The Maine Legislature’s Government Oversight Committee(GOC) voted October 19 to direct Assistant Attorney General Christopher Taub to ask a Superior Court to force the Maine Department of Health and Human Services (DHHS) to comply with the committee’s subpoena.
The step is the latest development in a months-long dispute between the committee and DHHS about whether GOC members have authority to view the records of four children whose cases were handled by the Office of Child and Family Services (OCFS) and who were killed, allegedly as a result of domestic abuse. The dispute is part of a larger GOC investigation into potential failures of the state’s child welfare agency.
The committee first requested access to the confidential records, to review during executive session, in July. DHHS Commissioner Jeanne Lambrew issued a letter denying the request on August 19.
During its September 21 meeting, the committee voted to subpoena the records. The agency responded on October 6 and lodged a formal objection to the subpoena. In it, the department reiterated arguments it made in June, stating it would not provide the GOC with the requested records because it does not believe the committee has statutory authority to review them.
DHHS has denied the GOC’s request to access the court cases because of ongoing criminal trials. “Any dissemination of information relating to the criminal cases, intentional or not, could undermine the purpose of those proceedings–to obtain justice for the child victims.” Lambrew wrote in an August 19 letter denying the committee access to the files.
The agency is also arguing that the GOC lacks statutory authority to view the files. State statute requires DHHS to disclose confidential information to “any appropriate state executive or legislative official with responsibility for adult or child protection services in carrying out the state executive’s or legislative official’s official functions.” The agency argues this definition does not extend to the GOC and that it will turn records over to the Office of Program Evaluation and Government Accountability (OPEGA), a legislative oversight body that answers to the GOC, but not to the committee.
The committee discussed its next available steps when it met on October 6. Taub, who is representing the GOC in the case, advised committee members that they could direct the attorney general’s office to apply with the Kennebec County Superior Court to force DHHS to comply with the subpoena.
Sen. Jeff Timberlake (R-Androscoggin) spoke in favor of pursuing that course of action, saying he believed it is pertinent to what the public wants to know and what the committee needs to know.
“I need to know what happened in DHHS and where that failed,” Timberlake said.
Before voting on a motion to direct Taub to go to the courts to try to enforce the subpoena, committee members discussed several related issues, including the likely time frame of the move and whether the court will rule on the interpretation of state statute, which is part of the dispute between the GOC and DHHS.
Taub advised the committee that the timeline for scheduling a hearing in the matter would be up to the court and further stated it was not clear if the case would be given priority.
Sen. Lisa Keim (R-Oxford) suggested sending a letter to the court detailing the urgency of the GOC’s request. Taub indicated a letter of that nature would be “very unusual” for the court to receive and “would trigger that this is something important.”
Taub also suggested the committee appoint representatives responsible for reviewing decisions needed to be made during the course of the litigation. He said waiting for the entire committee to review decisions would be “cumbersome” and could slow the case down.
Asked by Sen. Susan Deschambault (D-York) about the likelihood the court would rule whether the GOC can access the files, Taub said that would be what they would be asking the court to rule on. Taub also stated that should the court rule against the GOC, the legislature could pass a bill to clarify the committee has authority to review child welfare records.
Committee members also expressed concern about the attorney general’s office representing both sides of the dispute. DHHS is receiving legal advice in the matter from Assistant Attorney General Ariel Gannon.
Taub advised committee members that it is not uncommon for the attorney general’s office to have to represent different agencies in disputes as it is constitutionally charged with representing all government departments. In cases where that occurs, Taub said the agency creates a wall between attorneys working for different clients.
Sen. Nathan Libby (D-Androscoggin) voiced opposition to the motion.
“I think the statute the committee wants to hang its hat on is not clear,” said Libby.
Libby, the Senate chair of the committee, said he believed the most efficient and practical solution to the statute would be for the legislature to take action during its next session.
“I expect that bill would get prompt, near-unanimous, tri-partisan support,” said Libby. He further stated he would still continue the ministerial duties of chair if the committee wished.
A motion to direct Taub to seek DHHS’ obedience with the subpoena passed, with Libby casting the only vote against it.
The committee then voted unanimously to send a letter, signed by GOC members who approved the previous motion, to the Kennebec Superior Court.
On a motion from Sen. Rick Bennett (R-Oxford) GOC members again voted unanimously to appoint the committee’s leads and chairs to handle decisions in the litigation and to convene the committee when appropriate. Rep. Holly Stover (D-Boothbay) serves as the committee’s house chair and Keim and Rep. Amy Arata (R-New Gloucester) serve as the committee’s ranking leads.
Following the motions, committee members also discussed the impact recent developments in criminal cases might have on its ability to obtain child death records.
The trial of Jessica Williams, charged with depraved indifference murder in the death of her three-year-old son Maddox Williams went to the jury on October 18. Hilary Goading pled guilty to manslaughter for the death of her three-year-old Hailey Goading on September 29.
Sentencing in both cases is still pending.
Peter Schleck, OPEGA’s director, said he expects DHHS will prepare summaries in those cases, as his understanding of state statute is that the agency is required to provide records following sentencing.
Scleck also told legislatures that OPEGA is in possession of the case files for the four children requested by the GOC and is in the process of reviewing them. He estimated OPEGA will produce a report for GOC to review in February.
Before adjourning, the GOC tentatively scheduled a meeting for November, in case of any developments in its case before the superior court. The meeting will not occur if there are no developments as the GOC has completed the rest of its workload for the current legislative session.