Archive for the ‘Open Government’ Category

2013 is already upon us, and three days in things are headed downhill. Congress just passed a bill to respond to the so-called “fiscal cliff” by increasing EVERYONE’S taxes at least a little bit, and a lot if you have a high income (note: if your money comes from investments and assets, such as Warren Buffett, your taxes will be unchanged). More battles will come up on the debt ceiling, automatic defense cuts, and future budget deals (if any come), and no doubt the partisanship will continue.

Delaware has its own problems to deal with: unfunded pension liabilities, out of control Medicaid spending, bad deals with Fisker and Bloom Energy, education performances moving sideways and not up, and taxes such as the gross receipts taxes which harm business growth. These are just a sample of the issues facing the state. While CRI would like to resolve every major issue within the state, that is not very likely.

Therefore CRI will spend 2013 focusing on three elements: improving education standards, discouraging corporate subsidies, and preventing the state from passing any legislation which pushes single-payer healthcare by abolishing private healthcare insurance.

Education reform will be CRI’s top priority in 2013. There is general consensus that the education system as currently structured is not serving the students well, particularly those in areas like Wilmington and Dover, where parents usually do not have the  financial means to send their children off to private schools, and who cannot be guaranteed a slot in the charter schools due to bureaucratic processes. CRI is calling for legislative actions to allow the money to “follow the student”, where parents have options such as Education Savings Accounts (ESA) that give parents the financial opportunity to choose where they want to educate their child. We hope to inform and engage the public and the legislators into some serious action this year that will give students a big victory for their future.

Our second goal is to reduce, if not eliminate, subsidies for preferred businesses and special interest friends of the government. Bloom Energy and Fisker Automotive are two prime examples of the government handing over “subsidies” for “investment” in these companies, meaning hundreds of millions in tax dollars to give to these companies, money we will in reality never receive payback for. There is no industry in Delaware receiving taxpayer money that can be said to be worth the corporate welfare. Our aim is to educate the public and legislators, and push Delaware to either reduce/eliminate current government subsidies to preferred parties, or else to agree to prohibit future government subsidies via “corporate welfare”.

Our third goal will be to discourage the Legislature from passing any bill which bans private health insurance in favor of “single payer” government. While CRI acknowledges the issues in containing healthcare costs, such as Tort reform, allowing insurance to be purchased across state lines, and using means-tested methods to determine who qualifies for Medicare or Medicaid as opposed to just handing it out to anyone who asks, there is no way the government can raise all the taxes needed to pay for this without destroying job opportunities or sending them out of state. Plus, the government will not be able to manage the insurance aspects of healthcare policy without setting up a massive, inefficient bureaucracy, just like they do with everything else.

What do you think? Are there any goals CRI should work for that are no mentioned above?

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John Nichols, the plaintiff involved in the suit against Governor Markell and five members of the Public Service Commission, has filed a suit in New Castle County Superior Court against the Coastal Zone Industrial Control Board (CZICB). This is in direct challenge to the CZICB’s rejection of John’s allowance for standing in the case. The board ruled 4-3 around 10:30 AM on June 13th that John had standing, but at 4 pm on the same day voted 5-0 with 2 abstentions to say John didn’t have standing after all. The debate centers on whether John can be considered an “aggrieved” person since Bloom’s “energy servers” have not actually been built yet. John’s argument is that since these boxes, based on studies and evidence presented at the hearing, WOULD harm the environment and Delmarva Power ratepayers, he will be directly harmed by the CZICB’s decision to deny him standing. If the Superior Court finds in John’s favor, the CZICB would be required to go back and review the case based on the science of the “energy servers”, and John would be considered to be an aggrieved individual in this case.

A copy of the complaint:





V. CA. N0. N12A-07-







Appellant John A. Nichols (“Niohols”) hereby takes appeal pursuant to  Del. C. § 7008

and Superior Court Civil Rule 72 from the decision announced by the State Coastal Zone

Industrial Control Board (“B0ard”) on Wednesday, June 13, 2012 which denied him standing to

pursue an appeal of the grant of a permit application to Diamond State Generation Partners, LLC

by the Delaware Department of Natural Resources And Environmental Control on the grounds

that the evidence in the record established Nichols possessed standing under the broad “any

aggrieved person” statutory scope of 7 Def. C. § 7007(b).


Attorneys for Appellant John A. Nichols
Dated: July 2, 2012

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DOVER, DE – Cause of Action, a Washington D.C.-based legal advocacy group, has filed suit today in US Federal Court, District of Delaware, against Governor Jack Markell and five members of the Delaware Public Service Commission.

