Clerk-magistrates, with lifetime tenure and no mandatory retirement age, rule the roost in Massachusetts courthouses.
April 12, 2011
Ronald Arruda is the clerk-magistrate of the Bristol Juvenile Court, which is a little like saying he is the king of his court.
He was appointed to the job by former Gov. Edward King in 1982 and, while six governors have come and gone since then, Arruda hasn’t budged. The 66-year-old clerk-magistrate can keep earning his $110,000-a-year salary as long as he wants because the job is the only one in state government that comes with lifetime job security and no mandatory retirement age. Some of his fellow clerks work into their 80s; some even into their 90s.
Arruda’s 20-person kingdom may be small, but he has practically absolute control over it. Arruda, who has six assistants, has used that power to hire into assistant clerk positions Angelo Ligotti, the son of Hingham District Court clerk-magistrate Joseph Ligotti, and Susan Correia, the daughter of former House majority leader and Fall River mayor Robert Correia. He also hired Mark Tobin, the son of longtime Quincy District Court clerk-magistrate Arthur Tobin, who has since transferred to Norfolk Juvenile Court in his hometown of Quincy.
Arruda says it’s “just a coincidence” that he hired relatives of fellow clerks and politicians. A former probation officer himself, Arruda says there is no similarity between the situation at his office and the widespread patronage hiring at the Probation Department that has spawned numerous task forces and law enforcement investigations. “There is no problem here,” he says. “We don’t have that situation like they do in Probation.”
Yet there are remarkable similarities between the oversight of Probation and the clerk-magistrate offices across the state. At Probation, the Legislature in 2001 gave the commissioner exclusive authority to hire, fire, assign, and discipline within the Probation Department, which employs 2,000 people. Less well known is the fact that the Legislature at the same time took away from judges the power to hire assistant clerks at the court and gave that authority to the 82 clerk-magistrates. The clerk-magistrates now have the power to convey lifetime job security on their 400 assistant clerks. They also oversee thousands of other clerical staff.
“It doesn’t make any sense whatsoever,” says Linda Carlisle, a former member of the Court Management Advisory Board, which advises judges on the best way to operate the court system. “There’s virtually no way whatsoever to get them out of the office…They have, pretty much, little fiefdoms.”
The keys to these kingdoms tend to go to politically connected people. Despite an increase in the judicial powers given to clerks, there is no requirement that a clerk-magistrate or the assistants have a law degree—or any college degree, for that matter.
There are 72 clerk-magistrates across Massachusetts who have been appointed by governors and another 10 acting clerks who have been appointed on a temporary basis by each court division’s chief justice. Of the 72 gubernatorial appointments, 25 percent have political ties to the Legislature or the executive branch. At least six are themselves former representatives or senators, three are related to current or former reps or senators, six are former legislative aides, and three are former administration officials.
Arthur Tobin, the 81-year-old clerk-magistrate at Quincy District Court and a former mayor of Quincy, city councilor, and state senator, says the calls to him from lawmakers for courthouse jobs have slowed, mostly because of a court hiring freeze that began in 2008. But he says he has no doubt that once the money begins flowing again, the phone will start ringing.
“People who serve in the public office respond to their constituency,” Tobin says unapologetically. “The legislators feel it’s part of their job…It goes on in private industry, too.”
Tobin admits “there might be a couple people” in his own clerk’s office who got jobs through his intervention when he was in the Legislature more than three decades ago, maybe a few others who have since retired. Tobin will not say if he influenced the hiring decision of his son, Mark, or his transfer from Bristol to Quincy. But he recalls a conversation with former Patriot Ledger publisher Prescott Low about his ascension to the top position at the paper.
“I said to him, ‘Do you think you’d be the publisher if your father didn’t own the paper?’” Tobin says. “It’s part of life. It’s the same things in unions, where people get jobs for brothers or nephews or cousins. I never did it for a stranger.”
