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Archive for the ‘FOIA’ Category

(Editor’s note: a high-resolution PDF version of this story can be found in CRI’s Special Reports section.)

A nine-month investigation by the Caesar Rodney Institute has uncovered lucrative no-show jobs and no-bid contracts for campaign donors, allegations of fraud and a systemic misuse of millions of taxpayer dollars.

By Lee Williams

Attorney Steve Kinion receives $16,000 taxpayer dollars per month to serve as director of the Delaware Department of Insurance’s Captive Insurance Bureau, even though he works and lives in Springfield, Illinois, where he maintains a thriving law practice.

A staffer in Delaware’s Captive Insurance Bureau – who asked not to be identified – at first said Kinion “commutes” to Delaware from Illinois.

The same staffer later admitted Kinion hasn’t been in the office for months.

Kinion’s two colleagues, who receive $16,000 and $10,000 dollars per month in similar contracts, have backgrounds that raise questions and concerns about the overall stewardship of the Captive Bureau.

All three well-compensated officials were handpicked to run the newly-created bureau by Delaware Insurance Commissioner Karen Weldin Stewart. Kinion donated thousands of dollars to Stewart’s 2008 election campaign.

Karen Weldin Stewart

The Department of Insurance (DOI) Stewart heads is entirely self-funded because of the fees and taxes it receives from insurance companies doing business in the state. What the DOI doesn’t spend on operating costs, it is required to contribute into the state’s General Fund.

A nine-month investigation by the Caesar Rodney Institute has found that Delaware taxpayers may not be getting their fair share of the millions of dollars the DOI rakes in annually – at a time when state employees’ salaries are being cut and services scaled back because of the worst economic crisis in recent memory.

Based on numerous interviews, court records and nearly a dozen Freedom of Information Act (FOIA) requests, including one for all of Stewart’s e-mail correspondence, and another for Global Positioning Satellite (GPS) data for her state-owned Dodge Avenger, CRI found an agency fraught with problems, some of which include: questionable hiring practices, questionable contracts for campaign donors, failure to comply with state law and most troublesome, millions of taxpayer dollars paid to out-of-state consultants.

Meanwhile, hardworking DOI staffers – longtime state employees who’ve seen insurance commissioners come and go – say they are keeping their heads down, waiting for the shoe to drop. They say something ultimately must change, and the department’s out-of-control spending must end. They just don’t want to get involved or caught up in the inevitable fallout.

Nowhere, they say, are the problems within the DOI better exemplified than at the Captive Insurance Bureau which Stewart created.

A ‘revenue generating’ bureau

The commissioner unveiled the “Captive-Financial Revenue Generating Division” on July 30, 2009.

Right from the start, the intent behind the Captive Bureau was to make money.

“The mission of the bureau will be to accelerate the formation of all types of new captive insurance companies in Delaware, while developing, implementing and growing several other potential revenue streams,” Stewart is quoted as saying in a press release announcing the new unit.

According to her written statement, captive insurance companies are “owned by the entities that they insure, are usually formed by businesses that wish to better manage the cost and administration of their insurance coverage, and are established with the specific objective of financing risks emanating from their parent group or groups.”

Captive insurance, or reinsurance, is provided by a company that is formed primarily to cover the assets and risks of its parent company or companies.

Basically, captives can be thought of as in-house insurance.

Companies turn to captives to reduce costs, enhance risk management, gain greater control over their insurance, and to directly access the reinsurance market.

Several offshore jurisdictions, such as the Cayman Islands, Anguilla, Barbados or the British Virgin Islands, have lower capitalization requirements that allow captives to be established with less initial investment and lower reserves.

Delaware has to compete nationally for its share of the lucrative captive market.

Like a more-traditional insurance company, a captive pays taxes and fees to the DOI in order to operate in Delaware.

Questionable appointments

Commissioner Stewart chose three outsiders to run the Captive Bureau. Bill White, who had been contracted for $15,000 per month to administer the DOI’s captive efforts, when it was a program rather than a bureau, did not renew his contract with the department.

According to Stewart’s press release, Steve Kinion was appointed as Director of the bureau. Kinion had been serving as “senior advisor” to Stewart and as a member of her transition team. There was no mention of his Illinois residency or law firm. He is not admitted to the bar in Delaware.

