or partially on the sheriff," Nuciforo said. "No public official in Berkshire County has more power than the sheriff."

As the second-highest-paid elected official countywide -- $123,209 a year compared with Berkshire District Attorney David Capeless at $148,843 -- Massimiano has built an influential political and public-safety power base in his 32 years as sheriff.

When asked about the potential for abuse in the position, Massimiano responded: "I have as many police powers as any state policeman or chief of police. By statute, the sheriff has tremendous authority to appoint deputies and do things [other duties of the job]."

The Berkshire County Sheriff's Department has 275 employees, most of whom work at the $34 million county jail, which opened in 2001.

"The sheriff is the most powerful elected official in the county," said John J. Pignatelli, Smitty's father and the former 20-year county commissioner and 32-year Lenox selectman who retired in 1992. "The elimination of county government here gave the sheriff even more power. Massimiano is a strong person, a tough guy. He had the temperament for it."

After the demise of seven of the state's 14 county governments, including Berkshire, in 2000, Massimiano and the six other sheriffs became state employees, along with their staffs.

On July 1 of this year, as a result of a proposal made last year by Patrick and approved by the Legislature, the 14 county sheriffs are under the same state government umbrella, submitting their budgets and functioning as state employees.

Annual line-by-line spending plans prepared by all county sheriffs are given to the state Executive Office for Administration and Finance (EOAF) for scrutiny and potential modification, then to budget analysts for both the House and Senate before being submitted to the governor and state Legislature for final approval.

"All 14 sheriffs are independently elected, but all are now under increased oversight," said Cyndi Roy, the EOAF's communications director. "We track expenses and personnel, and since they're all Massachusetts government employees on the state payroll system, they have to comply with state regulations."

It remains to be seen how sheriff's departments will handle the new rules, but in the past there were some problems.

In 2006, an investigative team at WBZ-TV in Boston uncovered questionable spending of at least $3 million by sheriffs in Bristol, Plymouth and Middlesex counties for homeland-security projects considered beyond their purview.

And a 2010 Boston Globe investigation found that many current and former employees of Bristol County Sheriff Thomas Hodgson greatly enhanced their retirement benefits by working for the sheriff and taking advantage of loopholes in the state pension system.

State oversight of sheriff's departments "isn't great" but has improved, according to Savage, the former prosecutor in the U.S. Attorney's Office.

Savage, who prosecuted corruption cases against sheriffs in Essex and Middlesex counties during the 1990s, said he believes there's more accountability now than there's ever been.

"People elect a sheriff and expect him to be accountable," Savage said.

Asked whether more state control would be desirable, he replied: "There are always things you could do, but I'm not sure how appropriate it is to institute further supervision of elected officials. It ought to be the voters who supervise them.

"Strong state ethics regulations apply to sheriffs. If the voters don't care, they get what they deserve. We get exactly the amount of corruption that we tolerate."

Although state prisons are controlled by the Massachusetts Department of Correction, county sheriffs differ greatly in how they run their correctional facilities, according to professor Arthur Wolf, who has taught at the Western New England College of Law in Springfield since 1978.

Although state prisons are controlled by the Massachusetts Department of Correction, county sheriffs differ greatly in how they run their correctional facilities, according to professor Arthur Wolf, who has taught at the Western New England College of Law in Springfield since 1978.

For example, as reported by the Globe, half the inmates in Bristol County return to jail to face new charges.

But in Springfield, Hampden County Sheriff Michael Ashe Jr., in office for 36 years and now seeking his seventh term without opposition, has stressed rehabilitation programs that have resulted in a three-year recidivism rate of 36 percent.

Ashe credits his long-standing collaboration with Massimiano for the creation of four regional facilities in Springfield dealing with alcohol abuse, mental health issues, the needs of female prisoners, and a sheriff's academy for training.

Citing Department of Correction regulations and inspections as well as legal remedies if needed, Ashe said he thinks there is enough oversight today to avoid the abuse of power.

"If issues come up, there are no secrets inside these facilities," he said. "We have very transparent organizations. You have to be open and transparent."

The latest recidivism rate at the Berkshire County House of Correction is 26 percent. The American Accreditation Association has evaluated 3,751 adult local detention facilities nationwide, and the Berkshire County facility is only the 144th of that group to gain accreditation.

Even though the state controls all budgets for the 14 county sheriffs, the Legislature has imposed severe cuts -- such as Berkshire County's nearly 14 percent decrease in the past two years -- because of declining tax revenues statewide.

"Smitty" Pignatelli said he thinks Massimiano has been "way too conservative in spending and has stretched his dollars very far."

"When the economy goes sour, he falls far behind his peers," Pignatelli said. "I think he was too honest, and that's a compliment."

