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Councilor calls for investigation into judicial bid

A member of the Governor’s Council called on the Patrick administration to investigate circumstances around reviving the judicial bid of Michael ­McCarthy and suggested that the Pittsfield attorney should be disbarred for taking the oath of office despite not winning confirmation.

Councilor Marilyn Devaney called it “disturbing information” that McCarthy had two commissioners at the Registry of Deeds in Berkshire County give him an oath of office, in case he is eventually appointed to the Southern Berkshire District Court.

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“He should be disbarred for what he has done, the action he has taken,” Devaney said during the weekly Governor’s Council meeting Wednesday.

McCarthy told State House News Service Tuesday that he took an oath as a “procedural step” because he feared that while his bid to revive his nomination played out he would miss a 90-day deadline to be sworn in. Governor Deval ­Patrick, who nominated him twice for the district court, had no knowledge he took an oath, said a spokeswoman.

McCarthy twice failed to win confirmation by the Governor’s Council. The first time was last September, in a 3-to-3 vote, with Councilor Mary-Ellen Manning abstaining. Lieutenant Governor Timothy Murray, who typically chairs the meetings and breaks a tie, was on a trade trip to Germany.

Manning attempted to change her abstention to a yes vote 21 days later.

McCarthy was rejected by the council again in February, on a 5-to-3 vote.

‘This is absolutely unbelievable. [Michael ­McCarthy] is sworn in, and the governor didn’t even know it.’

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“This is absolutely unbelievable,” Devaney said Wednesday. “He is sworn in, and the governor didn’t even know it. This is something that deserves an ­investigation.”

Murray said it was not within his purview to launch an inves­tigation, but said the governor’s chief legal counsel is review­ing the matter to determine when a vote is binding.

Councilors Michael Albano and Robert Jubinville argue that McCarthy was given the approval of the council when Manning changed her vote, which they argue gave him the judicial appoint­ment in October.

In the letter given to the governor Wednesday, the two councilors wrote, “The discretion of the governor to nominate was exercised and the appoint­ment was completed when the fourth councilor of the seven councilors recorded favorable advice and consent in the council register in a timely manner. ”

Devaney was the only councilor during Wednesday’s meeting who commented on the ­issue, which has caused a rift in the council.

After the meeting, Murray said it is his view councilors cannot change their votes after formal meetings, but the admin­istration is waiting for a report from the legal counsel.

“We have a public vote that takes place, that the public relies on, when we meet formally as an assembly at noon on Wednesdays, and councilors have an obligation to be present and to vote accordingly,” said Murray.

“To allow councilors, outside of the public session, to change their votes after the body has voted I think has the potential to wreak chaos on the judiciary, quite frankly, and ­every vote that is taken here.”

Murray said he did not know if there were any ramifications for McCarthy taking an oath, adding he was unaware of the specific circumstances.

“He is not sitting on the bench,” he said.

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