Stewart appointed her longtime acquaintance Mary Jo Lopez as the Captive Bureau’s Director of Business Development.

Lopez is the founder of Affinitee Group, LLC, which Stewart described in her written statement as an “insurance management and consulting firm.”

Wilmington attorney Edmond Ianni was chosen by Stewart to serve as the bureau’s Director of Strategic Development.

Stewart included an italicized disclaimer in the July 30 press release about the three appointments: “The positions of director, director of business development, and director of strategic development are independent contractor positions subject to Delaware’s procurement law and open bidding process.”

Kinion

According to Stewart’s 2008 campaign finance reports, Kinion paid $900 for a breakfast fundraiser on Sept. 23, 2008, and donated $1,200 to Stewart’s election campaign in May of that year.

Kinion’s Illinois-based law firm Zack Stamp, Ltd. names him as the lead attorney employed by the office. His bio on the company’s Web site describes his employment as “1999-present.” His Zack Stamp office phone includes the message “This is Steve Kinion. I am currently away from my desk.” There is no mention about his directorship of Delaware’s Captive Bureau or instruction on how to contact him at the Wilmington office.

The Caesar Rodney Institute obtained a copy of Kinion’s contract with the DOI through a request made pursuant to the state’s Freedom of Information Act (FOIA).

In the contract, he’s identified as “Zack Stamp Consulting,” which is abbreviated as “ZSC.”

“In consideration for work being performed by ZSC, the Department shall pay ZSC a monthly fee, in advance, of $16,000,” the contract states. “ZSC shall be paid the initial monthly fee of $16,000 upon signing this Agreement and the sum of $16,000 per month no later than the 15th day of each month thereafter for the remaining term of this Agreement.” There is no residency requirement in the contract.

Stewart’s Chief of Staff Elliott Jacobson, who many say is actually running the day-to-day operations of the DOI, described how Kinion’s $16,000 per month salary compares to actual state employees.

In an e-mail sent May 4, 2009, Jacobson tells Kinion, “If we subtracted what estimated annual expenses would be, as well as subtracting an estimate of the cost of the benefit package an employee receives from your fee, it would bring us to a figure that favorably compares with the Deputy Commissioner’s salary, plus the benefit package, plus expenses.”

Kinion did not respond to calls, e-mails or personal visits made by CRI to the Captive Bureau seeking comment for this story.

Ianni

Stewart’s pick for the Captive Bureau’s Director of Strategic Development, Wilmington attorney Edmond M. Ianni,  also did not respond to calls, e-mails or personal visits made by CRI to the Captive Bureau seeking comment for this story.

Stewart sent an e-mail May 11, 2009 to Ann Visalli, director of the Office of Management and Budget, seeking OMB’s approval of Ianni’s $16,000-per-month contract. The insurance commissioner described Ianni as a “nationally recognized authority on the ‘Delaware advantages,’” who had already begun working at the department, and who could provide “critical services to me and the Insurance Department.”

“All of this will result in generating revenue for Delaware and retaining and creating jobs here in our First State,” Stewart wrote. “This agreement (which does not include the provision of legal services) is consistent with existing OMB-approved agreements that the Insurance Department currently has with others serving our Department.”

Ianni began billing the DOI before OMB had even approved his contract.

In an e-mail sent to Stewart on June 13, 2009, he attached an invoice for June, and complained that his payment for May was late.

“How can you bill me for June before the month has ended?” Stewart wrote in her reply. “The State still has not approved the contract. Stop dunning me. I have been trying everything to get the Department’s contracts approved.”

Visalli did not respond to interview requests for this story.

Lopez

Mary Jo Lopez began working as the Captive Bureau’s Director of Business Development in February 2009, after Stewart signed off on the contract with her newly-created New Jersey-based corporation, Affinitee Group, LLC.

According to the contract, which was obtained by the Caesar Rodney Institute through a FOIA request, Affinitee Group, LLC was chosen to provide “business development and marketing services for State of Delaware, Department of Insurance, Captive Insurance Program.”

In her July 2009 press release that announced the formation of the Captive Bureau, Stewart said Lopez was the “founder” of Affinitee, which she described as “an insurance management consulting firm.”

Affinitee, however, has no working Web site, no client list, a minimal Internet presence and appears to consist of just Lopez.