Never want to leave
Clerk-magistrates are like Energizer bunnies. They keep going and going and going, even if perhaps not quite as vigorously. It’s not unheard of for clerk-magistrates and their assistants to serve well into their 80s and beyond. The record is probably held by the late John E. Flaherty, the legendary South Boston District Court clerk-magistrate, who was coming up on 60 years in office when he died at the age of 94 in 2005.
The oldest current clerk is 82-year-old Thomas Noonan, the Worcester District Court clerk-magistrate, who was appointed by Gov. Michael Dukakis in his first term. The longest-serving clerk is Henry H. Shultz, who was just 31 years old when Gov. Francis Sargent appointed him clerk-magistrate of Newton District Court. He’s been in that job 40 years.
Records indicate 10 of the appointed clerks are more than 70 years old, the mandatory retirement age for judges. At least six clerks have occupied their positions for 30 years or more and were in their 30s when they were appointed.
In addition to administrative duties, clerk-magistrates can issue search warrants and arrest warrants, set bail for criminal defendants, handle arraignments for misdemeanors, rule on uncontested motions, and hold hearings for moving violations and small claims. They are the local courts’ traffic cops, working behind the scenes to ensure an orderly flow of cases.
Unlike judges, whose positions are mandated by the state constitution, clerk-magistrates are a statutory creation of the Legislature. In Massachusetts, there are elected clerks in the county Superior Courts and appointed clerks in the district, housing and juvenile courts, as well as an appointed land recorder. The duties and responsibilities are fairly equal, as is the pay, but over the years the Legislature has expanded the powers of the clerks and shielded them from oversight by the judiciary—and nearly everyone else.
While the Trial Court’s Chief Justice for Administration and Management, known as the CJAM, is the titular head of clerks, in reality, they are their own bosses. The law states that the powers of the CJAM, the chief justice of the district court, and the first justice of each district court “shall not include the authority or power to exercise, supersede, limit, prevent the exercise of or otherwise affect any of the powers, duties and responsibilities of the clerks or registers of probate in any general or special law, including laws authorizing or governing the selection and appointment of personnel.”
Many clerks are attorneys, but it is not a requirement. In fact, judges grumble that there are no background requirements at all for clerks even though they deal with the law on a daily basis, including issuing rulings in small claims cases valued as high as $7,000. A couple years ago a “mini-law school” was organized for the clerks to brief them on legal issues they needed for their jobs.
Forty of the 72 appointed clerk-magistrates have law degrees, while 27 have a bachelor’s or master’s degree in non-legal disciplines as their highest level of educational attainment. Five of the current clerk-magistrates have no four-year degree at all.
Of the 32 clerks that had no law degrees when they were nominated, 21—or nearly 66 percent—either had lawmakers testify on their behalf at their confirmation hearing or write letters of recommendation. In contrast, of the 40 who were lawyers, only 17, or about 42 percent, had lawmakers stand up for them, and that included seven nominees who were themselves either former legislators or aides.
The job of clerk-magistrate comes with some attractive perks. For those who started as clerks before 1987, the six-figure salary comes with 30 days of vacation and 30 sick days per year, which can accumulate up to 180 days and is paid out of retirement. Those who started after 1987 get 20 days of vacation to start, increasing to 30 days after nine years. They also receive 15 days of sick time, and unused sick days can be carried over year to year without limit. Court spokeswoman Joan Kenney said each clerk’s office maintains their own attendance and payroll records.
Clerks can also make money on the side by setting bail for defendants arrested after court hours. The bail fee is $40 per case, which nets the clerks as a group about $2.5 million a year.
A number of current and former elected officials have had family members on the payroll, some of whom started as assistants and rose to clerk-magistrate. The most infamous was John “Jackie” Bulger, brother of former Senate president William Bulger. Jackie Bulger retired as clerk-magistrate of the Suffolk Juvenile Court, but was stripped of his pension for lying about contact with his fugitive brother, Whitey Bulger.
Brian Kearney, husband of former state representative Marianne Lewis, is clerk-magistrate in Natick District Court. Margaret Albertson, daughter of former state representative and Boston Municipal Court Judge Michael Flaherty, is clerk-magistrate of the South Boston Court.
