Monday, December 12, 2011

Whistle Blower Retaliation

Reprinted from Red and Blue Commentary-by Don Pesci

Thursday, December 08, 2011

The State Of Fraud

When fraudulent activity on the part of state workers was brought to the attention of Governor Dannel Malloy, he let loose a predictable thunderbolt:

“I want to be very clear about something — if anyone in state government is aware of any fraud or abuse in any state agency, I want to know about it. Anyone with information should come forward so we can investigate it, and they should do so knowing that there will be no retribution whatsoever. I know that culture once existed in state government. It doesn't anymore."

The program as set up by the Feds, designed to provide immediate relief to nutmeggers who lost food supplies in a harrowing early winter storm, operated as the social service equivalent of a speed trap. Frauds, some of whom worked for the state, were quickly identified after they had accepted payments to which they were not entitled.

The governor is not the only one in state government familiar with a “culture” that punishes whistleblowers and frustrates responsible state fraud investigators.

Fraud investigation is a thankless chore for a number of reasons.

Once fraud is detected and reported, people lose their jobs, and job retention in Connecticut is of paramount concern to state unions, politicians whose candidacies for office are supported by state unions, and what one might call the culture of recurring budgets.

Fraud detection necessarily involves a return of money to funding sources, either the state or federal governments. And a reduction in funding for the present year will affect funding in the coming year. No one in the state or federal government can be expected to work diligently to reduce budgets, neither those in the federal government who supply funding to states for federally mandated programs, nor the distributors of the funds -- i.e. state bureaucracies -- nor the recipients of the funds. Indeed, the only people who might be expected to send up a cheer at the prospect of spending reductions in programs are taxpayers who ultimately pay for them, and their council is not represented by any of the principals who move tax money through the spending chute.

Truth be told, state fraud investigators and whistleblowers are occasionally punished when they do what is expected of them, because the money they save will not be available for future spending.

The punishment usually is indirect but effective. Many are the ways used by program administrators to discourage whistleblowing. State regulations, constantly evolving, are such a tangle of abstruse nonsense that one or another law or regulation may always be found in the mess and applied, sometimes retroactively, to whistleblowers who threaten the hegemonic culture of corrupt activities practiced by outwardly upright administrators.

That is precisely what happened to Pricilla Dickman, who ought to have been given a purple heart for exposing deficiencies at the UConn Health Center and the attorney general’s office under the sainted Richard Blumenthal. A record of the indignities visited upon her by Mr. Blumenthal’s office may be found here.

That no one is appalled by the thus far successful attempt to destroy Mrs. Dickman is a measure of the force of the retaliatory arsenal confronted by anyone in state government who is so bold as to put his lips to a whistle in an attempt to rout out what the governor is pleased to call a “culture” of corruption.

Part of the culture of corruption has leached into the attorney general’s office itself. The office is by statute bound to represent the state in any litigation involving whistleblowing. At the same time, the office is charged with representing whistleblowers, a clear conflict of interest that should not be allowed to stand. The attorney general’s office should not be permitted to represent the interests of both the defense and the prosecution in litigation matters. When Mrs. Dickman encouraged state legislators to end the practice and withdraw whistleblower oversight from the attorney general office, the full retaliatory power of the state was brought to bear against her. No one doubts Mrs. Dickman will be crushed the end, at which point the lesson will be broadcasted to other state workers who seek to save the state’s honor, not to mention its money: Just shut up.

Sunday, October 9, 2011

UCHC-Held accountable?

I once was told by an attorney that it is very easy to get into the criminal justice system but difficult to get out.

I have come to find that when you speak out against the University of Connecticut Health Center, if you question their spending habits or you become injured while on the worksite as an employee, you can become engaged in quite a maze of the criminal justice system.

After four years I was fortunate enough to have come across the services of CT.Confidential Investigators which my attorney Norman Pattis was able to utilize in a recent habeas hearing. I finally feel the truth is now ready to be told with factual evidence.

