Emails Show Wage Debate in AG’S Office before Alleged Extortion
By State House News Service | December 21, 2016, 9:14 EDT
STATE HOUSE – Years before it became the centerpiece of a federal extortion case that rocked Boston City Hall, an outdoor music festival and its hiring practices were the subject of debate within the office of former Attorney General Martha Coakley.
Boston Calling’s offer to let music fans work to gain tickets to its weekend-long pop music festivals appeared “highly problematic” and seemed to violate the minimum wage law, a lawyer in the attorney general’s Fair Labor Division told a top City Hall aide, according to emails obtained by the News Service through a public records request. A couple months later in the summer of 2014 the aide, Tim Sullivan, allegedly extorted the company to hire union workers.
Sullivan handled intergovernmental and external affairs for Boston Mayor Marty Walsh until this past June when law enforcement officers arrested him on federal extortion charges. Sullivan and his co-defendant, City Hall tourism director Kenneth Brissette, allegedly pressured Boston Calling to hire members of the International Alliance of Theater Stage Employees (IATSE) Local 11. Accused of forcing the company to hire workers for “unwanted, and unnecessary and superfluous services,” Brissette and Sullivan pled not guilty and are on leave from their positions.
More than six months before the alleged extortion, the music festival’s creative means of staffing sparked discussion within the attorney general’s office.
Boston Calling has brought to City Hall Plaza an eclectic group of major musical acts. Modest Mouse, Nas x The Roots and The National were featured on lineups for its spring and fall festivals in 2014. The Work Exchange Team, which provided staffing for the festival, offered fans access to the concerts in exchange for an application fee, $200 deposit and work at the show, according to an email from a Department of Labor Standards lawyer.
According to other emails dating back more than two years before the arrests, not everyone in the attorney general’s office shared the opinion of Jocelyn Jones, a veteran of the Fair Labor Division, who in March 2014 wrote that she had told Sullivan she thought Boston Calling’s work-for-tickets program looked like a minimum wage violation.
“I think we should avoid this,” Amy Goyer, the deputy chief in the Fair Labor Division wrote in December 2013 after Boston Calling’s volunteer program was flagged by an official at the Joint Task Force on the Underground Economy and Employee Misclassification. “This is an industry wide practice and we would be opening the flood gates if we take it.”
“I hear what you are saying, but the issue is whether someone is making money off of someone else’s free labor,” wrote Matthew Berge, chief of the Fair Labor Division. “The boss may not want us to pursue it if [sic] is stifling business in MA, which I don’t see as the case.”
“Even if there is a technical violation, I just don’t think we have the resources to do this,” Goyer wrote back. She said, “I don’t think we should touch it with a ten foot pole.”
A month later, in January 2014, Walsh – a former building trades labor leader and Dorchester state representative – was inaugurated as the first new mayor of Boston in more than two decades. Sullivan, a lobbyist for the AFL-CIO, soon joined him at City Hall.
After the arrests of Brissette and Sullivan this past May and June, Walsh said he was troubled by allegations they had pressured the concert to hire union labor.
“We don’t encourage people to use union labor. There’s a process in place. We have 800 events a year in the city of Boston and the topic of union labor should never come up, and to my knowledge it hasn’t,” Walsh said in June after Sullivan’s arrest. Walsh has maintained he did not know about any pressure from City Hall on Boston Calling to hire union labor. He was aware of the concerns raised in 2014 regarding the festival’s work-for-tickets program.
“The Mayor was aware of a potential wage issue with the volunteer program but he believed it had been resolved,” Walsh’s spokeswoman told the News Service in an email. “All vendors are required to adhere to the living wage law under the city’s living wage ordinance, and comply with state and federal law.”
A Feb. 19, 2014 email from Gregory Reutlinger, deputy chief of investigations in the Fair Labor Division, said, “Apparently concerns about the volunteering has been brought to the attention of the Mayor’s as well.”
While Sullivan allegedly violated federal law in the summer of 2014, in the months beforehand he worked with state officials who were seeking to get to the bottom of Boston Calling’s staffing program.
On Feb. 26, 2014, Jones told colleagues in the attorney general’s office she had spoken to Sullivan.
After 15 years in the Fair Labor Division, Jones now works for Segal Roitman as a lobbyist, fair wage attorney and strategic counsel to labor unions, according to her law firm biography. In the spring of 2014 she was deputy chief and special counsel for fair labor policy within the division. In emails from more than two years ago Jones relayed the opinion she had shared with Sullivan.
“I let him know that it seems highly problematic and that the volunteers do not appear to be true volunteers, but rather employees, who are entitled to overtime and minimum-wage etc.,” Jones wrote to Berge and other colleagues about a conversation she had with Sullivan on Feb. 27, 2014. “He’s going to circle back with me tomorrow to see if they need us to reach out to the company.”