Clerks also hire their assistants, many of whom are top-notch administrators. But the clerk and assistant clerk ranks also include people with strong political connections. Stephen Leduc, who represented Marlborough in the Legislature, is now an assistant clerk in Marlborough District Court. Raymond J. Salmon Jr., whose namesake was a clerk-magistrate in Clinton, is First Assistant Clerk in Leominster District Court. Robert Tomasone, clerk-magistrate in Somerville District Court, is the brother of retired Suffolk County assistant clerk Anthony Tomasone.
Former House majority leader and Fall River mayor Robert Correia, who has a daughter working as an assistant in the Bristol Juvenile Court, also has a daughter-in-law working as an assistant clerk in the Southeast Housing Court in Fall River. Two of the current acting clerks, who are typically drawn from the assistant ranks, also have familiar names. Jody Menard-Parece is the acting clerk in Taunton District Court. She is the daughter of former state senator Joan Menard of Fall River, who is now an administrator at Bristol Community College. Charles Ardito II, the acting clerk of Orleans District Court, is the son of a retired judge.
There is nothing illegal about any of this, nor is it a violation of rules and procedures. Once appointed, a clerk-magistrate has total control over his or her assistants according to statute. The chief justice has 21 days after being notified to veto an appointment and, if no action is taken, the hiring is permanent.
Since assistant clerks have no mandatory retirement age, newly appointed clerk-magistrates often have to wait a long time before hiring an assistant. In Boston Municipal Court, for instance, Clerk-Magistrate Daniel J. Hogan says the average length of service for his assistants in the criminal division is about 28 years.
“I inherited all of his people, some of whom are extraordinary employees, some of whom are not extraordinary employees,” Hogan says of the staff hired by his predecessor. “I had assistant clerks that had been here 50 years.”
One of the assistants was Rosemary T. Carr, whom Hogan knew well. While serving as an assistant clerk and attending law school after his parents retired and moved to Florida, Hogan and another sister lived in the three-family South Boston home of Carr and her husband. Carr is now Hogan’s first assistant, earning $92,000 a year. “The Carrs took us in and we’ll be forever grateful,” Hogan says.
Getting rid of them is impossible
Once someone is named a clerk or assistant clerk, it’s nearly impossible to remove them from the post. The last—and only—time it happened was in 1992.
A court advisory report last year described the process for removing a clerk as onerous and likely only if the individual had been convicted of a crime or official malfeasance. Any clerk removed for cause must have his or her case heard by an advisory committee made up of judges and clerks and also be given a hearing before the Committee on Professional Responsibility for Clerks of the Court, which in turn must decide whether or not to refer the matter to the Supreme Judicial Court for action.
“The process is rarely tested and these positions (as noted by the Monan Report) are tantamount to a system of lifetime tenure,” according to a report issued last year by the Court Management Advisory Board. The Monan Report refers to a study issued in 2003 by a group headed by Rev. J. Donald Monan, the former president of Boston College.
According to records at the committee on professional responsibility, only six appointed clerks-magistrates or assistants have been the formal targets of removal over the years, with no action against one, three resigning or retiring before the hearings were concluded, one being reassigned, and only one being removed for cause.
In the fall of 2000, longtime Framingham District Court Clerk-Magistrate Anthony S. Colonna Sr., then 85 and in the clerk’s job for 37 years, was charged with assaulting a female court employee, Denise Fiandaca. Fiandaca filed a complaint with the Massachusetts Commission Against Discrimination and later filed suit in court saying court officials knew about Colonna’s behaviors for years and did nothing.
A judge ruled Colonna, a former state representative, incompetent to stand trial on the charges but he did not retire until five months later when he was again charged with assault, this time for an alleged attack on several family members with a knife. He had been placed on paid leave but no move was made to bring him before the committee on professional responsibility. He died in October, 2001. The Trial Court made a confidential settlement with Fiandaca in 2004.
