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Archive for the ‘Open Government’ Category

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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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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Attorney General Beau Biden’s office is going to court to silence one of Delaware’s most-vocal and most-respected prison critics at 10 a.m. Friday in Kent County Superior Court in Dover, in front of the Honorable President Judge James T. Vaughn Jr.

Biden’s office does not want the public viewing video evidence of inmate abuse by staff at the Sussex Correctional Institute – evidence that can be viewed by the public here.

A motion filed last month by Deputy Attorney General Marc P. Niedzielski asks Judge Vaughn to grant a protection order in the case: Kevin Moore v. Sgt. Matthew Long.

Moore, a former inmate at SCI, is suing Long, a correction sergeant, for injuries he alleges were caused by a kick to his ankle.

Moore alleges he entered prison immediately following surgery to his ankle. The video shows Long apparently kicking Moore’s leg – a blow that Moore says further aggravated the injured limb, which required additional surgeries.

Niedzielski’s motion came after he saw the video on the Caesar Rodney Institute’s website as part of its ongoing series “Rogue Force,” which revealed inmate abuse by staff at SCI.

Dover attorney Steven Hampton represents the inmate.

Hampton is one of the few attorneys willing to accept inmate cases, and he has never hesitated to speak out about the shoddy medical care plaguing the state’s prisons.

Tomorrow, Hampton will argue against the state’s motion. He will tell the court why it is important for the public to be informed about the horrific conditions behind the wire that the state would like to conceal.

In his motion, Niedzielski asks the judge to order Hampton to have the Caesar Rodney Institute remove the video, even though Hampton is not affiliated with CRI.

It’s not the first time Biden’s office has attempted to stop Hampton from talking about the horrible conditions within Delaware’s prisons.

Last week, Deputy Attorney General Michael McTaggart tried to silence Hampton by seeking a confidentiality order in a different case, in front of a different judge.

After the Caesar Rodney Institute published a story that revealed McTaggart’s attempt, the AG’s office quickly announced they were withdrawing the motion, which was viewed as an unprecedented legal maneuver for a case of this type.

Hampton believes Niedzielski’s motion is a similar attempt to silence him from criticizing the DOC’s shoddy inmate health care, or the skyrocketing rate inmates are dying from preventable illnesses.

Biden did not immediately return calls seeking comment for this story.

If tomorrow’s hearing is cancelled or continued, the Caesar Rodney Institute will update the public immediately.

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(Editor’s note: this story may also be viewed on CRI’s Special Reports page)


AG’s attempt to stifle Free Speech will only delay needed prison reforms, says family of

inmate who died in state custody of ‘gross medical neglect.’

By Lee Williams

As Attorney General Beau Biden was being welcomed home Wednesday from a one-year tour in Iraq at a ceremony in Dover, his office was busy working damage control, trying to contain the ever-widening prison scandal and silence its critics.

Dover attorney Steve Hampton is one of the few private lawyers willing to take inmate cases, or talk about problems within the state’s prisons.

Hampton has tirelessly striven to educate the public about the Department of Correction’s shoddy medical care, for which Delaware taxpayers spend $39 million per year.

“It’s not only a matter of public policy, it’s a matter of life and death,” he said.

Hampton successfully sued the Department of Correction (DOC) for the death of Anthony Pierce, a 22-year-old inmate at the Sussex Correctional Institution who became known as “the brother with two heads” because of a massive brain tumor growing on his head. The tumor, which went untreated by the prison medical staff, eventually killed Pierce in 2002.

Hampton has shared his expertise in interviews with the Caesar Rodney Institute, The News Journal, as well as local television and radio stations.

Now, Attorney General Biden’s office wants to silence Hampton – through unprecedented legal maneuvering – and contain one of the DOC’s most-respected and most-vocal critics.

“Really, what they are trying to do, they don’t want me talking about this any more,” he said.

Grave public concern

In September 2008, Hampton filed suit against the DOC on behalf of David Kalm, a former inmate of the Sussex Correctional Institution (SCI).

In the complaint, Kalm alleged he was repeatedly assaulted by guards at SCI. During one of the assaults, Kalm claims a guard shoved a nightstick or similar other object, down his throat, causing tears in his trachea.

Hampton deposed several guards as part of the Kalm case. The depositions were recorded and transcribed.

Hampton questioned the guards about the alleged assaults, but also about their training. Their answers revealed that the DOC is breaking its promise to the federal government, in which it agreed to provide specific training to the guard force, as part of the federal Memorandum of Agreement between the DOC and the U.S. Department of Justice. The DOC chose to sign the agreement in 2005 rather than risk litigation in federal court, after Justice Department investigators determined poor medical care in Delaware’s prisons was violating the inmates’ civil rights.

The Caesar Rodney Institute used several depositions from the Kalm case in preparing its recent special report “Rogue Force,” after Gov. Jack Markell and Correction Commissioner Carl Danberg refused to comment.

The series revealed ongoing problems with prison medical care, and physical abuse by a handful of guards at SCI – problems that were exacerbated by the DOC’s poor training.

The series also quoted Hampton.

“There is an abusive atmosphere at SCI that permeates the whole place,” Hampton told the Caesar Rodney Institute for the series. “They have a hands-off attitude about the number of use-of-force incidents. It just isn’t important to them.”

Deputy Attorney General Michael McTaggart represents two of the guards who were sued by Kalm. Both testified under oath they did not use improper force with the inmate.

McTaggart read the Rogue Force series. On Tuesday, he filed a broad motion for confidentiality, which would preclude Hampton from talking and place restrictions on all of the documents involved in the case.