According to the New Jersey Secretary of State’s Office, Lopez created Affinitee Group, LLC in November 2007. Lopez is the only officer, director or board member listed on the business entity status report.

Affinitee’s phone number is answered by a machine, in which a recorded voice states: “This is Mary Jo Lopez.” There is no mention of Affinitee Group, LLC in the recording.

According to the contract, Lopez/Affinitee can work from home or the Delaware office, and the state will pay her travel costs, which amounted to nearly $5,000 for just three months of 2009.

Despite her title of Director of Business Development and hefty $120,000 annual salary, e-mail correspondence obtained through FOIA indicates that Lopez acts more like Stewart’s personal assistant, arranging meetings, planning travel needs and sending thank-you notes.

An unannounced visit

Rather than housing the Captive Bureau in DOI’s offices in Dover or Wilmington, the bureau is housed in a $4,000-per-month suite on the sixth floor of the One Custom’s House building, located on King Street in Wilmington, across the hall from KISS 101.7 FM.

There are no other DOI offices in the building.

Insurance department insiders say the bureau was moved to an offsite to cut down on scrutiny.

The Caesar Rodney Institute visited the bureau last month.

The Captive Bureau is not marked or identified as a state office. It’s only identified by a “602” on the door, in self-adhesive mailbox numbers.

Neither Kinion nor Ianni or Lopez were present.

None of their offices were labeled. There were no names on desks or doors. Their offices had no pictures, photos or bric-a-brac on the walls or desks. One office had cardboard boxes piled where a visitor would sit. It appeared as though they weren’t being used.

The entire suite has a temporary, just-moved-in feel.

When asked whether Kinion was in the suite, a staffer who asked not to be identified said he may arrive later in the week.

“He commutes,” she said. “He doesn’t get reimbursed for travel.”

Lopez, she said, was absent because the electricity was out at her New Jersey home.

She did not know Ianni’s whereabouts.

“They haven’t been here for March or February because of the snow,” she said. “March and February were pretty bad.”

Kinion, Ianni and Lopez received a combined total of $84,000 taxpayer dollars for March and February.

Where’s the money going?

Of all the state insurance departments in the country, the Delaware Department of Insurance, at $25 million, has the 14th largest budget, according to the most recent data available from the National Association of Insurance Commissioners (NIAC).

Delaware DOI’s budget is greater even than Pennsylvania’s, whose insurance office operates on $23.5 million, even though they bring in nearly eight-times more revenue than Delaware, and have nearly four-times as many employees: 303 compared to the 81 employees working for Stewart.

Delaware’s insurance department is also the least efficient office in the region. Employee efficiency ratios show that Pennsylvania, Maryland, New Jersey and Virginia all produce more revenue for their states, per employee. In addition, Delaware spends more money to collect its revenue dollars when compared to the surrounding states.

A history of not commenting

None of the current or former DOI staffers interviewed by the Caesar Rodney Institute for this special report were willing to allow their names to be used in this story.

Many former DOI employees are still involved with the insurance industry, and are concerned their current employers would suffer if they spoke on-the-record. They said their firms could be banned from the state’s lucrative insurance market.

Current DOI staffers say they’d be fired for speaking publically about the department’s failings.

Commissioner Stewart was not willing to be interviewed for this special report.

Instead of the standard, face-to-face interview sought by the Caesar Rodney Institute, Stewart and her Chief of Staff Jacobson insisted they would only respond to questions submitted in writing.

“I need a list of questions, so that I can have the information available to answer any question(s). We do that with every reported (sic) and/or individual,” Stewart wrote in an e-mail.

“It is the policy and practice of the Commissioner of Insurance and the Department of Insurance to respond to all proper and legitimate inquiries from news organizations and other parties concerning matters affecting the Department and Delaware’s citizens,” Jacobson wrote in an e-mail sent March 12.

The Caesar Rodney Institute explained that it resists submitting written questions because often they are answered by a team of lawyers and spokespersons, rather than the elected official. Also, requiring written questions prohibits follow-up questions.

The Caesar Rodney Institute told Jacobson its reporting had uncovered issues Stewart would undoubtedly want to address.

“What are those issues?” Jacobson wrote. “Perhaps we can negotiate an arrangement. The Commissioner will be away until next Wednesday so I propose in the meantime we try to come to some kind of an agreement.”