The Caesar Rodney Institute (CRI), a Delaware-based non-partisan think tank, has challenged the merits of utilizing high-cost Solid Oxide Fuel Cells to produce electrical power for sale to ratepayers of Delmarva Power, Delaware’s largest energy utility provider.  CRI was the sole entity opposing the contract between Delmarva Power and Bloom Energy at the Delaware Public Service rate hearings in October of 2011, on the basis the economic impact on Delaware’s economy would be negative because of the contract.  CRI has been concerned about the constitutionality of the contract from the very beginning.

Since CRI and John Nichols, a citizen activist, were not able to convince the Public Service Commission to change its views on either the economic or environmental impact of the permit application, Mr. Nichols decided to take his case to the Coastal Zone Industrial Control Board.  He challenged the permit application on whether Bloom Energy had the right to build its Solid Oxide Fuel Cell technology in lands that were considered protected for wildlife. CRI funded expert testimony as part of Mr. Nichols’ motion to appear the permit decision.

The Board voted to deny Mr. Nichols standing at the hearing, which allowed Bloom Energy to proceed with installation of its Solid Oxide Fuel Cell units in the Coastal Zone.  Mr. Nichols opted to file a lawsuit against Governor Markell and five members of the Public Service Commission, using information CRI provided during testimony.  He was joined by Fuel Cell Energy, Inc., a company which makes fuel cells, and which feels it was denied the opportunity to do business in Delaware because of the government’s decision to not open the bidding process to outside companies.

Caesar Rodney Institute 

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Say you’re a Delmarva Power customer-chances are, you are-and you’re annoyed energy costs are going up-which they are-then you will be pleased to know you are going to be paying a tad bit extra for the privilege of utilities.

The News Journal is reporting that Delmarva Power customers should expect a 67-cent surcharge on their utility bills.  It will be 61 cents in July, according to the article. The goal is to collect nearly $446,000 in July and $505,000 in August to fund the building of a Bloom Energy generating station in Newark this year, and then they will collect more money for a station in New Castle next year.

William Nelson, an analyst with the Bloomberg New Energy Finance, says Bloom’s contract with Delmarva and the state already has Delmarva customers paying about a third more than they otherwise would to satisfy Delmarva’s renewable purchase requirements.

We have written extensively at CRI about Bloom’s Fuel Cell technology. We have warned Delawareans and politicians in Dover that the Solid Oxide Fuel Cell technology Bloom is pushing on the state is A) more expensive than they are claiming, and B) Not as green as they claim it is. You can read a blog post from Lindsay Leveen on this Bloom problem here:


Leveen is no fool when it comes to environmental policy. He has an M.S. in Chemical Engineering from Iowa State University, and he has testified in front of the US Senate as an expert on fuel cells before.  His bio is here: http://bit.ly/L0wBKP.

We at CRI want to make it clear we are not opposed to renewable energy, as some of our detractors claim. In fact, we are unequivocally for clean, affordable technology that reduces dependance on foreign energy and can keep our environment clean to boot. We are opposed to government subsidies of this technology in place of the private sector’s research and development, especially when we can prove this Fuel Cell technology IS NOT EFFICIENT, and is also more expensive.

The fact that Bloom’s technology is not going to work as they claim is of no concern to them, and apparently it is of no concern to the state government. Rather, they rely on “feeling good” about “caring” for the environment, and in their world, the ends justify the means. Simply put, as long as their intentions are righteous and for all that is good, whether or not the fuel cells will actually cause more pollution (884 pounds of Co2 per fuel cell per megawatt hour), or will raise the price of energy on poor and middle-class Delawareans is of no concern to them. Bear in mind the biggest advocates for this technology without a public hearing of its efficiency,cleanliness and/or value to the state are often upper-middle class and upper-class folks whose good intentions are more important than the actual truth of the matter. If they have to pay a little extra in taxes for “clean” air, so be it. If you can’t afford it? Well, they just want what’s best for everybody.

Read the original article: http://www.delawareonline.com/apps/pbcs.dll/article?AID=2012305310022&nclick_check=1

Read about our energy policy here: http://caesarrodney.org/index.cfm?ref=30100&ref3=11

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Earlier this week, Lee Williams posted on this blog a story about Attorney General Beau Biden’s selection of a politically-connected law firm to defend the DPC and DPC officials in a whistel-blower lawsuit.

One of the key issues raised in the post is the efficacy of hiring a private firm to do what existing state employees can already do without the added expense of bringing in more expensive lawyers.

The question is not new. In 2008, House Bill 488 was introduced and passed by the Delaware House of Representatives (albeit on a straight party-line vote). The bill would have, “prohibited the employment of private attorneys by State offices, departments, agencies, commissions or instrumentalities without the unanimous consent of the Attorney General, Governor, Chair and Vice Chair of the Joint Finance Committee.”

