The Vermont State Employees Association, the state workers’ union, had requested from the Department of Human Resources emails and other documents relating to Gov. Douglas‘ plan to cut 400 jobs from the state’s payrolls. DHR responded with a demand for $1700 to pay for the time DHR staff would have to spend gathering the documents in order to deliver them by the deadline specified in the public records law. (See the Times Argus story here.)

Administration Secretary Michael Smith suggested that VSEA request the information under an article of the union contract, which doesn’t state any deadlines and which wouldn’t, therefore, require some DHR staff to drop everything else they’re doing to meet the deadline.

Sounds reasonable, perhaps, to the very naive. But VSEA isn’t very naive. They have countered with the suggestion that DHR request an extension of time to produce the records, which is allowed under the public records law. But VSEA is not open to abandoning their public records law request and issuing the request under the union contract, since that would deprive them of timelines entirely, as well as the possibility of suing DHR in Superior court if it fails to produce the records. In other words, the alternative proposed by the administration is one that would render them unaccountable.

VSEA makes the point that both it and legislative committees have been asking for months about the impact of the loss of the 400 jobs on state services. Given that, it’s rather disingenuous of the administration to complain about being caught short on time to produce the records such that they can’t comply with the law without charging VSEA $1700.

There are elements of this situation that closely resemble what I experienced with the Vermont Secretary of State’s Office as well, which show themselves to be standard tricks and strategies of bureaucracies doing all they can to stall, at least, and avoid accountability entirely, at most.

For instance, in order to pursue an appeal of the Secretary of State’s due-process violating procedures that deprived me of my livelihood, I first had to order a hard copy transcript of the OPR hearing in my case, which came with a $1000 price tag. The state also had an alternative for me, as well, much as they suggested one to VSEA: save the cost what we will charge you to proceed, and just accept what we say the way we say it.

My thanks to VSEA to persisting in its efforts to attain the information it’s entitled to by law, without having to pay expenses that should fall to the state. As for the matter of who should bear the expense of providing records, that’s one of the details that legislators should develop a habit of addressing in all such legislation. It is absolutely one of the details that bureaucracies use to deter people from availing themselves of all the procedures (e.g. my appeal) and information (e.g. DHR records) to which they are entitled; details that in effect constitute loopholes for the bureaucracy. It’s up to legislators to close those loopholes by clearly stating who pays for what. And it’s up to us rank and file citizens to see to it that legislators close those loopholes and define clear accountability mechanisms for bureaucracies.

Peace.

Deborah Alicen

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.

Background, for those who want the details: the early history of this situation is in the following posts. Follow the links embedded in each to get to source documents:

• About
  
• It Starts
  
• The Disney Attraction that Thinks It’s a State
• What Do Due Process and Swiss Cheese Have in Common?
• “Troublesome” due process issues noted in appeal decision
• Boilerplate bureaucratic abuse
  
• One More Similarity
  
• Today? Maybe?
  
• Not Yet–and Another Chapter

If you want only the most recent installment leading to this post, see Not Quite SOP at OPR: Update from Vermont Secretary of State’s Office.

If you want to skip the links altogether, here’s the thumbnail summary. Vermont’s Secretary of State, Deborah Markowitz, puts herself forward as, and generally has the reputation of, a liberal to progressive, idealistic Democrat who is committed to open, responsible, accountable government. Yet as documented in the source materials linked to the above posts, her Office of Professional Regulation is anything but open, responsible, and least of all, accountable.

The first part of this situation was my having been wrapped up in the OPR bureaucracy for several years, in a Kafkaesque meat grinder of a process that did in my psychology practice and put me into bankruptcy and foreclosure. During that process the shots were being called by a former chair of the Board of Psychological Examiners, Mary Willmuth, who was possessed of at least one clear conflict of interest, with two or more other strong possibilities present in the circumstances. To be sure, I appealed the Board’s original decision against me, in which, among other things, they convicted me of ten things with which I had never even been charged. The only hope I had of salvaging my credibility was by going through the appeal process—and that expense is what did me in financially, severely enough that I have yet to recover from it. (And here I will ask you to please notice the “Donate” box on the right side of this page.)

All the charges of malpractice against me had to do only with clinical notes.  There was never any allegation that I had caused anyone any harm.  All the charges of malpractice were reversed on appeal.

But I should never have had to go that far. There should have been a way to stop something as egregious as the OPR actions were from the beginning. There should have been someone, some office somewhere, to tell Markowitz and the OPR, “Back up. The state must play by the rules.” But there was no such someone. Once the process against me had been started, I had no way to stop it, no matter how outlandish were the OPR‘s actions.

