The outside investigators probing charges that Sen. Stan Rosenberg’s husband improperly influenced government business are not allowed to independently subpoena witnesses.
Investigators must reveal the identities of potential witnesses they wish to subpoena to the six sitting senators on the Ethics Committee, a conflict of confidentiality that some possible witnesses say threatens the integrity of the investigation itself.
The investigation into Rosenberg, the former Senate President, and his husband Bryon Hefner was assigned to an independent team of investigators in part to shield State House aides and witnesses with careers in state government from retaliation from elected officials. Now, potential witnesses in the probe fear the inquiry may expose key State House staff to future political retribution, casting a pall over the investigation.
Some Senate staffers are concerned that the identities of witnesses subpoenaed by the investigators will be known to members of the Senate Ethics committee, which includes senior members of the body allied with Rosenberg.
“I can’t imagine a situation where this investigation is comprehensive enough to be credible,” the chief of staff to one Senator told WGBH News.
“There is some concern among my peers that some people might be discouraged to come forward,” another Senate staffer said.
At the heart of staffers’ objections is that the special investigator charged with finding out if Hefner had inappropriate access to Senate business do not themselves have direct authority to issue subpoenas in the case. Instead, subpoenas must go through the Ethics Committee before they are issued, meaning that sitting Senators must sign off on the summonses.
“There’s no question that it would create a chilling effect with respect to at least some witnesses if the investigation is set up in such a way that members of the Legislature will know who is saying what or who is even in line as potential witnesses,” civil liberties attorney Harvey Silverglate said.
The Boston Globe reported in December that Hefner claimed to have influence over Senate business and used it as leverage in alleged acts of sexual assault against men with business in state government. The Ethics Committee is investigating Rosenberg’s possible involvement or knowledge of his husband’s actions and whether he broke Senate rules in the process.
Silverglate said that if witnesses fear to come forward, it could impact the thoroughness and accuracy of the investigation.
The Senate staff members who spoke to WGBH did not single out members of the committee or Rosenberg himself as politicians they feared would retaliate. Instead, they feared Senate members knowing the names of which witnesses were involved and the reputation that comes with cooperating with investigators.
Rosenberg wrote that he believe the investigation was in the best interest of the Senate in a letter he wrote when he stepped down in December.
“I want to ensure that the investigation is fully independent and credible, and that anyone who wishes to come forward will feel confident that there will be no retaliation,” Rosenberg wrote.
A spokesperson for Senate Ethics Committee Chairman Michael Rodrigues would not comment on staffers’ objections or the confidentiality of subpoenaed witnesses.
Likewise, a spokesman for Sen. Michael Rodrigues, the Ethics committee chairman, referred to the committee’s Dec. 18, 2017 statement announcing the hiring of special investigators.
“The Committee also restates its commitment to protect the identities of victims and witnesses who choose to cooperate with the investigation,” the statement read. The Senate’s own rules regarding ethics investigations states that “[b]reach of confidentiality may itself be grounds for disciplinary action.”
The order adopted by the Senate late last year to open the Rosenberg probe called for an independent third party to issue a report on their findings about the Amherst Democrat’s possible violations of senate rules and that the report “shall maintain as confidential the identity of any individual providing information to the investigator, unless the individual specifically consents to being identified.”
The investigators, three attorneys from the law firm Hogan Lovells, are not authorized to issue subpoenas on their own, according to a spokesman for Acting Senate President Harriette Chandler. In order to compel testimony from witnesses, the investigators must forward the names of witnesses to the Ethics Committee itself before summones could be issued. Those names would be revealed to the committee’s members, some of whom are long-standing allies of Rosenberg.
“Without subpoena power to the investigators, they have to go back to the Ethics Committee, who is run by Senators, and who will now see who is speaking to the investigators,” one staffer with knowledge of a Senate staff meeting told WGBH News. The staffer added that they’re concerned about the independence of the investigation and the investigator’s commitment to preventing retribution against witnesses.
Several top senate staff members raised concerns about the apparent conflict when the chiefs of staff for each Senator held a routine meeting this month. After being briefed on the investigation, staffers asked attorneys from the Senate Counsel office if subpoenas would remain secret from members. According to several sources at the meeting, Senate Counsel did not offer a clear answer to the group, but instead offered to speak with individuals about their concerns.
“That’s when a bunch of people were like 'now that’s a little weird. Now members of the committee will know,” another Senate chief of staff said, adding that he and others grew “nervous about that,” when the staffers were not assured of confidentiality for themselves or subordinates.
Acting Senate President Harriette Chandler has vowed to step down at the conclusion of the Rosenberg investigation an allow a new vote be take to chose the next Senate President. Four senators have expressed an interest in the position should Rosenberg not chose to be a candidate for the presidency.
Westport Sen. Michael Rodrigues chairs the committee alongside vice chair William Brownsberger, with Democratic Senators Cynthia Creem and Cindy Friedman also on the panel. Minority Leader Bruce Tarr and Sen. Richard Ross are the Republican members of the committee.
A spokeswoman for Rodrigues declined to comment for this story, as did a spokesman for Chandler. Brownsberger referred WGBH News to Rodrigues office. Every other member of the Senate Ethics Committee, including the two Republicans, failed to respond to a request for comment on the integrity of their investigation.
“I think it’s a fundamental flaw because, after all, they are after all investigating the former and possibly again future president of the Senate,” Silverglate said.
Silverglate said the Senate could cement confidentiality in investigation and resolve the problem of a chilling effect by allowing the independent investigators to have direct subpoena power themselves. To maintain control over that function of the investigation, Silverglate said, would “almost invariably compromise that independence.”