In 2007, Fox 25 reported that Roxbury clerk-magistrate Michael Neighbors had a spotty attendance record. Then, in a follow-up report, the television station obtained an internal report that showed the clerk’s office in total disarray, with restraining orders not being served, warrants that were cleared not being removed from the system, phones not working in the office, and the number of backlogged cases being misreported. Despite being a no-show for months on end in the Fox investigation and the organizational mess in the office, Neighbors continues to hold his job with no report of public action taken.
In 1997, West Roxbury District Court Clerk Michael McCusker, a one-time racing commissioner appointed by Dukakis in 1990, was shipped to Brockton District Court after he was accused of making threatening statements to a judge and, at another time, waving a gun in his office. McCusker had charges filed against him by the committee on professional responsibility but retired with his pension intact in 1999 before his case was heard.
The ability to remove assistant clerks is equally difficult. Short of criminal conviction, as in the 2009 case of Chelsea District Court assistant clerk James M. Burke, who was fired for soliciting sexual favors from two prostitutes, assistant clerks can be removed only for cause.
Just what “cause” means became the focus of a lawsuit filed by James M. Whalen, an assistant clerk in Springfield District Court. Budget cutbacks forced the layoff of Whalen in 2002, but he was returned to his post in 2004. Whalen sued, claiming people with less seniority were not subject to the layoff, a distinction that to him meant he was let go “for cause.”
A judge ruled Whalen should have been granted the hearings required under the law for dismissing someone for cause. State officials agreed to a settlement in the case and last year, Whalen was paid more than $190,000, more than twice his $84,870 salary. The extra money represented back pay under the agreement for the time he was laid off, according to a court spokeswoman.
With their connections to the Legislature combined with regular contributions to campaign coffers, clerk-magistrates have been successful in expanding their earning power, increasing their autonomy, and beating back restrictions on their authority and pocketbooks.
Since 2001, individual clerk-magistrates and their assistants and their advocacy organization, the Association of Magistrates and Assistant Clerks, have combined to contribute more than $140,000 to candidates around the state, many of them Beacon Hill’s most powerful members such as past and present governors, speakers and Senate presidents, judiciary committee chairmen and ways and means chairmen from both chambers. The generosity has apparently not gone unnoticed by lawmakers.
Clerks’ salaries have traditionally been tied to the pay of judges, with clerk-magistrates earning 75.4 percent of a court’s chief justice’s salary, while assistant clerks made 71 percent of a clerk-magistrate’s salary. For the fiscal year 2006 budget, legislators passed a 15-percent boost in judge’s salary to nearly $131,000, meaning clerks received about an $11,000 hike.
But during deliberations in November 2005 on a supplemental budget for FY2006, and without a recorded vote, an amendment was quietly introduced in the Senate that increased the salary for clerks to 81.6 percent of judges’ pay, meaning clerks got a total raise of $22,000 to more than $110,000. Assistant clerks received an increase to 77 percent of their bosses’ salaries, to $84,870 a year. There was no author identified in the records.
A few years ago, as budget deficits began growing, a move was made to direct to the state coffers some or all of the $40 fees clerks can make from setting bail for defendants arrested after court hours at night or on weekends. The proposal went nowhere in the face of heavy lobbying from the clerks.
In 2008, the Legislature was considering a bill to decouple the clerks’ salaries from judges, a move that could mean lower pay. Again, it was successfully defeated by strong lobbying and campaign contributions of at least $25,000 to lawmakers from clerks and their association that year.
The clerk-magistrates are also very sensitive to any encroachment on their authority, no matter how minor. Last year, Mulligan, the chief justice of administration and finance, issued a directive that all early releases of clerk and other court employees during weather or other emergencies had to be cleared through his office as a way to ensure adequate staffing coverage at courthouses.
Hogan, the Boston Municipal Court clerk-magistrate, serves as president of the state’s professional association of clerks. With the unanimous backing of his group, Hogan protested that only clerks had the statutory authority over the personnel in their offices. Mulligan subsequently revised his directive to say that first justices at courthouses could make decisions about employees during emergency shutdowns but only “after consultation” with clerks.