The investigators found that UCHC in an attempt to diminish their liability in my workers compensation claim and to retaliate against me for filing an ADA/CHRO in 2005 decided to engage in manufacturing evidence which led to my arrests.  In so much as the former VP of UCHC, Joan Mazzone was able to have assistance from the OCSA (where her husband is also employed as an inspector) it became a match made in heaven to get the dirty deeds done.

Four years navigating the criminal justice system in our state just to be able to prove that I was never found in an National Insurance Crime Database concerning a questionable probate document (as alleged)  is too long for justice to be served. It is  much too long to prove the arrest warrant was flawed.

You begin to feel like you are on the set of The X-Files-the truth is out there. Yet now it is done. At what cost to me , my family and the taxpayers?

It is time for the UCHC to be responsible and begin its own independent investigation of how computer crimes, an invasion of privacy and constitutional violations were allowed to be committed with those at the highest levels of the adminstration participating as they protected other employees who assisted in these criminal acts.

Who in state government is accountable for the waste here? The tax payers again foot the bill.

Tuesday, January 4, 2011

HOPEFULLY THE SUN WILL ALSO SET ON GOVERNOR RELL'S LEGACY-OFFICE OF STATE ETHICS AND THE CITIZENS ADVISORY BOARD

GOVENOR RELL SEEMS TO HAVE AMNESIA AS TO WHAT IS THE MEANING OF ETHICS-
A FAILED ATTEMPT AT CHANGE……..and she seems to not have any interest in correcting the mishaps of her newly created Office of State Ethics……Rell failed to respond since 2007 to request that she review the questionable activity of this Ethics office and its Board (Citizens’ Ethics Advisory Board)…… another dark period in Connecticuts’ history……….no legacy at all Jodi.
Governor Jodi Rell’s real legacy was to be the change she made for Connecticut by redefining the Office of State Ethics. That office with all the new statutes and regulations was to be the corner stone for the country to emulate as states began to revisit their own ethics divisions. Many states were looking to Connecticut to review this legacy of Governor Rell and begin to adopt these well publicized changes in their own back yards. Perhaps we all had better put the breaks on and wait to see what Connecticuts’ Governor is leaving behind as her legacy before adopting it in other states.
I attended the Office of State Ethics five year anniversary. There was quite a build up and lots of talk of the upcoming five year event of this new and improved Office of State Ethics. Along with that there were all the bright yellow signs posted around the capitol, so, I certainly for one was dismayed Governor Rell was absent. Actually other than Senator Kissel, I saw no other legislators. Perhaps fifty people filled room 2C of the Legislative Office Building and maybe twenty of those folks were OSE employees. Ms.Bornhurst of the Citizens Ethics Advisory Board was the only board member present. Embarassing attention has been made to this office and the CEAB when the previous Chairman G.Kenneth Bernhard was forced to step down for giving political donations while holding office. He said he did not know and it was just a little mistake? If the Chairman does not know the rules then who should? Attorney John Geida, who represented me as the first respondent to have gone before this board for a trial has filed an appeal on a myriad of issues including the violation of Mr Bernhard having taking his seat on the board too early after his political career ended,in violation of the state statutes, the structure of this new body and the actions of the members of the OSE enforcement division in conducting their investigation. It seems now it is very difficult to fill the seats on the CEAB and everyone is scratching their heads as to why? I personally can not understand how could they have even begun to fill seats in 2005? How could they open up office and have begun to hold CEAB hearings on ethics violations if the CEAB board, OSE and Governor Rells’ office did not have a clue as to the most basic of questions-how to abide by the statues in filling the seats on this most important board in the first place? More importantly why has our Legislature not weighed in on the problem yet? Many commented they watched the CT.N coverage for many of the days it was televised.
