The Freedom Bulletin

Note: To make it easier to keep track of things, I created a brief “who’s who” of the people involved in this case.

Observers in federal court heard more about the workings of state government today at former speaker Sal DiMasi’s corruption trial. Governor Deval Patrick’s budget chief, Leslie Kirwan, testified about the pressure she felt from Speaker DiMasi’s office to include funding for a $15 million software license in a budget bill, software which prosecutors allege was purchased from Burlington company Cognos because of bribes.

First, however, Patrick’s former deputy chief of staff, David Simas, continued his testimony from yesterday, when he described how he included the $15 million provision in an immediate needs bond bill at the request of DiMasi, so that the legislation could be passed more efficiently. During cross-examination by DiMasi’s lawyer, Bill Cintolo, he admitted that the governor’s office did not automatically include any provision that was requested but only those that they decided, after analysis and investigation, were worthwhile. In fact, performance management software like that sold by Cognos was one of Patrick’s priorities and was considered “best practices for state government” because, in Simas’s words, “You get better decisions when you get better information.” Before including the provision, he did not speak to DiMasi directly, but merely members of his staff, and no one told him, “it better be in there.” Simas agreed that the ultimate responsibility for deciding what is included in a bond bill, and whether to actually follow up on purchasing the items in the bill, rests with the governor’s office. The state legislature does not have authority over procurement, he said.

DiMasi’s co-defendants, Dickie McDonough and Richard Vitale, were not involved in any interactions with the governor’s office as part of this deal, their lawyers pointed out during their cross-examinations.

On re-direct by Assistant U.S. Attorney Ted Merritt, Simas said that the software purchase was not consistent with the emergency nature of the bond bill, at least as the bill was initially planned, and it was not necessary to maintain any current programs. “At whose request was the $15 million performance management software provision included in the immediate needs bond bill?” Merritt asked. “It was at the request of the speaker and his staff,” Simas replied.

Again, on re-cross, Cintolo asked whether anyone from DiMasi’s office had ever said, “If you don’t put this in, we’re going to bog this down.” Simas said no one had.

Briefly, before the morning break, Maureen Marra (sp?), keeper of the state’s lobbyist registration records, took the stand. Her records showed that McDonough lobbied for a wide variety of organizations, including Suffolk Downs and the Massachusetts Nurses’ Association, but had not registered as a lobbyist for Cognos in 2006, even though he worked as one. On July 22, 2008, the information was updated when Cognos submitted paper filings.

After the morning recess, Leslie Kirwan took the stand. Currently working at Harvard, she was, at the time of the alleged scheme, the Secretary of the Executive Office of Administration and Finance (A&F) and one of eight members of the governor’s cabinet. Her role was to draft budget recommendations and shape policies. She described four occasions on which DiMasi had pressured her to include the $15 million software provision:

• Once, at a meeting shortly after Patrick took office, DiMasi “brought up business intelligence software as something he would like to see included in the bond bill.” Kirwan stated that she was concerned about this idea because “we were, in my view, not ready…there were a lot of other issues that were a lot more pressing.” When asked if she would have included the software in the budget had DiMasi not asked, Kirwan said no.
• Another time, DiMasi called her to inquire about the performance management software situation. “We were still in the earlier stages of establishing what our program would be,” she explained, reassuring him that she would get to it “in due course.”
• At another meeting in DiMasi’s office, the speaker and the acting chief of the Information Technology Division, Bethann Pepoli, discussed the software in a way that made Kirwan think they had discussed it before.
• In May 2007, during a celebration at Fenway Park to kick off the Red Sox’ sponsorship of the Massachusetts Health Connector, DiMasi approached Kirwan to ask her how the process was going with the software, and she replied, “We’re working on it. It’s coming along.”

She explained, “I took notice of the speaker’s interest in the business intelligence project status…He made a special point of making a phone call to me about it and speaking to me about it at an event that was for a different topic.” However, he never mentioned Cognos by name.

Around this time, two salesmen at Cognos, Chris Quinter and Joe Lally, emailed back and forth, describing Kirwan as “a major player” and “a rogue secretary” who was “flexing her muscles” and “could cause major issues.” After Kirwan met with Lally and others from Cognos, they agreed to reduce the price to $13 million and to include an upgraded support package. The contract was signed on August 24, 2007. “I expressed relief that the process had reached a conclusion,” she testified. “I expressed my satisfaction with the better terms…I expressed the hope that the speaker would be satisfied with the outcome and that would help another matter that we were concerned with.” (That other matter was related to the site of a data center in Springfield.)

When asked if she would have acted differently had she known that DiMasi (allegedly) received legal fees from Cognos for helping them get the deal, she answered, “I would not approve the contract and I would have sought legal advice about what other steps to take.”

After the deal was signed, one of the losing bidders protested, and Kirwan contacted the Inspector General’s office. The contract was voided and the money returned to the state. The state did not buy another performance management software license for $15 million.

On cross-examination, DiMasi’s other attorney, Thomas Kiley, tried to characterize the bid protest as motivated by the disappointment of the losing vendor or errors in scoring the different types of software, as opposed to corruption in the process. Kirwan maintained, “they believed that the process was flawed and should be reconsidered.”

As always, check out the usual sources for more details: Boston Herald, Boston Globe, and Mass Lawyers Weekly.

The next day of testimony will be Friday, when we very well may hear from Governor Patrick himself.