The administrator in charge of hiring in the state trial courts is taking the unusual step of urging the Supreme Judicial Court not to fire a Barnstable clerk magistrate and instead use the case as an opportunity to revise the disciplinary process for all clerk magistrates.
Court Administrator Lewis H. “Harry” Spence, appointed last spring to professionalize and manage personnel matters after the Probation Department patronage scandal, sent a letter to Chief Justice Roderick L. Ireland last week, weighing in on the discipline case of Robert E. Powers, clerk magistrate of Barnstable District Court.
A disciplinary committee alleged 13 months ago that Powers, 59, was often verbally abusive and confrontational in court, that he took months to decide minor cases, and that he was hours late to work virtually every day. The committee has recommended that Powers be fired.
The SJC, which will decide the case, is set Tuesday to hear arguments by lawyers representing Powers and the disciplinary committee.
In his five-page letter, Spence says the current system for disciplining clerks is “highly unusual and substantially deviates from recognized organizational practice” because only the Committee on Professional Responsibility for Clerks of the Courts can initiate disciplinary procedures against clerk magistrates. Neither the chief justice of the trial court, the court administrator, nor the chief justices of each department can fire a clerk magistrate despite their authority over judges and daily courthouse operations.
The SJC, acting on recommendations from the discipline committee, has the final say on the removal of clerk magistrates, a position that carries a lifetime appointment.
While Spence says “whether Mr. Powers’ egregious behavior warrants termination . . . I express no opinion,” he goes on to recommend that the court impose “severe discipline with notice of future termination, which I believe will be more effective.”
‘They need not and should not be told where the line for removal is.’
Spence maintains that it is unclear to Powers and the other clerk magistrates what behavior constitutes grounds for termination because, historically, the court has not fired clerks for conduct that may be improper but not illegal.
A spokeswoman for Spence said he could not comment further because the matter is spending.
The last clerk magistrate or register to be removed while in office was Robert Antonelli, the Middlesex register of probate, who left in 1999 amid charges that he failed to be impartial and used his office to promote his own interests.
Thomas O. Bean, special counsel for the Committee on Professional Responsibility for Clerks of the Courts, declined to comment on Spence’s letter. Currently, the committee includes two judges, two clerk magistrates, and one lawyer.
In a motion filed Friday, Bean asked that Spence’s letter be stricken from the record or disregarded because it was submitted months after a deadline for filing paperwork in the case, and because it violates the court’s rules as an unauthorized and unsolicited opinion from Spence, who is not a party to the case.
“Clerk magistrates occupy positions of trust and honor,” Bean wrote. “They are expected to exercise considerable discretion and judgment. They need not and should not be told where the line for removal is, so they are in a position to walk up to it but not cross it.”
Spence suggests any new discipline process for clerks should allow Trial Court leaders to establish performance standards and play a direct role in terminations. But because clerks have lifetime appointments, Spence asserts they should be afforded “full opportunity to correct deficiencies in performance” and cautions that the court will need to craft an appeals process “to protect against the misuse of disciplinary authority.”
Powers is serving in Taunton District Court pending the outcome of his case, which has gone on for more than a year.
In December 2011, the Committee on Professional Responsibility for Clerks of the Courts filed charges against Powers, accusing him of frequent unprofessional conduct in his four years in Barnstable court.
A retired Appeals Court judge who heard Powers’s case last spring recommended that he be removed from the bench. Last September, Powers appealed to the committee, seeking punishment short of termination, saying that he had learned his lesson. That request was denied.