Personally, I believe the embarrassment caused by the last very public hearing was enough to make anyone run for cover and not want to step up and be a part of what seemed like a three ring circus. There the CEAB sat as the judge and jury along with a prosecutor who seemed to redefine the statutes as he went along or as was required to make a conviction possibly result. I dare say anyone who had thought of sitting on the CEAB now would think twice for fear of tainting their name and reputation if they were to be associated with this office in its present state. Or at least until the Office of State Ethics, Governor Jodi Rell and the legislative body in Connecticut goes back to the drawing board and fix all the flaws with this new Ethics office and Citizens Ethics Advisory Board. I would think they surely must realize that manufacturing evidence to attempt a conviction is unethical, that not following the rules of evidentiary and civil procedures is against the statutes and laws of this state. But most importantly the Legislative body needs to realize that the OSE Enforcement Division does not even itself understand the role of its office yet or that of the board. What arrogance when in arguments to the judge, Ethics Enforcement Officer T.J Jones states “ I submit that as a matter of law that’s wrong, your honor. 1-81-A-3 is the provision of the code that says the board shall interpret the code, and when it interprets the code nobody appeals it. The board is the trier of fact in this case, it is bound by the law. That means they are the end all and be all until some other body tells them otherwise” . In hearing that recited from the prosecutor of the OSE clearly demonstrates that he and his office have a total lack of understanding of what their role is and what the role of the CEAB is to be. The arrogance to think anyone office in the state can deny one of their Constitutional rights is absurd!
Well maybe Governor Rell did not appear on the fifth anniversary, October 1, 2010 for Ethics Day Awareness at the LOB because she just did not want to get out of bed and face the facts that she and her office got it wrong again! That if anything she did not fix the problem with the Office of State Ethics when she came into office, she actually made it worse. Now with the opportunity and all their flaws visible to the public she has failed to do anything to correct it. Perhaps now that the results of this disastrous trial is now going before the Appeals Court the OSE will again undergo a transformation and this time for the better. They may get training in what the statutes mean, how to interpret the code and what their role is in the state. Someone should also remind this group, they work for us, the taxpayer, they are not self employed. This office is quick to point out as the Enforcement Officer stated in his presentation yesterday that the OSE was reorganized after the previous office was dismantled as a result of the Rowland scandal. Well, John Rowland paid his dues, I have heard him speak and he admits his errors, if the OSE had admitted theirs on the investigation into their case brought against me at least after Jones took my deposition on May 2009 we both could have saved the state a ton of money. But maybe this was meant to be. OSE is not functional if it is not functioning properly. Let us hope the legislature steps in and rights the ship. As Jones likes to say this ship has sailed, but unfortunately it has sailed off a cliff and Governor Rells’ legacy with it. Govenor Rell gets an “F” here for sure.

The Dickman Case: Blumenthal Breaks a Butterfly On The Wheel

Wednesday, September 29, 2010

Connecticut Commentary: Red Notes from a Blue State

"If ye love wealth better than liberty, the tranquility of servitude than the animating contest of freedom, go from us in peace.We seek not your counsel or your arms. Crouch down and lick the hand that feeds you; may your chains set lightly upon you, and may posterity forget that ye were our countrymen!" --Samuel Adams
Attorney General Richard Blumenthal is the sort of Household Word who might sue death itself when, after a long life of litigation and writing media releases, the grim reaper finally comes for him. He surely has enough tricks up his sleeve to postpone the unfortunate incident for at least half a dozen years, perhaps more.

Ms. Pricilla Dickman’s case has been in litigation at least that long. She is both a whistle blower – the University of Connecticut’s Health Center being the institution whistled at – and the subject of Mr. Blumenthal’s attention these past few tortuous years. Mr. Blumenthal’s office defends both whistleblowers and state institutions. Sometimes when the two lock legal horns, conflicts of interest arise. If one tries to imagine a lawyer in a case involving two antagonistic parties who is charged with representing BOTH in a civil proceeding, a few difficulties will suggest themselves.