Jacobson never explained what the “arrangement” entailed.

Stewart’s e-mails indicate it is highly unlikely the commissioner would ever personally answer any written questions submitted by the Caesar Rodney Institute or anyone else.

Instead, Stewart relies on a team for guidance on dealing with the media, and for damage control, which includes Jacobson, various DOI staffers and Wilmington blogger Nancy Willing.

One e-mail Jacobson sent to Stewart in March 2009, indicates he and the DOI’s chief insurance examiner spent two days “putting together talking points” for the commissioner, prior to a phone call from a newspaper reporter seeking quotes for a daily story.

In an e-mail Willing sent to Stewart and Jacobson in March 2009, the blogger points out a story discussed on WDEL’s Rick Jensen Show was picked up by local blogs.

“Karen, if you or Elliott have a public statement, you might give it to me. Not answering the phone for the WNJ reporter wasn’t so great,” Willing wrote. “Would you like to provide commentary for the public consumption, or do you want the public to assume that what the radio and press are saying to be the last word.”

Two days later, in an e-mail titled “This is a disaster and it doesn’t have to be,” Willing expressed her disappointment with the response Jacobson had posted on the local blog.

“This was poorly played and will haunt you,” Willing wrote.

Use of outside experts

On July 17, 2008 the New York-based law firm of Stroock & Stroock & Lavan, LLP donated $1,000 to Stewart’s election campaign.

On Sept. 15, 2008, two partners from the law firm each donated $1,200 to Stewart’s campaign.

Two weeks later, the firm gave her an additional $1,200.

A month later, another Stroock employee made a $250 campaign donation.

Why would a New York-based law firm donate to a relatively unknown candidate running for insurance commissioner in Delaware?

According to the Delaware State checkbook, an online listing of payments made by the DOI and every other state agency, Stroock & Stroock & Lavan, LLP became one of a large and growing list of out-of-state law firms and consultants who began receiving millions of Delaware taxpayer dollars after Stewart was elected – money that could have gone into the state’s General Fund.

In June 2009, Stroock received five checks from the DOI, totaling more than $45,000, for “consulting.” By the end of the year, they’d been paid an additional $20,000.

The Caesar Rodney Institute obtained a copy of Stroock’s contract with the DOI, which is valid for three years.

According to the contract, the New York-based firm agrees to “serve as Expert Legal Consultant and perform such consultancy duties as assigned by the state.”

Two of the firm’s attorneys were chosen for the project. One bills the DOI at $712 per hour, and the other receives $399 per hour, but these totals pale when compared to the taxpayer dollars paid to other firms.

Regulatory Insurance Services and it’s sister firm INS Consultants Inc. receive millions of dollars from the DOI.

According to its Web site, four of Regulatory Insurance Services’ five “principals” have previously worked at the DOI, including John Tinsley, who Stewart named as “Special Deputy for Examinations” of the Captive Bureau.

Regulatory Insurance Services conducts financial examinations for the DOI. It’s not known what type of consulting services its sister firm provides to the department. The two firms use the same address.

From the start of FY-09 through the first two quarters of FY-10, Regulatory Insurance Services received $19 million – an average of more than $1 million per month.

INS Consultants Inc. was paid more than $1.2 million over the same time period.

Apparently someone within the DOI noticed the large amount of money being funneled regularly to these two firms.

An e-mail sent between DOI staffers in March 2009, which was copied to the commissioner and Jacobson, titled “INS Aging reports as of 3/20/09” asks: “Why are the 90 day and over receivables so high, over $72,000?”

It is not known what actions were taken. No response to the e-mail was provided to the Caesar Rodney Institute as part of its FOIA request.

Alan Shaw, president of Regulatory Insurance Services, did not return calls seeking comment for this story.

In addition to consultants and accountants, the DOI pays million of dollars to outside law firms. Like Stroock & Stroock & Lavan, many are located out of state.

The DOI itself is having difficulty tracking all the contracts it has given to these out-of-state lawyers. Stewart’s e-mails contain dozens of references to problems locating these contracts within the agency.

Violating state law

Title 29, Chapter 100 of the Delaware Code spells out the state’s Freedom of Information Act.

“It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic,” the Act states.

The FOIA law codifies what type of documents are public records – obtainable under the act – and what type of records are not public, and therefore not subject to FOIA.