Pignatelli faults other sheriffs for padding their budgets.

"But there have been no abuses whatsoever in Berkshire County," he said of Massimiano's $14.2 million budget. "If anything, the sheriff could have advocated for even more money for programs."

"I probably should have been as aggressive in seeking funding as other jurisdictions were," Massimiano said. "I'm a very conservative spender. I believe you don't do more than what is reasonable and proper, and if you don't need it, don't take it."

The winner of the Democratic primary in September effectively will become the sheriff-elect in November since there are no Republicans in the race. If Bosley wins, he plans a "top-to-bottom review of the books just to see where everything is, where the funds are going. That's standard operating procedure."

Annual state audits of the Berkshire County Sheriff's Department have not uncovered any budget improprieties, according to Bosley.

Bowler supports a sheriff's right to allocate available funds as he sees fit.

"The sheriffs are given a budget that's allotted to different programs," he said. "I believe it should be at the sheriff's discretion as to how it's spent, as long as the sheriff's department can show it's complying with state regulations and standards."

As Massimiano enters his final five months in office, and as the race for the first new Berkshire County Sheriff since 1978 heats up, Massimiano's tenure is being looked at closely.

But District Attorney Capeless, the only other countywide elected public-safety official, said he has no issue with what he calls Massimiano's success at cultivating power and influence.

"He has instituted a large number of programs not only within the jail but outside the jail that are very positive," Capeless said. "If this gives you greater ‘influence' because you gain good will and respect, all the power to him. Those are the kinds of things you are supposed to do in office -- extend good will and do good for the community."

Clarence Fanto, a former managing editor of The Eagle, is an Eagle columnist and contributing reporter. He can be reached at cfanto@yahoo.com. Sheriff duties

The Berkshire County Sheriff is responsible for and supervises the following:

n Jail & House of Corrections security: Care and custody of inmates

n On-site physical and mental health care; social, educational, rehabilitation and job-training programs to minimize recidivism; supervision of on-site physical, mental health and education professionals.

n Staff, including Superintendent Jack Quinn, assistant superintendents, guards and other employees; 275 total

n Preparation of annual budget and plan capital expenditures

n Lobbying of state legislators and the state's U.S. representatives and senators for funding

n Preparation of grant applications

n Juvenile Resources Center

n 911 Emergency County Communications System

n CHILD program (more than 2,000 county elementary-school students enrolled in national data bank to help identify missing children)

n Child Identification Booklets (neighborhood public-safety events where deputies fingerprint, videotape and photograph children for use if children turn up missing or are abducted)

n Senior Safety Net to identify and track missing persons

n Berkshire County Triad program: safety-related programs in partnership with the district attorney's office, local police and fire departments and senior protective services

n Uniform Division: volunteer sheriff's deputies assigned to security details, parking assistance and traffic control (Tanglewood, etc.)

n Assignment of civil process-servers

n Sheriff's Underwater Search and Rescue Team

n Community Service Work Crews (inmates assigned to community facility and roadside clean-ups)

Sources: Eagle news services, Berkshire County Sheriff's Office

Sheriffs through the years

Carmen C. Massimiano Jr. is the 20th sheriff in county history:

Years Sheriff Hometown

1761-1776 Elijah Williams Stockbridge

1776-1781 Israel Dickinson-x Pittsfield

1776-1781 Israel Dickinson-x Pittsfield

1778-1781 John Fellows* Sheffield

1781-1791 Caleb Hyde Lenox

1791-1792 Thompson J. Skinner Williamstown

1792-1812 Simon Larned Pittsfield

1812-1838 Henry C. Brown** Pittsfield

1838-1842 Thomas Twining Sandisfield

1843-1848 Edward F. Ensign Sheffield

1848-1852 Twining

1852-1853 Ensign

1853-1855 George S. Willis Pittsfield

1855-1880 Graham A. Root Sheffield

1881-1887 Hiram B. Wellington Pittsfield

1887-1896 John Crosby Pittsfield

1896-1905 Charles W. Fuller** North Adams

1905-1932 John Nicholson Pittsfield

1933-1962 J. Bruce McIntyre North Adams

World War II Thomas H. Sullivan*** Pittsfield

1963-1978 John D. Courtney Jr. Williamstown

1978 (3 months) James J. Mooney*** Richmond

1978-2010 Carmen C. Massimiano Jr. Pittsfield

x-According to the Berkshire County Sheriff's Department.

* Served as ‘sheriff designate' during Revolutionary War, according to Berkshire Historical and Scientific Society.

** Died in office. *** Interim sheriff.

Sources: Eagle archives, Berkshire Athenaeum local history department, Berkshire County Sheriff's Department, Berkshire Historical and Scientific Society, local historian Bernard Drew