CIVIL RIGHTS LAWSUIT SEEKS RECORDS SHOWING IMPACT OF TRIAL COURT EMPLOYMENT PRACTICES ON DIVERSITY

Citing Importance of Transparency and Accountability in Light of Probation Department Scandal, Suit Filed Directly With Supreme Judicial Court

In a public records lawsuit filed directly with Massachusetts’ highest court on December 14, 2016, the Lawyers’ Committee for Civil Rights and Economic Justice asked the Supreme Judicial Court to order the release of information on the impact of the Trial Court’s employment practices on employees of color. The lawsuit cites the recent Probation Department scandal and ongoing concerns about non-merit based employment practices in the Trial Court. It asks for records showing the race and gender of individuals hired and promoted as court security officers over the past several years, as well as information on hiring and promotion practices. “With this lawsuit, we seek to remove the shroud of secrecy that currently keeps the Trial Court’s employment practices hidden from public view,” said Oren M. Sellstrom, Litigation Director of the Lawyers’ Committee. “We are particularly concerned that minority women are not being hired and promoted at rates that would be expected under a fair and equitable process.” Mr. Sellstrom said his organization requested records on the Trial Court’s demographics and employment practices in June 2016, but was rebuffed by the Trial Court, which stated that as part of the judicial branch it does not have to comply with the public records law.

Julia Huston, a partner at Foley Hoag and past President of the Boston Bar Association, is representing the Lawyers’ Committee on a pro bono basis in the case. “There is a strong public interest in permitting access to these records,” Ms. Huston said. “The records requested by the Lawyers’ Committee are clearly administrative, rather than judicial, in nature, and are expected to show the extent to which factors other than merit may be infecting the hiring of court officers. This issue is particularly important given the recent efforts to bring greater transparency to the Trial Court following revelations of problems in the hiring of probation officers.”

In 2010, a series of media reports highlighted rampant patronage hiring in the Probation Department of the Trial Court. The resulting scandal led to a criminal investigation, and top officials were convicted of mail fraud, racketeering, and conspiracy. An independent counsel appointed by the Supreme Judicial Court found “a systemic abuse and corruption of the hiring and promotion processes of the Probation Department.” A Task Force appointed to comprehensively review hiring and promotion procedures in the judicial branch found a problem that extended beyond the Probation Department and was rooted in a lack of transparency. The Legislature also responded to the revelations. In 2011, it restricted the role of recommendations in hiring and promotions; set forth a detailed process for the hiring and promotion of court officers; and increased the Supreme Judicial Court’s oversight of the Court Administrator.

Mike Alkins, President of the Massachusetts Minority Court Officers Association, said that problems persist since these reforms, and that minority employees are particularly affected by the continuing problems. “Unfortunately, employees of color continue to experience unfairness in the hiring and promotions process,” he stated. “The records that the Lawyers’ Committee has requested are critical for revealing the extent of these problems.”

Two days following the filing of the lawsuit, the Trial Court released some documents related to the issues flagged by the Lawyers’ Committee, while continuing to insist it is not covered by the public records law. Mr. Sellstrom called the release “inadequate” and said that the fact that it came only after the lawsuit was filed “underscores the problem. It is unacceptable for a public agency to refuse to release documents that are rightfully public records, and then act in a limited manner only when a lawsuit is brought. That is antithetical to basic principles of transparency.”

Joining Ms. Huston in representing the Lawyers’ Committee are Zachary Gerson and David Kluft, also from Foley Hoag. In a move reflecting the importance of transparency and accountability at the Trial Court, the case has been filed directly with the Massachusetts Supreme Judicial Court.

The case is Lawyers’ Committee for Civil Rights and Economic Justice v. Harry Spence, Office of Court Management of the Massachusetts Trial Court, and Executive Office of the Massachusetts Trial Court, SJ-2016-503.