The second part of this situation was my filing an unprofessional conduct complaint against Willmuth. No, I was not so naive as to think there would actually ever be a decision acknowledging her unprofessional conduct, though there are several articles in the professional code of ethics, which has been adopted into Vermont law, that speak to her actions. I filed the complaint against her because it was important to document as thoroughly as possible how the system really works, driven by crony-ism and conflicts of interest, despite even Markowitz‘s assertions of idealistic commitment to open and accountable government.

There were a couple of moments when it appeared that the people at OPR were at least trying to act according to principles of responsible government. The first was in April, 2006, when the new director of OPR, Christopher Winters, wrote me a letter saying that no investigator or unit administrator who had been involved in any prior case involving me would be assigned to work on the complaint against Willmuth. The second time was this past January, 2008, when I heard from Ed Adrian, the lawyer who was working on the team investigating the Willmuth complaint, that the Board of Psychological Examiners had rejected the initial recommendation of the Investigative Team (IT) to dismiss the complaint (see this post).

The last documents from the state on the matter arrived a couple of weeks ago. They were a letter from the unit administrator who had violated OPR regulations in the case against me, and the report that concluded the complaint should be dismissed.

Now, who would like to guess who at OPR signed off on the dismissal?

Could it possibly have been the OPR lawyer who defended OPR‘s due-process-violating conviction of me? The same OPR lawyer handling the appeal for the state—the appeal which reversed all findings of malpractice against me? Could the OPR powers that be have really been that benighted, or arrogant, as to let that very same lawyer, possessed of such an obvious conflict of interest, sign off on the dismissal?

Yes, yes, yes, and yes.

The OPR lawyer who signed off on the dismissal of the complaint against Willmuth is the same OPR lawyer who tried to make sure that the OPR‘s egregious convictions of me stuck: Robert Backus.

Ah, but Christopher Winters never said there wouldn’t be a lawyer appointed to the Willmuth case who had not been involved in the case against me!

And I do wonder how Robert Backus came to take over the case that Ed Adrian had shepherded for two years or so.

And it’s not just Backus‘ signature on the dismissal. It’s also some truly absurd things he wrote in his rationale of the dismissal. I’ll save that post for another day, however.

So there you have it. Given this outcome, there are two possible conclusions, from where I sit. One is that Markowitz never meant a word of what she’s said and written about a commitment to open, responsible, and accountable government, that it’s only been the kind of jabber to get one elected to then wield power however irresponsibly one wants to, given there are no mechanisms in place to prevent it. The other is that Markowitz has meant every word she’s ever said or written about open, responsible, accountable government, and that not even she who is currently serving her fifth term in office can prevent her own staff from acting irresponsibly and abusing power when there are no mechanisms to hold them accountable.

I will assume the latter, which of course also assumes that Secretary Markowitz would agree that there have been conflicts of interest at work in her OPR. If that is the case, then I invite her to join me in calling for the creation of a State Ombudsman Office in Vermont.

What other avenue to open, responsible, and accountable government is there when not even the best in state government can pull it off in their own offices, absent some external mechanism of accountability?

Peace.

Deborah Alicen

P.S. While Markowitz bears primary responsibility here, I’m not forgetting that professional board members are appointed by the governor. That’s a process that also bears scrutiny.

I have seen state bureaucrats possessed of as much ineptitude and malice as anyone in the Bush administration, and what I’ve seen has convinced me that we’ve wound up with something as bad as our present corrupt government because of our acceptance of malice and incompetence at local and state levels.

A few days later, I mentioned in another post what two lawyers had told me about cases in the Vermont Secretary of State’s Office of Professional Regulation (OPR), which investigates allegations of misconduct against licensed professionals:

“Once they file charges against you, they will convict you. …[T]hey would be embarrassed not to return a conviction in a case in which charges were filed. [Emphasis added.]

There’s a very strong and far more serious echo of that in a story by Russ Tuttle in The Nation. Tuttle quotes Col. Morris Davis, former chief prosecutor for Guantánamo’s military commissions who resigned last October for ethical reasons, recounting a conversation he had with Pentagon general counsel William Haynes:

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.‘” [My emphasis.]

So there’s a case in point, of the micro and the macro mirroring each other. I persist in thinking that our tolerance of such abuses at lower levels of government are what channeled us right into accepting a president who’s so contemptuous of the rule of law that we have the situation we have in Guantanamo.

I imagine there are those who would suggest it might be a chicken and egg situation—perhaps lower level bureaucrats are copying their more powerful counterparts. I think not, but regardless, these things are true:

• No lawyer or law enforcement person who has participated in such abuses in local and state bureaucracies has a right to shake their head and decry Bush’s trampling of the Constitution.
• The same goes for every state legislator, county commissioner or city council person who has failed to take action to institute transparency and accountability measures for reasons of (an assumed) high cost, or because “not that many people are affected,” or for any other “reason.”
• The same goes for those in insurance companies and law offices who push innocent people to accept a “settlement” that’s short of justice, in any case in which justice isn’t absolutely precluded.
• The same goes for anyone and everyone who puts winning ahead of justice.