These exceptions to FOIA include: trade secrets, labor negotiations or collective bargaining, personnel files, medical files, criminal files or intelligence files compiled for law-enforcement purposes.

The list of exceptions does not include personal communications, if made on the state’s e-mail system, messages that may be embarrassing to an elected official, or documents the official simply doesn’t want someone to have.

The Delaware Department of Insurance is violating the state’s Freedom of Information Act.

On July 14, 2009 the Caesar Rodney Institute submitted a FOIA request to Stewart for “copies of all e-mails sent or received from your state electronic mail account.”

Jacobson immediately wanted to know why CRI wanted the e-mails, and who was talking.

“May I ask, in the interest of FOIA, what inspired these requests?” he stated in an e-mail.

Jacobson was told that state law does not require the public to provide the inspiration behind a FOIA request.

“You are quite right,” Jacobson said in his reply. “The law does not ‘require’ you to provide the ‘inspiration’ behind a FOIA request. However, it also does not ‘prohibit’ you from providing the ‘inspiration.’ More to the point, this request comes out of the blue for God knows what reason. Therefore in the interest of transparency, elementary fairness and ethical journalism it would not prejudice your ‘sources’ to voluntarily answer the questions ‘Why?’ and  ‘Why Now?’”

Jacobson was told that the Caesar Rodney Institute never reveals confidential sources, and that when elected officials seek to identify these sources, it produces a chilling effect on the First Amendment.

“I did not mean to suggest I was inquiring about your sources,” Jacobson replied. “I tried to make the point of mentioning that I did not want to ‘prejudice (i.e. not revealing) your sources.’ I made this inquiry on my own. The Commissioner most certainly did not order me to investigate your actions.”

The DOI started to process the request.

The Caesar Rodney Institute paid the Delaware Department of Technology and Information to retrieve the commissioner’s e-mails from the state’s computer system.

In November, Elayne Starkey, DTI’s chief security officer, said the email archive search resulted in 3,641 emails.

Starkey then gave all 3,641 e-mails to Stewart and Jacobson, along with their in-house counsel, Deputy Attorney General Julie “Jo” Donoghue, so they could review them before turning them over to the Caesar Rodney Institute.

During one phone conversation, Jacobson said he’d be withholding all of the “personal” e-mails sent or received by his boss.

During the review process, Deputy Attorney General Donoghue abruptly quit the DOI. Her reasons for leaving are not known. She was not willing to be interviewed for this story.

The Caesar Rodney Institute was forced to retain an attorney who threatened to sue the DOI unless they responded to the institute’s FOIA request.

After receiving the attorney’s letter, Jacobson began turning over the e-mails, in batches, one or two CDs at a time.

Even though DTI located more than 3,600 e-mails, the Caesar Rodney Institute has only received 1,500, and of the ones furnished, many are heavily redacted with a black marker.

CRI has posted some of Commissioner Stewart’s e-mails on its Web site. The e-mails can be accessed here.

A car of her own

Commissioner Stewart did not own a car when she was elected. After taking office, she used a state-owned vehicle as if it was her own – during the workweek, on weekends and on holidays.

The Caesar Rodney Institute submitted a FOIA request for the Global Positioning Satellite (GPS) data for her Dodge Avenger.

The data, which can be seen here, shows that Stewart took the car to and from work, on shopping trips, to hair salons, restaurants and night clubs, at all hours – often at excessive rates of speed.

This personal use of a state vehicle came after the February 2009 order from Markell, which required a “zero-based approach with respect to the use of the state fleet vehicles and take-home privileges. In other words, the use of all fleet vehicles will need to be justified. Previous use will not be viewed as sufficient justification to keep a car.”

Unprecedented travel

According to several DOI staffers, during the 15 months she’s been commissioner, Stewart has traveled out of state twice as much as any previous commissioners did during their entire four-year term.

Often accompanied by a retinue of staff, the commissioner has visited San Diego, San Francisco, Minneapolis, Chicago, Scottsdale, Arizona and other cities, along with frequent trips to New York City and Washington, D.C.

Last week, Stewart took a dozen DOI staffers with her to Denver, including the newly-hired Deputy Attorney General who replaced Donoghue.

Several of the trips have been to lawyers’ offices for “Meet and Greets,” where the commissioner and her staff have presented what they call the “Captive Road Show.”