The latest turn in the 6 year old Dickman case involves an assistant attorney general who, having agreed to abide by a judgment made by the Commissioner of Worker’s Compensation that might have determined the Dickman case, told a judge trial referee that he never had the authority to settle the case.

In virtually every case Mr. Blumenthal touches, a settlement of some sort or other is arrange and the case is closed, sometimes after years of costly litigation. Blumenthal’s successor – either Republican Martha Dean or Democrat George Jepsen – very likely are hoping that the attorneys under Mr. Blumenthal’s charge are working laboriously to clear the decks of most of Mr. Blumenthal’s outstanding cases before either one of them arrives on the job to shoulder Mr. Blumenthal’s real legacy: In his last finance report, Mr. Blumenthal listed a backlog of 36,394 cases, which seems an imposing number.

Ms. Dickman – who is not one of those Big Tobacco tycoons or a greedy profit driven energy producer or a Wall Street flimflam artist one hears so much of in Mr. Blumenthal’s campaign ads for the U.S. senate – is one of them. A settlement arranged between the assistant attorney general, Ms. Dickman and other aggrieved parties could have placed Ms. Dickman on the “done” side of Mr. Blumenthal’s ledger -- had not the assistant attorney general, who consented to the compact that might have led to a settlement of Ms. Dickman’s justified complaints, not told the judge trial referee, after more than two months of participation in hammering out at a settlement agreeable to all parties, that he was not authorized to offer the settlement he had offered.

The judge expressed his dismay, and no wonder. This is not the sort of thing that judges familiar with the black letter law in settlement cases, “Audubon Parking Associates Ltd Partnership v. Barclay & Stubbs,” appreciate hearing from an assistant attorney general laboring under Mr. Blumenthal’s direction.

Judges, as a rule, are no-nonsense, busy bees, many of them made considerably busier by Mr. Blumenthal’s penchant for suing, which accounts for some of the crushing backlog of cases mentioned in the attorney general's last finance report.

Apparently, the word has been circulated among lawyers. John Wolter, a managing partner at Updike, Kelly & Spellacy and a Jepsen supporter, remarked recently in story in Connecticut Law Tribune covering an upcoming debate between Dean and Jepsen, “A lot of times you’re dealing with assistant AGs, and you think you have a matter ready for resolution, but they don’t have the authority to settle then and there.”

Several years ago, Ms. Dickman, injured on her job, filed a claim to worker’s compensation for disability and what is called “reasonable accommodation,” which means that her employer would have to make accommodations for her so that she would not exacerbate her condition. After a two week review in 2005 she was awarded a State Retirement Disability and then a Permanent Full Disability dating back to April 2005. It is a considerable understatement to say that the accommodations were not made.

Ms. Dickman entered the public spotlight as a whistleblower in 1988, when present Sen. Joe Lieberman was attorney general. She claims retaliation against her began in earnest in 2004 when she reported fraud activity in her medical billing. And, of course, it did not help that Ms. Dickman, a union steward who had assisted others in their difficulties with her superiors, publicly testified in 2008 before the Labor and Public Employee’s Committee on SB 805, a measure providing additional protection for whistleblowers by establishing a Retaliation Adjudication Board within the Commission on Human Rights and Opportunities.

During her testimony, Ms. Dickman lamented that so few people were willing to come forward and speak in favor of SB 805. Testimony was not forthcoming because whistleblowers feared exposure to retribution and retaliation. Ms. Dickman testified, “I am certain that many here have heard of the subtle or outright abusive acts of retaliation that employees are subjected to when they come forward, report fraud or waste, especially at the state agency [where] they are employed.”