The bill never came up for a vote in the Senate.

With the legislature returning to session next week, it may be a good time for lawmakers to reconsider this legislation.

This is not to say that private attorneys should never be considered – HB 488 itself wouldn’t have banned the practice. However, the measure would have introduced a degree of accountability into the process when such attorneys are contracted by the state. If bringing in outside counsel has merit, only four people would need approve:  the AG, the Governor, and the Chair and Vice Chair of the JFC. Sounds simple enough.

With budget cuts, furloughs, pay decreases, etc…a simple additional step to increase accountability is almost a no brainer, especially when the legislation doesn’t bar the practice in question…it simply adds a level of discretion and discipline in the decision making process.

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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.


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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It is easy for Americans to lose faith in their elected officials. The constant stream of stories of abuse of power, breaking of the public trust and seemingly backwards priorities fuels the nation’s perception of lawmakers.

Certainly, there are many cases in which we should all be skeptical of those we elect to office – or at least, those elected by others. We all know that those we vote into office are not the problem. Right?

This shouldn’t be the case. Elected officials, whether in a legislature or the executive branch, should be the type of people that society thinks highly of.

In times when distrust of public officials seems rampant, it is incumbent upon, well, the incumbents to do everything they can to change this perception.

In Delaware, our legislators have been presented with a clear opportunity to help alter the perception of elected officials in Senate Bill 96, a bill sponsored by State Senator George Bunting, a democrat from Bethany Beach.

If passed, Senate Bill 96 “would prohibit any member of the General Assembly from being employed by the State of Delaware while in office, unless the member was already a state employee at the time the member was elected to the General Assembly.”

It has been reported by The News Journal that the bill “would outlaw state employees as legislators.”

This is both misleading and not true.

The bill allows state employees to run for office and, if elected, serve as an elected official while maintaining separate state employment. What the bill seeks to accomplish is to remove the ability of elected officials to use their elected position to obtain a government job.

While the bill was introduced in May, it has not yet received a hearing.

The lack of a hearing has not stopped public conversation concerning the bill. Citing an opinion by Deputy State Solicitor Jennifer D. Oliva, The News Journal reported, “The Delaware Constitution sets forth the qualifications and disqualifications for state legislators. Ordinary public employment is not a disqualification, nor can it be without amending the Constitution.”

To reiterate, the bill is not saying that state employees should not or cannot hold elected office – it simply puts forth the idea that elected officials should be honest brokers of the public good and not use their office to obtain a state job.

If the bill as proposed isn’t enough to change the law, then a constitutional amendment should be pursued. It is that simple. The bill can easily be rewritten as a constitutional amendment, voted on when the legislature returns to session and again the following January at the beginning of the 146th General Assembly. This process is necessary because constitutional amendments must be passed by two consecutive General Assemblies.

Bunting’s effort is not without precedent.

Delaware is one of seven states that permit state legislators to be employed by the state while serving in elected office as long as the legislator is not paid twice for the same work hours.

Two states, Arkansas and Rhode Island, have enacted policies that achieve what Bunting’s legislation seeks to accomplish. Those states allow legislators to be employed at the state or local level as long as said legislator was hired before being elected.

According to the National Conference of State Legislatures (NCSL), four states, Arizona, Louisiana, Ohio and Oregon, “ban all public employment for state legislators except for public school employment.”

California, Connecticut, Georgia, Maryland, Massachusetts, Michigan, Missouri, Pennsylvania and Texas have prohibited members of the legislature from “holding any employment at the state or local level.” In addition, “Alaska and Nebraska ban employment at the state level.”

Twenty states, including Delaware’s neighbor to the north, New Jersey, “place no restrictions on state legislators holding other employment at the state or local level.”

Of Delaware’s 62 state legislators, eight are employed by the state or a political subdivision of the state including Delaware State University and Delaware Technical and Community College.

Critics of a ban on legislators obtaining state jobs claim that the state shouldn’t bar individuals who may be very well qualified for a position from obtaining such a job. This point is moot. Elected officials should be held to the highest of standards. Further, by choosing to run for office, candidates and those who become elected are inherently choosing to make sacrifices – putting the public good before their own self interest.

Protecting the public trust and improving public perception is a small price to pay for those who pursue elected office.

In a time when public confidence in government is low, enacting Senate Bill 96, or a version thereof, is a small, somewhat symbolic step that can and should be taken to show the public that Delaware’s General Assembly wants to restore the public trust in government.

A roadblock such as the requirement of a constitutional amendment should not stop elected officials from doing what is right – especially when there is a clear alternative to accomplishing the goal.

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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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