The department’s frequent flying has been noticed by other state agencies.

Lt. Gov. Matt Denn served as Insurance Commissioner before he ran for the state’s second-highest elected office. Stewart succeeded him as commissioner.

Denn and Stewart have sparred, via e-mail, over files she claims are missing from the department.

“Thank you for your March 10, 2009 letter,” Denn wrote in an e-mail reply. “I tried to contact you earlier but was told that you were staying in San Diego with your senior staff.”

In February 2009, Delaware Gov. Jack Markell slashed $28.7 million from the FY-09 budget shortfall partially by trying to reduce out of state travel by state employees.

Markell instructed the Office of Management and Budget to cut costs by curbing trips they considered non-essential.

His order produced a harsh memo to the DOI from OMB director Visalli, which was not provided to CRI as part of its FOIA request.

Some of the DOI staff questioned whether they should follow OMB’s directive, or whether they should continue to travel to out of town meetings as directed by Stewart and Jacobson.

Jacobson, in an e-mail, told one of these worried staffers that Stewart had spoken to Visalli, who gave the DOI “quite a bit of leeway” to attend the meetings.

As to how often the DOI staffers were traveling out of town, Jacobson wrote “every employee that travels to these meetings sacrifices a month of weekends a year. They deserve our gratitude.”

Caesar Rodney Institute research fellows Sara Clark and Danny Russell contributed to this report.

Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright March 30, 2010 by the Caesar Rodney Institute

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CRI has learned from several subscribers and supporters that they have contacted the Attorney General Beau Biden’s Office, seeking answers to questions posed in a story CRI published yesterday.

The story revealed how Biden chose three $500-per-hour attorneys from a well-connected private law firm to defend the Delaware Psychiatric Center (DPC) and DPC officials against a whistleblower lawsuit, rather than assigning the case to a deputy attorney general already on the state’s payroll. One of the private attorneys, Joseph C. Schoell, served as Gov. Ruth Ann Minner’s chief legal counsel. Biden’s decisions could cost taxpayers more in legal fees than the $1 million in damages demanded by the lawsuit.

Those who have called the AG’s Office (302-577-8500 or 302-577-8400) to complain or inquire about Biden’s decision, CRI has learned, have been questioned about how they learned of the case. They’ve also been told someone from the office would call them back to explain in detail what occurred. However, no one from the AG’s office has called them back.

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Experts say the legal fees could cost Delaware taxpayers considerably more than the $1 million demanded in the lawsuit.

By Lee Williams

Attorney General Beau Biden chose a well-connected law firm to defend the Delaware Psychiatric Center (DPC) and several DPC officials against a whistleblower lawsuit brought by the facility’s former Director of Nursing.

Biden could have assigned the case to a deputy attorney general – who are already on the state payroll – instead of using additional taxpayer dollars to pay for a team of private attorneys.

Gloria Harrison, Ph.D., filed suit against the trouble-plagued facility in June 2008, claiming former DPC Director Susan Watson Robinson and former Division of Substance Abuse and Mental Health Director Renata Henry retaliated against her, after she blew the whistle on patient abuse witnessed by one of her nurses.

The suit claims the retaliation violated federal and state law, including the Delaware Whistleblowers’ Protection Act and the Family and Medical Leave Act (FMLA), which she alleges was misused as a tool to aid in her removal. She is asking for $1 million in compensatory and punitive damages.

Harrison alleges the retaliation began after she questioned the adequacy of an internal, DPC investigation into patient abuse that occurred in November 2006, which one of her nurses described as “the worse incident of patient abuse she had witnessed in over 20 years as a nurse.”

Wilmington attorney Jack Shrum represents Harrison. He was surprised Biden chose a private law firm to defend the state – Drinker Biddle & Reath LLP – who assigned three well-compensated attorneys and their support staff to the case.

“I’ve dealt with DPC on other matters,” Shrum told the Caesar Rodney Institute. “For matters going to court, they’ve always used Deputy Attorneys General. In my cases, they’ve never hired outside counsel.”

Shrum and others said historically, the Attorney General’s Office usually retains outside counsel only when a case calls for specialized expertise, such as asbestos or DNA-related evidence.

“This is a garden-variety FMLA case,” Shrum said. “This is what they see all the time –employment law.”

