High court takes up whistleblower claim

May 4—SALEM — Lawyers for the state will be back in front of the state's highest court this week, this time trying to convince the court to find that the state's whistleblower protection law does not apply in the case of the former sex offender board chairwoman ousted by then-Governor Deval Patrick over her handling of his brother-in-law's case.

The hearing Wednesday before the Supreme Judicial Court stems from the long-running lawsuit brought by the former head of the Sex Offender Registry Board, who sued Patrick and the state in 2014 alleging defamation and violation of the whistleblower law. The SJC dismissed the defamation claim against Patrick in 2017.

The remaining whistleblower counts are still pending in Salem Superior Court. In January, 2020, a judge denied a request by the state to dismiss those remaining counts. The state, represented by the attorney general's office, has appealed, leading to Wednesday's hearing.

Saundra Edwards of Lawrence, a veteran sex crimes prosecutor, was chosen to head the Sex Offender Registry Board in 2007. It was located in Salem at the time.

Her lawyer says she walked into an agency beset by controversy over a hearing officer's decision that Patrick's brother-in-law, Bernard Sigh, did not have to register as a sex offender despite a 1993 spousal rape conviction in California.

Nearly seven years later, as the governor was nearing the end of his second term, he decided to replace Edwards.

He then publicly characterized the decision as a firing — and acknowledged that her role in his brother's case had played a role in that.

"He held a grudge and acted upon it," Edwards' lawyer, Gail McKenna, argues in a brief to the SJC. The "governor told the public he fired her — all this happened because Ms. Edwards engaged in activities protected by the whistleblower statute."

The state, represented by assistant attorney general Terrence McCourt and Kelly Pesce, an attorney with Greenberg Traurig, say that the whistleblower protection law does not apply in this instance because the governor is not an "employer" but rather an appointing authority.

They also dispute that she was "fired," pointing to a resignation letter that she wrote — a letter she and her lawyer say she wrote in the immediate aftermath of being told Patrick had decided to replace her, and one that was undercut almost immediately by Patrick himself when he told the press he had fired her.

But even if the court were to find that the whistleblower law does cover the governor, the state's lawyers argue that Edwards was not removed over the types of protected activity that is described in the whistleblower law, such as refusing to go along with a practice, policy or precedent, that her complaint was made years after the fact, and that letting the case go forward could set a precedent that undermines the separation of powers and forces governors to retain appointees chosen by predecessors.

Edwards and McKenna counter that it was the agency that was was in the midst of setting a dangerous precedent when she arrived and decided to look into the hearing officer's determination.

The matter of Patrick's brother-in-law had first come to public attention when The Boston Herald reported on it during Patrick's 2006 campaign, a report that, nearly a decade later, Patrick would slam as having "nearly destroyed" his sister and brother-in-law's lives.

After arriving at the agency, she learned that the hearing officer, A.J. Paglia, had gone ahead with a hearing on the matter and concluded that "spousal rape" was akin to indecent assault and battery, not rape, and had then determined that Sigh would not have to register.

Edwards expressed concern that the officer had gone ahead and held the hearing despite being told to wait for an advisory opinion from the attorney general's office, that he'd allegedly decided after reading the motions, before the hearing, and that he'd given his decision immediately.

In court filings, Edwards said she discussed the matter with Paglia and learned that he understood the argument that legally, the crimes are the same, but that he believed it to be unfair.

Edwards, according to McKenna's brief, then implemented required training for hearing officers. Rather than take part, she said, Paglia quit and filed his own whistleblower lawsuit, which the state settled in 2014 for $60,000.

Patrick publicly called that "the final straw," when questioned about her departure by the media.

McKenna's brief also refers to subsequent questions put to Patrick while the litigation was pending.

"Patrick admitted that he waited years to fire Ms. Edwards because he was concerned about the public reaction, considering it was personal with him," McKenna wrote in the brief filed with the SJC. "However, he felt comfortable terminating her employment in 2014 because 'I was nearing the end of my time ... as governor.'"

In 2017, Sigh was charged again with rape and other offenses and is now serving a six- to eight-year prison term.

Courts reporter Julie Manganis can be reached at 978-338-2521, jmanganis@gloucestertimes.com or on Twitter at @SNJulieManganis.