On March 7, 2014, Jean Zeiler, the general counsel of the Department of Labor Standards, emailed Jones with her take on the situation.
“It is a real marketing coup for these companies – not only do they get the work done for free, but the volunteers have to pay to apply for the unpaid position, pay a $200 deposit that they will lose if they don’t cancel in advance or show up for work, and the volunteers get rated so they will get points towards being able to volunteer again at another event. The volunteers get a free pass to the event,” Zeiler wrote. “Of course, we realize they probably love it since they get to go hang out in the crowd and go to the concert. A 3-day regular pass is $175; a VIP pass is $375.”
“I know all about it, had told Tim Sullivan that it looked like a minimum wage violation to me,” Jones responded.
According to an email from the Joint Task Force on the Underground Economy, the Work Exchange Team was hired to provide volunteers for Boston Calling’s May concert.
“Through these programs you can earn free tickets, AND get your feet wet in the music industry and work your way into a paid job at music events!” the company’s website read recently.
Upholding wage, overtime and other laws concerning workers, the attorney general’s office has criminal enforcement authority, the ability to issue civil citations and the power to resolve matters through a settlement agreement.
At Sullivan’s suggestion, Jones scheduled an April 9, 2014 meeting between the concert producers, Zeiler, and Heather Rowe, the director of the Department of Labor Standards and the Joint Task Force on the Underground Economy.
On the other side of the table at the meeting were Carole Brennan and Jed Nosal, Boston Calling’s attorneys from Brown Rudnick, according to scheduling emails. A former journalist, according to her law firm biography, Brennan had been spokeswoman for Boston Mayor Tom Menino, who died in the fall of 2014. Nosal had been Coakley’s chief of the Business and Labor Bureau, and staff counsel to the state and Boston police departments, according to his biography.
By May 8, 2014, a month after the meeting and only two weeks before Boston Calling’s spring concert, the situation had been resolved, at least from Jones’s perspective.
“Just to make sure everyone knows, our intervention with Boston Calling to make sure they were going to be properly adhering to the wage and hour laws was successful,” Jones wrote, indicating she had “let the Mayor’s office know, through Tim Sullivan, who had contacted me initially, and they’re grateful.”
According to the attorney general’s office, which is now run by Maura Healey, the office made an informal agreement with Boston Calling that it would begin paying its workers at least the minimum wage and would no longer require a deposit or application fee.
Jones provided an email statement to the News Service, recalling her interactions with Sullivan and Boston Calling.
“Tim called to report to me in the Office that the City had received information suggesting that Boston Calling, with whom the City had a contract to produce a music festival on City Hall plaza, intended to treat its concert workers as volunteers – not employees, and that they were also apparently charging the workers to apply for the jobs and requiring that the workers put down a deposit for the opportunity to work. Tim also indicated that he had heard that the workers were being ‘paid’ with concert T-shirts and free admission to the festival at which they would be working,” Jones wrote. She said after meeting with Boston Calling “the company immediately took steps to properly classify its workers for all purposes (wage and hour, workers’ compensation and tax) and by all accounts properly paid its workers in compliance with the law.”
Jones said that in contacting her, Sullivan did what “one would hope every public official would do when confronted with information suggesting that a contractor with whom a public entity has a contract intends to deprive workers of the important protections to which they are entitled under the law.”
Federal prosecutors allege that Sullivan and Brissette went beyond advocating for fair pay in the months that led up to Boston Calling’s September festival.
From July 2014 through September, Sullivan and Brissette “repeatedly advised [Boston Calling] that it would need to hire members of IATSE Local 11 to work at the music festival,” according to the indictment.
Around the same time in June 2014, Brissette allegedly used his power to withhold permits for the non-union Mission Productions working on reality cooking show Top Chef, according to the indictment and other federal court filings. Brissette “ultimately relented” allowing the filming permits to be released, according to the indictment.
On Sept. 2, 2014, a day after Walsh advised union advocates to “do less battling, and more building” at the traditional Labor Day breakfast for pols and union officials and only three days before the festival, Boston Calling representatives met with Sullivan and Brissette, according to the indictment, and the festival producers agreed to hire eight laborers and one foreman from Local 11.
“Shortly thereafter, the City of Boston issued the necessary permits,” the indictment states.
The criminal case is still in the pre-trial phase.
Tom Kiley, an attorney for Sullivan, declined to comment on the emails. A spokeswoman for U.S. Attorney Carmen Ortiz also declined to comment on the emails.
— Written by Andy Metzger