Even more curious to Shrum and other legal observers is that as the case has progressed, the defense managed to get DPC and the Department of Health and Social Services dropped from the suit. In addition, the court dismissed claims stemming from actions made by Henry and Robinson in their official capacity. Henry and Robinson remain defendants only for actions that occurred in their individual capacity – a situation that usually requires a state employee to pay for their own attorney, instead of receiving a taxpayer-subsidized team of lawyers.

“I have never seen this before,” Shrum said. “The state is paying Drinker Biddle & Reath to represent Renata Henry and Susan Robinson in their individual capacity, on the state’s dime.”

Shrum estimates the three private attorneys bill the state an average rate of $500 per hour or more.

He and others estimate the state could end up paying more in legal fees than the $1 million in damages Harrison has demanded in the suit.

“[The legal fees] could easily approach $1 million, but they’re not there yet,” he said. “I would be very surprised if they haven’t already reached $200,000 to $250,000.”

The Caesar Rodney Institute has submitted a Freedom of Information Act (FOIA) request for legal fees associated with this case to the Attorney General’s Office.

One of the Drinker Biddle & Reath team members is Joseph C. Schoell, who was former-Gov. Ruth Ann Minner’s chief legal counsel.

Shrum believes this connection could be the reason Biden chose the firm.

Biden was not willing to be interviewed for this story.

The meter on the defense team is still running. The three attorneys are looking for any dirt they can find on Harrison.

So far, they’ve subpoenaed or deposed her current employer, a former prospective employer in Virginia, two college professors and two college advisors.

“I don’t know why. Neither was involved in the case,” Shrum said. “They were scared to death.”

Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright Jan.4, 2010 by the Caesar Rodney Institute

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As part of its government watchdog role, the Caesar Rodney Institute submitted a Freedom of Information Act (FOIA) request to the Delaware Board of Medical Practice — a division of the Department of State responsible for licensing physicians.

The FOIA request sought any prior complaints against Dr. Earl Bradley, the Lewes pediatrician charged with raping nine children.

Given the large victim pool and history of alleged abuse, CRI wanted to ensure the state had not overlooked or failed to investigate any previous complaints.

In their reponse, the Board of Medical Practice claims that no one had made any complaints against Bradley until this month.

The Board’s e-mail follows:

This is in response to your FOIA request for complaint information concerning Dr. Earl Bradley.

Investigative files, including complaint information, are exempt from FOIA and are not deemed public pursuant to 29 Del C., §10002(g)(3).  However, there are no documents responsive to your request, with the exception of the complaint and motion for temporary suspension which was filed by the Department of Justice on 12/23/2009.

Thank you for the opportunity to respond to your request.

Regards,

Kay Warren
Deputy Director
Delaware Department of State
Division of Professional Regulation

Phone: (302) 744-4503
Fax: (302) 739-2711

“Delivering Innovative and Responsive Services Through Individual & Team Initiative, Creativity and Leadership.”

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There is legislation being passed around the General Assembly to improve Delaware’s FOIA law. The unnumbered legislation is sponsored by State Senator Dave Sokola (D-Newark) and State Representative Brad Bennett (D-Dover).

They synopsis of the bill states,

This bill enhances Delaware’s Freedom of Information Act by setting a deadline when public bodies must respond to a Freedom of Information Request.  Additionally, it provides that suits brought pursuant to the Freedom of Information Act shall be heard on an expedited basis. Lastly, it provides that a citizen is entitled to costs and attorney’s fees if a citizen brings a lawsuit against a public body pursuant to the Freedom of Information Act and is successful.

Specifically, the bill would require a response to FOIA requests within ten business days. The response would have to be one of two options:  1)grant access to such public record or 2)deny access to such public record.

The bill allows for an extension of the ten day requirement  if “a request is for voluminous records, requires legal advice or a public record is in storage or archived.  In any of these cases, the requestor shall be advised by the custodian of record within 10 business days after the custodian of record receives the request stating the need for additional time.  Such additional time provided for in this subsection shall be reasonable.”

Currently there is not statutory requirement for fulfilling FOIA requests.  A 1991 Delaware Attorney General’s opinion stated that even though there is no specific requirement for responding to FOIA requests, agencies “should, within ten (10) days after receipt of a definitive request, issue a written determination to the requestor stating which of the requested records will, and which will not, be released and the reasons for any denial of a request. If the records are not known to exist or are not in the [agency’s] possession, the requestor should be so informed.”

