Our View: CDC employees are entitled to legal counsel

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On Thursday, the Sun Journal published a front-page report on the fees to be paid to private lawyers hired to defend Maine Center for Disease Control and Prevention employees in a federal whistleblower lawsuit.

Attorney General Janet Mills authorized the expenditure of up to $50,000 for the firm of Kelly, Remmel & Zimmerman to represent CDC Director Sheila Pinette, and another $50,000 for the firm of Fisher & Phillips to defend the CDC and the state Department of Health and Human Services. Each firm is permitted to seek authorization for future expenditures for their respective clients, as needed.

The story comments on www.sunjournal.com and others posted on the Bangor Daily News site were instantly and overwhelmingly critical of this expenditure. The biggest objection was that taxpayers are footing the bill.

On the Sun Journal site, a regular commenter suggested that the parties named in the suit should be personally accountable for the legal fees because “you, I, plus all Maine taxpayers did nothing to deserve this bill.”

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On the BDN site, the comments were more strident. They were also openly speculative about who did what and when and who ought to be punished and why.

The waters are certainly moving around out there in a swirling ocean of public opinion.

Here’s the thing: Insofar as this civil action is concerned, state employees are entitled to legal representation from their employer. That’s us.

And attorneys — whether representing plaintiffs or defendants — represent their clients’ basic rights to ensure that the protections offered to one are offered to all.

One person’s right to defend themselves is no greater than another’s right, and when one person’s right suffers for lack of adequate counsel our legal system is diminished.

Too idealistic? That’s the thing about principles. They are based on ideals and implemented through action.

The allegations made in the federal suit filed by former CDC official Sharon Leahy-Lind are very, very serious.

CDC employees have been accused of destroying public documents connected to $4.7 million of Healthy Maine Partnerships funding in 2012 to evade a Sun Journal Freedom of Access Act request, as well as of violating the federal Whistleblower Protection Act, the Maine Human Rights Act, the federal Civil Rights Act and more. Along with these allegations are separate questions that these employees may have manipulated HMP funding to favor a particular agency. Early findings by Maine’s Office of Program Evaluation & Government Accountability suggest some of the allegations are true.

When the civil case was filed, two assistant attorneys general were assigned to defend CDC employees and were ordered to work in a virtual silo so that the AG and other attorneys in that office were not privy to their work. That was done because the AG and others, including the chief deputy attorney general, had performed an earlier investigation into allegations that documents were destroyed at the CDC after the Sun Journal filed a complaint with the state’s public access ombudsman’s office in April 2013. The civil case against the CDC was filed six months later.

As a matter of professional ethics, the attorneys assigned to defend the CDC could not have had any part in that earlier work.

But, last month, those siloed attorneys filed a joint motion asking to withdraw as counsel “due to a recent and unexpected development.”

What that development was has not, and probably will not, be disclosed. But, that doesn’t matter. If the attorneys jointly came to the conclusion they could no longer represent their clients, Maine has no choice but to ensure the clients/employees are adequately represented in this civil action.

We were paying the attorneys general, and are now paying the private attorneys. Granted, the hourly fees between the public and private attorneys are not on the same scale, but the use of private counsel is standard practice and one Maine has turned to 72 times in the last two years in a variety of cases.

We all have the constitutional right to counsel in criminal proceedings, but that right doesn’t extend to civil cases. Even so, the norm is that defendants in civil cases are represented by counsel to ensure that their rights are protected and justice prevails.

That’s what we want in this case.

We want to be sure that each defendant is vigorously represented and that the public has certain knowledge of what transpired here.

The public trust is at stake.

jmeyer@sunjournal.com

The opinions expressed in this column reflect the views of the ownership and the editorial board.

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