In his motion, McTaggart suggests Hampton’s statements may harm his clients and “are intended to and likely to have the effect of influencing the pool of potential jurors in this case. Such future statements by plaintiff’s counsel will make it unlikely that defendants will be able to obtain an unbiased jury pool in this case.”

In a written response, Hampton points out the systemic lack of training, and other matters of public import, which were revealed by the guards under oath.

“The testimony of the COs, former warden and former commissioner establish that the percentage of correctional staff fully current in such training is, and always has been, 0%. This is not an issue that can be suppressed by a confidentiality order,” he wrote.

Neither McTaggart nor Biden were willing to be interviewed for this story.

Hampton says the Attorney General’s Office is more concerned about the embarrassing information being made public than they are about the jury pool being influenced. He wonders who is really behind the legal maneuvering.

“They’re trying to suppress information about how poorly the DOC is doing. It’s been an embarrassment to them, and they don’t want to be embarrassed,” Hampton said. “This is a matter of public policy. We have public officials entrusted with the public trust to run prisons and they’re not doing it. Inmates are being badly injured and are dying. This is a matter of grave public concern.”

Judge William Witham Jr., Resident Judge of the Superior Court of Kent County, said attorneys are not hindered from discussing public policy in a general sense.

“It’s one thing to talk about a matter of public issue when you’re an attorney. It’s entirely something different when you’re a judge,” he said. “However, for the most part, I don’t know of too many restrictions on attorneys to prevent them from talking about public policy issues. And I don’t know who could envision what’s happening in our prison system is anything other than a public policy issue.”

Child rapist released

Judge Witham is all too familiar with the medical care provided in Delaware’s prisons. However, as a sitting judge, he declined to offer an opinion about the department’s medical capabilities.

Instead, he cited his 2003 decision in the case: The State of Delaware v. Kenneth P. DeRoche.

DeRoche was sentenced to eight years for raping a child. Witham ordered that he be released five year early and placed on home confinement, because of the DOC’s medical vendor was not treating his heart ailment properly. At the time, inmate medical care was provided by First Correctional Medical (FCM), an Arizona-based firm that was replaced in 2005 by the current medical vendor, Correctional Medical Services (CMS).

After the prison medical staff failed to provide his heart medication regularly, DeRoche’s blood pressure skyrocketed and he suffered a heart attack. DeRoche appealed to Witham, his sentencing judge, who held two hearings into his complaints, and issued several orders to FCM, orders that he said were ignored.

In his decision, Witham found DeRoche to be credible, and he castigated FCM and the DOC for poor care.

“The court takes seriously these types of issues,” Witham said Wednesday. “I do understand the working conditions the DOC operates under, the education and training issues. The onslaught of people incarcerated plays a factor as well. Put it all in the mix, they’re under a lot of stress. That given, there is an obligation under the law to provide reasonable medical treatment.”

Transparency

Robert Kern believes the efforts to contain the prison scandal are being directed “by the highest office in the state.”

Kern hopes Gov. Jack Markell will keep his vow to make state government more transparent by providing as much information as possible about inmate health care, rather than hindering free speech.

Kern’s son Daniel died Sept. 15 while an inmate in state custody of pancreatitis, an illness that should have been easy to diagnose and treat. Daniel Kern had been serving a one-year sentence for his third DUI conviction. His complaints of severe abdominal pain went unanswered. His family says the medical examiner told them Daniel died of “gross medical neglect.”

“I think this is business as usual,” Robert Kern said. “They should be promoting transparency. I think the fact they don’t want this type of factual information to get out to the public is really a method on their part of minimizing damage. It’s totally unethical. It’s totally unjust.”

Kern is concerned about the administration’s focus.

“This type of action won’t produce positive results. It’s not going to effect change. It will just extend the problem,” he said. “It makes me angry they are going to pursue this. How many other people are going to be pressured by state government to keep silent.”

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 2009 by the Caesar Rodney Institute

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Last week, the Senate finally passed House Bill 1 to open the doors of the General Assembly and at long last include it under the state’s FOIA law. Bloggers, good government folks, the media…we all showered them with praise for this long over due move.

Oops.

This past Monday, the Joint Finance Committee closed its meeting to the public. Why? Because the bill hasn’t been signed into law yet.

Seems that they were more interested in the appearance of open government than, you know, really believing in it. This comes at a time when the JFC is making some big decisions on the budget, cuts and the tax increases that are coming into every home near you.

As reported by Ginger Gibson, “When the Bond Bill Committee met Thursday, co-chairman Sen. Robert L. Venables, D-Laurel, kept the meeting open to the public, citing compliance with the spirit of the legislation even though it hasn’t been signed.” Good for him and for the rest of the Bond Bill Committee.

In contrast, Rep. Dennis Williams response to his closing the door on open government:  “It’s not the law. Why would I open it up if it’s not the law?”

This is your General Assembly.

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A bi-partisan group of legislators have signed on to a new good government bill introduced in the House of Representatives. Sponsored by State Rep. Mike Ramone, House Bill 172 will require individuals elected to elected office, appointed to fill a vacancy in elected state office or those who have filed as a candidate for elective office to disclose the name and address of every nonprofit organization, civic association, community association, foundation, maintenance organization or trade group of which he or she is a member.

This bill, if passed, will be another step in the right direction towards increased transparency in Delaware government.  The state’s Grants-In-Aid bill  funds over $40 million in appropriations to various non-profit organizations ($45,232,021 in FY 08) in the state. Knowing what elected officials, appointed officials and candidates are affiliated with these organizations will help to shed led on connections between the money givers and the recipients.

The bill is co-sponsored by Reps. Keeley, D. Short, Booth, Hudson, Kovach and Lavelle as well as Sens. Peterson, Sokola, Sorenson, Bunting and Cloutier.

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