Codifing the ten day requirement is the right thing to do, especially if the new ten day window does mean that the window is for either providing the information or denying the request. If the ten days is simply codifing that there are ten days for the response informing the requestor that the information will be made available, then there really isn’t any difference from the AG’s opinion.

The caveat permitting government entities more time does leave some loop holes in which the government agencies can delay response. Who is to say if a request is for voluminous records? Who is to say if the request requires legal advice? Clearly, the ability of an agency to say they need legal advice is a cloudy criterion and could be an oft-used crutch to delay responses to FOIA requests.

There is a history of delaying response to FOIA requests in Delaware. While some requests are completed in a timely fashion, others linger for weeks and months.

The Caesar Rodney Institute has issued numerous FOIA requests in 2009, some taking months to complete, and others remain unfulfilled. There are no doubt other FOIA requests issued by members of the public that have taken far too long to complete.

The benefit of a Freedom of Information Act is greatly diminished if the information being requested is not provided in a timely manner. My guess is that government agencies in some cases hope the inquiring citizen loses interest in a request and will not follow up after repeated foot-dragging.

Experiencing a delayed response is not something that only happens to Joe Citizen. State Representative Greg Lavelle waited over four weeks for response to a FOIA request he issued pertaining to Vince Meconi’s status as a state employee. Only after Lavelle created a website, Delaware FOIA Watch, and applied public pressure was the request fulfilled.

UPDATE:  A revised version of the bill has removed the enforcement provisions that had been in the earlier draft.

The earlier draft had included the following:

Section 2. Amend §10005(d), Title 29 of the Delaware Code by deleting the word “may” as it appears  after the word  “court” and before the word “award” in the second sentence of subsection (d) and inserting in lieu thereof the word “shall”.

Section 3. Amend §10005, Title 29 of the Delaware Code by adding a new subsection (g) to read as follows:

“ All suits brought pursuant to the section shall be heard  by the court on an expedited basis.”

In the most recent draft, sections 2 and 3 have been removed.

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A quick time out from policy for a moment…

The Caesar Rodney Institute has submitted numerous freedom of information act requests to the state and the Markell administration. They have provided the information in a very timely fashion and responded with comprehensive documents per the various requests. The administration is living up to its promises of transparency…and for that the Governor and his administration should be commended.

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Following the 2009 legislative session, the Caesar Rodney Institute submitted a Freedom of Information Act request to Governor Markell’s office requesting an update and any results of the Governor’s performance audits, which the Governor has cited in recent days and weeks. CRI delayed its request until after the last minute deal-making of the session had come to an end. The request was sent to Markell’s chief of staff Thomas McGonigle both in email and in hard copy form. Sadly, over ten days have gone by and Mr. McGonigle has not even acknowledged receipt of the FOIA. This week, CRI re-submitted the request, again with no response. Follow up phone messages to Mr. McGonigle also went un-returned.

The lack of response to these requests for an update on the progress/status of the performance audits are troubling at best. Since the end of the legislative session, Governor Markell has announced plans to eliminate the Department of Finance by merging its duties and employees into other government agencies. It is likely that this move was made because something indicated to the Governor and his team that such a move would help right-size state government in light of the ongoing economic dilemma and the expected worsening of the state’s fiscal troubles in coming years. Knowing where the performance audits stand and more importantly, implementing the recommendations are key to getting Delaware on the right track. Whats more, the sooner the findings are released to the public, the sooner Delawareans can provide input and feedback on any proposed changes.

The non-response from the Governor’s office may indicate that either the audits are not ongoing or that he is unwilling to share this information.

The audits are a much needed undertaking for the state and the Caesar Rodney Institute is very much interested in the Governor’s findings. We want to see where cost savings can be made beyond the elimination of the Department of Finance. The sooner the results of the audits are made public, the sooner the public can examine them and weigh in. We eagerly await the administration’s honoring of our FOIA request so that the public at large can continue to assist the Governor through this time of remarkable change.

UPDATE, July 16, 2009

Today, CRI received an email from the Governor’s office acknowledging receipt of the above mentioned FOIA request (13 working days following the initial email request). They are reviewing the request and will be back in touch.

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