One former member of the Court Management Advisory Board said the power of the clerks is formidable. “When we were talking with probation officials, even they expressed their envy for the power of the clerks,” says the official, who asked not to be identified.
What should be done?
The 2003 Monan report identified lifetime tenure and near-total autonomy as the biggest impediments to effecting change in the courts, a charge that has been made countless times by a number of panels studying court management.
“There are also obstacles to good management within individual courthouses. First Justices often are armed only with moral suasion in their dealings with probation officers and clerks,” says the report. “Clerks who are appointed for life openly feud with the judges they are supposed to support.”
Some judges and clerks say the animosity referred to in the Monan report has lessened in recent years, in part because the courts are now using metrics to gauge the performance of each court and the judges and clerks realize cooperation is key to keeping those metrics high.
Both the Monan report and last year’s Court Management Advisory Board report call on the Legislature to revamp the structure of the appointed clerks’ offices, giving judges more power to hire assistants and making clerks more accountable to the judges in their courthouses. The Monan report did not specifically recommend a mandatory retirement age but pointed out the pitfalls of lifetime tenure. Last year’s advisory board report cited eliminating lifetime tenure and instituting a retirement age as one of its seven core recommendations.
State Rep. Daniel Winslow, a former judge and Romney administration official, has introduced a bill calling for a mandatory retirement age of 70 years old for clerks and assistant clerks, the same as the mandatory retirement age for judges.
Hogan, who was appointed to his position in 1999 at the age of 34, says members of the clerks’ association would be open to a mandatory retirement age—in exchange for a better pension classification. Hogan says some members would support a mandated retirement age if they could get a Group 2 or Group 4 pension classification, the same as public safety jobs such as state or local police, firefighters, and some sheriffs’ positions.
The change would allow them to collect far more generous retirement benefits at a younger age. A clerk who retired at the age of 55 with 20 years service in Group 1, which is what clerks now get, would receive about 30 percent of his or her salary. If the retirement was under Group 2, they would get about 40 percent, or if Group 4, about half their salary. And they could max out their benefits at an earlier age in either of the higher categories.
Hogan, who could retire at age 70 with 80 percent of his salary no matter what category he was in, makes clear he does not support the pension-retirement age swap. “I could name several judges who have reached the mandatory retirement age at 70 but who are in better shape than I,” Hogan says. “I think it’s a very dangerous, dangerous proposition for some of my colleagues to say, ‘We’ll take retirement if we get Group 2 or Group 4.’ If you’re not cutting it, it’s something your family should say, ‘Hey, maybe it’s time to do something else.’”
Mulligan, the trial court’s chief justice for administration and management, told CommonWealth last year that everyone in the court system should have a term and serve at the pleasure of his or her superior. His own position, he noted, and those of department chief justices and the jury commissioner all come with five-year terms. Even Supreme Judicial Court justices have a mandatory retirement age of 70.
Yet when asked after a February panel discussion on hiring controversies in the Probation Department about the lifetime appointments of appointed clerk-magistrates, Mulligan begged off. “They have certain autonomy, there’s no question about that,” he says. “But at this point we have enough to take on without taking on the issue of what autonomy clerks should have.”
But it appears a panel appointed by the Supreme Judicial Court to investigate court hiring will look into clerk-magistrate offices. Former attorney general Scott Harshbarger, who heads the panel, says he has heard stories about the insular clerks and their ties to the Legislature. But he says he has no empirical evidence about the clerks, only anecdotes.
“We had the Ware report,” Harshbarger says of the SJC-commissioned study of the Probation Department. “So in effect the facts had been found for us there. One of the issues with the court officers and the clerks is we don’t have that kind of detailed investigative fact-finding. Our mission is to figure out whether we need to do that kind of factual review to determine whether or not in the past there have been inappropriate influences in hiring and promotion practices.”