Naively, she had contacted the attorney general’s office. But, after her ordeal, she was convinced that this course led to a cul-de-sac:

“I thought that by contacting the Attorney General I would be following the proper course of action. How quickly I learned that is the wrong avenue and that there is little to no protection. In fact, a situation can be made worse by enlisting this office just by the nature of the relationship between state agencies and the duties of the Office of the Attorney General… The Attorney General’s Office represents and defends the employer. The employer is empowered by the fact that they are provided sovereign immunity and will be defended by the Attorney General. It is as though the fox is sent out to guard the chicken coop.”

Commissioned to handle whistleblower information supplied to the attorney general’s office by state employees, Ms. Dickman pointed out in her testimony, the attorney general’s office is also statutorily bound to represent state employers:

“Therefore it is virtually impossible to think that the representative from that office can and will be working to protect the employee at risk. That office can not be unbiased in its actions since it is enlisted to first protect the employer from lawsuits and the state from a loss of revenue, especially if that individual is stating that retaliatory actions have been taken against them for engaging during the process in whistleblower actions for fraud, activity of a protected class such as workers compensation claims or the filing of a CHRO complaint.”

Others have pointed out the structural problems involved when the attorney general’s office represents both whistleblowers in state agencies and the agencies that have engaged in possible unethical or illegal behavior. But walking away from settlements is particularly egregious behavior. Since virtually every legal action undertaken by the attorney general’s office ends in a legally enforced or negotiated settlement, no business or state agency can any longer rely on the word of Mr. Blumenthal’s attorneys if they are willing to abrogate settlements entered into by attorneys general, judges and aggrieved parties.


Published by Don Pesci-Red and Blue Commentary

Ethics panel met illegally: FOI Commission

 Monday, September 27, 2010

 Alex Wood

The Journal Inquirer published the following on Friday, September 24, 2010.

Ethics panel met illegally: FOI Commission
By Alex Wood
Journal Inquirer

The state ethics board violated Connecticut’s open meeting laws when it convened behind closed doors to discuss a procedural issue during last year’s hearing on allegations that Priscilla Dickman of Coventry violated the state ethics code, the Freedom of Information Commission ruled Wednesday.
By a unanimous voice vote, the commission adopted a proposed decision by one of its members, Sherman D. London, who presided over a hearing in the case last Dec. 30.
The decision came in response to a complaint by a Journal Inquirer reporter about the closed session of the Citizen’s Ethics Advisory Board, which occurred on the first day of the Dickman hearing, Sept. 11, 2009, in the same building where the FOI Commission met Wednesday.
The commission, the ethics board, and several other state agencies are housed in a building on
Trinity Street
in Hartford, facing the east side of the state Capitol.
The reporter requested no penalties against the ethics board, and the commission imposed none. But it did order the board to post minutes of the closed session, which lasted about 11 minutes.
The commission found that the closed session violated both the Freedom of Information Act and the provision of the state ethics code under which the Dickman hearing was held, which requires all such hearings to be open.
The ethics board, which is part of the Office of State Ethics, can appeal the decision to Superior Court.
The board has vigorously litigated the freedom-of-information case so far. It submitted an 11-page brief at the Dec. 30 hearing. And Barbara E. Housen, general counsel of the Office of State Ethics, read an additional eight-page legal argument to the commission at Wednesday’s meeting.
Housen argued that London’s proposed decision conflicted with provisions of the ethics code. She also stressed the unusual character of ethics board hearings, in which a semi-retired Superior Court judge presides while the board members fulfill a role comparable to that of a jury.
“This unique and new ethics hearing model, where a Superior Court judge presides, simply does not neatly fit the typical ‘meeting’ definition under the FOI Act,” she said.
After a number of days of hearings, the ethics board concluded in January that Dickman had violated the ethics code by running jewelry and travel businesses while working as a medical technologist at the University of Connecticut Health Center in Farmington. It found that she used state time and resources, such as e-mail, in the operation of the businesses.
The board fined Dickman $15,000. She is appealing the decision in New Britain Superior Court.
The board also met behind closed doors to deliberate at the end of the Dickman hearing. The Journal Inquirer reporter has filed a second complaint with the FOI Commission over that closed session. A hearing on the complaint is scheduled for Tuesday.
In addition, Dickman is raising the issue of the closed deliberations in her court appeal of the ethics board’s action.

