Measure sheltered ex-state
official
Was defendant in rights lawsuit
Governor Mitt Romney and state lawmakers
quietly approved a budget amendment last fall that saved a politically
connected former state employee from having to pay $250,000 in damages for
retaliating against a whistleblower.
A Suffolk County jury awarded $750,000 last
June to Bijan Mohammadipour, a high-ranking state engineer who said he was
humiliated and stripped of job duties after he pointed out hazardous conditions
at an asbestos-filled state office building.
The state was ordered to cover two-thirds of
the award, but the rest was to be paid by his former boss, Dennis R. Smith,
who, the jury concluded, had deliberately violated Mohammadipour's civil
rights.
But Smith, a prominent Plymouth Republican
who has made regular contributions to GOP candidates and who heads the New
England office of the federal General Services Administration, won't have to
pay a penny because of a special law passed in September.
In a little-noticed provision included in a
supplemental spending bill and mentioning Smith by name, Romney and the
overwhelmingly Democratic Legislature provided that the state cover Smith's
portion of the damages and his legal expenses, up to $1 million.
The Romney administration introduced the
measure because it believed that Smith ''acted in good faith in carrying out
his job responsibilities and . . . should not face a potentially catastrophic
financial loss," Harry Grossman, general counsel for the Executive Office
of Administration and Finance, said in a statement. If the state had not come
to Smith's aid, Grossman added, it would have difficulty attracting and
retaining talented managers.
Asked whether Smith's political ties had anything
to do with it, a Romney spokeswoman declined to comment.
But Mohammadipour and his lawyer said the
special provision flies in the face of a 1994 Massachusetts law passed
specifically to protect whistleblowers.
''On the one hand, the Commonwealth is
saying, 'We don't like people who retaliate against whistleblowers,' "
said his lawyer, Eric Maxwell, who said he only learned this month about the
measure's passage. ''On the other hand, it's now protecting the guy who went
after the whistleblower."
Smith, who has served as regional
administrator of the General Services Administration since 2001 and makes
$148,200 a year, did not return phone calls to his office yesterday.
Leslie Greer, a special assistant attorney
general who defended Smith and the state in the civil lawsuit, said yesterday
that the law was not intended to protect only Smith. She said state officials
were worried about managers bolting from their jobs if they feared being held
personally liable in such suits.
From 1993 to 2001, Smith served as
superintendent of the Bureau of State Office Buildings under Governors William
F. Weld and Paul Cellucci and Acting Governor Jane Swift. Prior to that, he
directed the Boston regional office of the US Department of Education.
A former math teacher, Smith has made several
contributions to Republican politicians on the state and federal level in
recent years, including $1,000 to George W. Bush in his first run for president
and then $2,000 in his reelection bid.
Mohammadipour sued the state and Smith in
Suffolk Superior Court, citing violations of the state's
whistleblower-protection statute and federal and state civil rights laws.
He testified at trial that Smith orchestrated
a campaign to discredit him, excluded him from meetings, downgraded his employee
evaluations, and barred him from the State House after Mohammadipour drew
attention to potentially dangerous asbestos at the Saltonstall State Office
Building in 1994. The building was closed in 1999, then gutted and renovated at
a cost of $186 million.
A Newton psychologist hired by Mohammadipour
testified that the Iranian-born Danvers engineer, now 52, suffered from panic
attacks, depression, and symptoms similar to post-traumatic stress disorder as
a result of the retaliation.
Greer countered at trial that Mohammadipour
never proved he was punished for complaining about unsafe conditions or met
legal standards required to prove that federal and state laws had been broken.
Nonetheless, the jury sided with Mohammadipour.
One juror said afterward that she felt
Mohammadipour had set an impressive example for other state employees. ''I'm
honored to have somebody like Bijan making sure that when we come into these
buildings, we are safe," said juror Linda Nash.
Mohammadipour, the principal engineer for the
Bureau of State Office Buildings, said this week that the special legislation
covering Smith's damages could embolden other managers to retaliate against
whistleblowers.
''How would you encourage anybody who's been
involved with the Big Dig and they've seen wrongdoing to come out and blow the
whistle if the entire government rewards the person who retaliates against the
whistleblower?" he said.
Under Massachusetts tort law, the state can
typically protect the personal finances of an individual sued for violating
civil rights statutes while carrying out his or her job. But the law
specifically excludes defendants who ''acted in a grossly negligent, willful,
or malicious manner."
The jury in Mohammadipour's suit concluded
that Smith acted ''willfully, deliberately, maliciously, or with reckless
disregard" of Mohammadipour's free speech rights by retaliating against
him, according to a question posed to the jury.
After the verdict, Greer said, she met with
Romney administration officials and the attorney general's office about passing
a special law to pick up Smith's portion of the award and legal expenses.
''The problem wasn't so much that they wanted
to reimburse Smith," Greer said. ''It was that if this stood out there and
a former state manager loses his house because of personal liability, who's
going to go work for the state?"
Greer said the reason Maxwell was drawing
attention to the special law now was because she filed two motions in the past
week seeking to have the jury award thrown out in Superior Court.
Fearing that possibility or a reversal of the
verdict on appeal, Maxwell wanted to embarrass state officials to extract a big
settlement, she said.
Maxwell called that ludicrous, saying that if
state officials ''weren't embarrassed by the verdict of this jury, then they
will never be embarrassed by anything."
Jonathan Saltzman can be
reached at jsaltzman@globe.com. 
© Copyright 2005 The New York Times Company
Chapter 352 of
2004.
AN ACT MAKING APPROPRIAT
SUPPLEMENTING CERTAIN EXISTING
APPROPRIATIONS AND FOR CERTAIN OTHER
ACTIVITIES AND
PROJECTS.
House No. 5076
Whereas, The deferred operation of this act
would tend to defeat its
purpose, which is immediately to make supplemental appropriations
for the
fiscal year beginning
law, therefore it is hereby declared to be an emergency law,
necessary
for the immediate preservation of the public convenience.
Be it enacted by the Senate and House of Representatives in General
Court assembled, and by the
authority of the same, as follows:
SECTION 153. Notwithstanding any general or special law to the
contrary, the Secretary of Administration and Finance is hereby
authorized to indemnify, exonerate, defend and hold harmless the
former
Superintendent
of the Bureau of State Office Buildings, Dennis Smith,
from personal financial loss and expenses, including legal fees
and
costs, if any, in an amount not to exceed $1,000,000 arising out
of or
relating to Mohammadipour v. Bureau of State Office Buildings et
al,