Maine attorney general OKs paying up to $100,000 to private attorneys to defend state in CDC whistleblower suit

Posted Feb. 19, 2014, at 2:11 p.m.
Last modified Feb. 19, 2014, at 3:47 p.m.
Maine Attorney General Janet Mills
John Clarke Russ | BDN
Maine Attorney General Janet Mills Buy Photo

AUGUSTA, Maine — The private attorneys hired by the state to defend the Maine Center for Disease Control and Prevention from a federal whistleblower lawsuit filed by a former employee are being paid $300 per hour.

Maine Attorney General Janet Mills has authorized the state’s Department of Health and Human Services to spend up to $50,000 on private lawyers — after a pair of attorneys in her office asked to be recused from defending the state and CDC director Sheila Pinette in January.

Pinette has retained Portland-based attorney Gaydon Stevens, in the firm of Kelly, Remmel & Zimmerman, to represent her. Stevens will be paid $333 per hour by the state, according to a letter from Mills authorizing the expense. That representation is also capped at $50,000.

In an email Wednesday, Timothy Feeley, a spokesman for Mills, wrote the state has sought outside attorneys 72 times during 2012 and 2013.

The Maine CDC is an agency within the Maine DHHS.

The lawsuit, filed by former CDC official Sharon Leahy-Lind last October, alleges that Pinette and others in DHHS and the CDC violated the Whistleblower Protection Act by retaliating against her when she refused to destroy documents connected to the funding of the Healthy Maine Partnerships program.

Leahy-Lind’s suit also alleges defamation and violations of state and federal medical leave acts, the Maine Human Rights Acts, the federal Civil Rights Act, the Freedom of Access Act and the First Amendment.

Leahy-Lind has said she was ordered to destroy documents used to rank Healthy Maine Partnerships participating agencies after the Sun Journal requested copies of the records in June 2012.

The agency eventually produced records for the newspaper. But Leahy-Lind said they were not the original documents, bringing into question the authenticity of the records and the entire process that was used to distribute $4.7 million in tobacco settlement funds.

Leahy-Lind has most recently said she was also interviewed by the FBI about issues at the CDC and in late January technicians from the state’s Office of Information Technology took computer hard drives from several employees, including Pinette, CDC Deputy Director Christine Zukas and Office of Health Equity Director Lisa Sockabasin in an effort to secure potential evidence for the lawsuit.

According to a letter from Mills to Kevin Wells, the state attorney who serves as the general counsel at the CDC, the state will pay attorneys Eric Uhl and Jonathan Shapiro of the firm Fisher & Phillips — a nationwide firm with a Portland office — $300 per hour for their work on the case.

Fisher & Phillips specializes in employment and labor relations law, according to the firm’s website.

The state will also pay associate attorneys working on the case $240 per hour and paralegals on the case $125 per hour. In her letter to Wells, Mills notes, “This authorization also extends to other attorneys in the firm who may be called upon from time to time to assist in the case.”

The authorization from Mills caps the total expense at $50,000 without prior approval from her office.

Mills also notes the authorization to pay the outside firm does not extend to work on an appeal and that an additional authorization, in writing, would be needed, “if the scope of the engagement, term of the agreement or the hourly rate need amendment.”

The letter also authorizes “reasonable mileage” for those working on the case to paid at the state’s current rate — 44 cents per mile.

In a joint motion filed Jan. 17, Maine Assistant Attorneys General Susan Herman and Ronald Lupton asked the U.S. District Court if they could each withdraw as counsel, “due to a recent and unexpected development.”

No details of that development were provided and so far neither Mills nor the judge presiding over the case has disclosed what the unexpected development was.

One of the duties of the state attorney general’s office is to represent the state of Maine, including defending the state and its agencies in court.

But, according to the federal motion, “the Office of the Attorney General is unable to continue to represent either the CDC or Pinette in this litigation.”

The Legislature’s Government Oversight Committee has also been investigating the issues surrounding the Healthy Maine Partnership and the improper destruction of public records.

Last week, Uhl and Shapiro wrote GOC members asking them to postpone their work until the federal lawsuit was disposed of. The committee has been reviewing the findings in a report issued by its investigatory arm the Office of Program Evaluation and Government Accountability.

OPEGA’s report issued in December confirmed CDC officials ordered the destruction of documents. The Government Oversight Committee is expected to take the case up again when it meets at 9 a.m. Friday in Room 220 of the Cross Building, beside the State House in Augusta.

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