In short, anyone who participates in the problem in local and state realms is part of the problem at the national level. It’s our consciousness about the business of justice that has to change—to accomplish a separation of business and justice that is, in practical terms, as important as the separation of church and state.

Transparency and accountability. Transparency and accountability. Transparency and accountability. How, in this day and age and place, can anyone claim to be on the side of principled government without doing everything possible to institute transparency and accountability?

Peace.

Deborah Alicen

I appreciate the initiative by Ed Adrian to call me to get an alternate email address and let me know of the problem. He and the OPR director, Christopher Winters, have confirmed that in the future they will send me hard copy updates, in addition to email, to make sure I get them.

The upshot of the update: standard operating procedure (SOP) at OPR has been sidelined in the case that I’ve written about here, here, and here. I do not yet know whom I have to thank, but it appears someone at SoS/OPR has been listening. Here’s what I know:

Regarding the former chair of the Board of Psychological Examiners who acted as both prosecutor and “independent” expert witness, offered under oath an analysis based on a non-existent statute, and engaged in other similar unethical actions, the OPR team that investigated the complaint against her went to the Board on January 11 to recommend dismissal of the complaint. Someone, most likely someone with considerable authority in OPR (and less likely but remotely possible, someone on the Board), seems to have brought some official pressure to bear on the Board, resulting in their having departed from their standard operating procedure.

The outcome, very different from SOP, was the the Board rejected the recommendation of dismissal and sent the matter back to the investigative team for further review, to be presented to the Board again in another month or two. They will be getting a different psychologist, totally new to the case, to undertake the review and recommend for prosecution or dismissal.

That is as much as I know. Here is what all that suggests to me:

OPR investigative teams (ITs) are made up of a professional from the Board, an investigator, a unit administrator, and an attorney for the state. In order for any case to go forward to prosecution, both the lawyer and the professional on the IT have to agree that it’s warranted. If one or the other disagree, the recommendation is to dismiss. Since, in the case in question, the IT’s recommendation was to dismiss; and it was rejected by the Board and the matter remanded to the IT; and the IT is to have a new psychologist assigned to it; all those things taken together suggest that the psychologist who has been assigned to the case for the past 21 months (and was presumably a factor in why the case lay dormant for 18 months) is likely possessed of a conflict of interest.

I could rail—and at some future date, in some private place, may well—about how OPR should have made sure from the outset that whatever psychologist they appointed to the IT was unfettered, especially given that I have been like a broken record repeating “conflict of interest, conflict of interest,” for the past seven years. But I’d rather attend to what’s happening now, or at least what is appearing to be happening now; and that is that someone or ones in OPR/SoS now seem to be policing the actions of those who act under their authority. That is a good thing.

The story continues and the ultimate outcome is still uncertain, but this is a welcome, and I think important, intermediate outcome. Granted that I could be entirely wrong about what seems to be happening. But if what is happening is truly that people in power are attending to preventing the unethical exercise of that power, that is a very good thing.

Peace.

Deborah Alicen

Today’s Wall Street Journal carried a story about Scott Bloch, head of the Office of Special Counsel who is investigating Karl Rove’s actions, and who is now being investigated himself at the behest of (surprise–not) the White House. In addition to pointing out the somewhat obvious conflict of interest (gosh–ya think?), there was a particular line that caught my eye:

Mr. Bloch believes the White House may have a conflict of interest in pressing the inquiry into his conduct while his office investigates the White House political operation. Concerned about possible damage to his reputation, he cites a Washington saying, “You’re innocent until investigated.”

The bell that rang was remembering my first lawyer (whom I subsequently fired) telling me that the way to play the game with Vermont’s Secretary of State’s office was to avoid being charged. “Once they file charges against you, they will convict you.” I think I probably shrieked my incredulity at him, and he elaborated by telling me that the culture of professional boards was such that they would be embarrassed not to return a conviction in a case in which charges were filed. (“Good heavens, I have to convict this soul no matter what or I’ll never be able to face the country club crowd again for the sheer embarrassment!”)

In Mr. Bloch’s case, his worry is being found guilty in the court of public opinion, which won’t necessarily impact his circumstances materially. In the case of Vermont’s Secretary of State (SoS), in which livelihoods are at stake, it’s odious, to put it mildly, to think that charged=guilty.

A good little research project, if the statistics are out there: compare conviction rates in administrative cases such as those at SoS with conviction rates in tort and criminal cases.

Peace.

Deborah Alicen

June/25/08 Update:

Latest reports that I’ve seen cite a lot of specific bad behavior by Bloch.  Time will tell on this one, if anything does—and the effects of assumption of another’s guilt based on such circumstances as in the story above aren’t changed whatever the truth of this particular case may be.