Selective Prosecution? OFFICE OF STATE ETHICS/ CT CITIZENS ADVISORY BOARD

Selective Prosecution?

Saturday, January 9, 2010

LETTER TO THE EDITOR
Selective Prosecution
By Priscilla C. Dickman

11/30/09

--------------------------------------------------------------------------------

To The Editor:

I appreciate Dean Pagani’s column, “Swatting At Ethical Flies” (Hartford Business Journal, Nov. 9). The issue here is whether the Office of State Ethics SHOULD use the statute to continue to investigate an employee, such as myself, who for 28 years had excellent evaluations and was never reprimanded for the actions I am accused of. The question must be: Why would the Office of State Ethics (OSE), two years after my retirement, decide to investigate me on this supposed violation of OSE statute?

In 2005, after an “anonymous complaint” was forwarded to my directors and supervisor, I was twice investigated with no disciplinary action found necessary. The reason: I did not violate a policy, statute or act in any manner in comparison to the other 4,000 University of Connecticut Health Center employees, except that I was found to have used my e-mail account on my break in the most limited of time and my cell phone less than two to 10 minutes per day in general on breaks and lunch.

State documents demonstrate that I utilized the state’s telephone for personal use minimally as compared with other state employees. The documents proved personal telephone usage by other state employees who were not disciplined was far greater compared with my usage. That information should have raised red flags, alerting officials that selective prosecution was taking place. A real investigation should have been undertaken for internal discipline against those individuals abusing the state’s e-mail system and telephones on behalf of taxpayers.

Yes, I am afraid I do see selective prosecution by many state agencies who participated and continue to participate in their investigation of me, particularly because during the initial OSE probable cause hearing, the state labor relations director clarified that no wrong-doing was found during a previous investigation prompted by an “anonymous tip.” This earlier investigation revealed that my usage of e-mails and state telephones was minimal compared with other state workers, which is the reason that no action was needed to be taken against me. [Dickmans’ 78 kilobytes of usage as a full-time employee vs. up to 1,461 kilobytes by part-time and full-time employees in the same department Dickman worked in. This evidence was provided by health center’s IT department.]

Notably, other state employees identified for excessively abusing state e-mail and telephone systems for personal purposes by the Connecticut Auditors of Public Accounts have not been disciplined. Notably, Feliciano Dias, my supervisor of 28 years, was the individual found to have violated state policies for personal use in excess of one hour per day, according to a January 2009 letter from the attorney general’s office. However, Dias was not required to make restitution nor disciplined, but rather was “counseled regarding his Internet usage.”

I do believe I am being selectively prosecuted and the citizens of the state need to contact their legislatures and ask why the Office of State Ethics spending hundreds of thousands of dollars on this issue concerning a retired state employee? I contend one merely needs to look at my federal/civil suit against the state and it will be evident.

The citizens need to ask whether the state’s actions are in retaliation because I filed a Commission on Human Rights and Opportunities complaint on the Americans with Disabilities Act (2005) for failure to accommodate me by my employer, the University of Connecticut Health Center, which resulted in a finding in my favor in October 2006.

Note that after working 28 years and earning my state retirement pension, I retired, accepting a reduced state pension and giving back to the state — and taxpayers — 2,100 hours of earned sick leave, valued at $28,000.

I would hope the independent investigation of the whistle blower retaliation act finally moves the legislature to rewrite the much-needed Whistle Blower Retaliation Legislation.

In addition, lawmakers need to review the Office of State Ethics’ actions since June 2007. When public officials are misled, as they have been in my instance, the state must and should look into criminal actions or ethical actions taken against the individuals responsible. The citizens deserve to get their wasted tax dollars back for the actions engaged in here.