If Franz Kafka‘s The Trial and Lewis Carroll‘s Through the Looking Glass had provided the raw materials for the fantastical creation of a government office, their results would probably look very much like the Office of Professional Regulation in the Vermont Secretary of State’s Office.

Last week I posted the latest and last decision in my Kafkaesque journey through the Looking Glass world of the OPR. Click here for that post and the history covered in it. This week I unpack that decision.

Last January I posted an update at the point I was told that the OPR would be getting a new psychologist, presumably one without any conflict of interest, on the Investigative Team (IT) to review the complaint against Mary Willmuth. I was told then to expect it to take another month or two, but knew better, and so wasn’t surprised when it was another five months before I heard anything.

So, what happened with the new, unbiased psychologist they were to have gotten on the IT? And what happened with Ed Adrian, the attorney who had shepherded the case for about two years? His boss, Robert Backus–whom I mentioned in last week’s post as far from being free of appearances of conflict of interest himself–doesn’t spell it out, but here’s what Backus wrote in his Report of Concluded Investigation:

Consideration was given to hiring a licensee [i.e. a psychologist] to review the evidence to aid the prosecutor [Adrian] in evaluating the complaint. However, the prosecutor originally assigned to the complaint [Adrian] requested that Prosecutor Backus review the case and determine the appropriate procedure. The original prosecutor desired the opinion of a second prosecutor. Accordingly Mr. Backus, the senior prosecutor for the Office of Professional Regulation reviewed the file and determined that there was no need to consult with an expert. [Emphasis mine.]

Ah, what a surprise! Not. At least not after one has gotten used to this being Kafka-Carroll Land. As that’s the last reference to Mr. Adrian, it appears that Backus also decided to just take over the case.

But this gets even better yet. Better, that is, from the point of view of showing clearly why Vermont needs a State Ombudsman Office. It’s much worse, however, from the point of view of anything approaching justice having been served.

The complaint against Willmuth centered on her conflicts of interest. There is only one of those that Backus treats as worthy of comment, and I’ll get to that in a moment. But very much worthy of notice is that the OPR investigator didn’t quite do a complete investigation. I know this because a witness to one of WIllmuth’s conflicts of interests was never contacted by the OPR.

This is a common trick used by all sorts of people in adversarial cases. It’s deeply disappointing when it happens in the office of perhaps the most idealistic of elected state officials. The trick works this way: if you want to make sure you don’t have any evidence of something, just don’t look for it. An example to illustrate: I once had a client who had a worker’s comp claim that his employer’s insurance company was trying to dodge. To that end they required him to see a psychiatrist in Boston for an evaluation to determine if he really suffered from depression related to his work-induced physical disability. He was surprised–as was I–when the Boston psychiatrist allowed him to tape their interview, but the psychiatrist didn’t really care. He was getting paid by the insurance company one way or the other. His evaluation to the insurance company said, predictably, that he found no indication that my client suffered from depression. When the client and I listened to the tape together, the reason became clear: the psychiatrist had not asked a single question about depressive symptoms.

So the OPR did not interview the one person who would have confirmed one of Willmuth’s conflicts of interest, and that way they had no evidence of it.

There was, and is, however, one conflict of interest that is clear from the record, and incontrovertible to everyone who lives outside of Kafka-Carroll Land, which Backus clearly does not.

Mary Willmuth acted in a conflicting dual role in my case in that she was the psychologist on the IT who recommended I be prosecuted, and she then served as the state’s purported “independent” expert witness against me.

Here’s the Looking Glass spin Backus puts on that. I’ve edited slightly for brevity only:

The allegation that the Respondent [Willmuth] acted in a dual role is based on a misunderstanding of the role of Board members on the Investigating Team. [Emphasis mine.] The Board member gives the prosecutor an unbiased, and expert, opinion so that the prosecutor can understand the professional standards applicable to a given case and whether or not those standards have been violated. If called upon to testify it is the role of the Board member to provide the same expert and unbiased opinion. [Emphasis mine.]

Oh, dear–where to start?

First, Backus’ fantasy supposes that the Board member starts with no bias. Remember, they conveniently didn’t interview the one person who would have confirmed Willmuth’s pre-existing bias.

Second, once a psychologist has recommended for prosecution, he or she is no longer unbiased, having invested some degree of professional credibility in the recommendation to prosecute.

Third, and the point at which Backus’ position starts falling apart in a serious way, is this: If it was a “misunderstanding” that a Board member is in conflicting roles to act as both an IT member recommending prosecution, and a purported independent expert witness, then that “misunderstanding” was shared by the Board members who excluded Willmuth’s testimony from consideration in my case, as well as the Board’s attorney who allowed them, perhaps even required them, to exclude her testimony.

Wow. There are so many people misunderstanding that one that we’re all to count ourselves very fortunate that the one person on the planet with the “correct” understanding was available to enlighten us all.

Last but not least for this post: Backus rightly notes that a licensee expert on the IT [usually but not always a Board member] is there to help the prosecutor “understand the professional standards applicable to a given case and whether or not those standards have been violated.” And as Backus also revealed, he decided not to hire an expert to advise him or Adrian, as prosecutors, on that very issue. He decided to dismiss the complaint against Willmuth without benefit of that kind of professional opinion regarding her violation of professional standards.

There’s more Kafka-Carroll Land details to Backus’ opus, but I’ve hit the highlights and the rest would be repetitive detail for this post, so I’ll spare you. The rest can wait for the book.

Remember that all this is taking place under the authority of Deborah Markowitz, Vermont Secretary of State, who presents herself as a champion of responsible, open government. To repeat what should be repeated: if Markowitz’s own office is given to so much dodging, obfuscating, and CYA’ing, then we really, really need a State Ombudsman Office in Vermont.

Peace.

Deborah Alicen

P.S.  I added another bit of the background, or at least an elaboration of what I’ve posted on BureaucracyBlog, in this post to Green Mountain Daily, 7/7/08.