‘Reassigned’ DHHR attorneys file whistleblower suits

CHARLESTON – Through a lawsuit, two state Department of Health and Human Resources attorneys are speaking out about why their employment was placed on hiatus three months ago.

In separate lawsuits filed Oct. 9 in Kanawha Circuit Court, Jennifer N. Taylor and Susan Shelton Perry allege the Department violated the state’s whistleblower law when Acting Secretary Rocco Fucillo placed them on “administrative reassignment” in July after questioning the Department’s process for awarding an advertising contract. In their complaints, Taylor, the Department’s general counsel, and Perry, its deputy secretary for legal services, say Fucillo, and other DHHR officials then undertook a campaign to give the appearance they committed a criminal act.

According to their complaints, Taylor and Perry say all the trouble began earlier this year when an advertising contract was put out for bid. Assistant Secretary John Law assigned one of his subordinates, Marsha Dadisman, the duty of chairing the advertising committee.

The committee’s duties included developing a request for proposals, and evaluating and scoring the responses. Law appointed Dadisman as the committee chairwoman due to a close working relationship with the Arnold Agency which held the contract that was soon to expire.

On unspecified days, the committee met, scored technical responses then asked for cost bids. Sometime thereafter, Law inquired about the status of the bidding in which Dadisman reportedly told him the Arnold Agency did not prevail.

According to the suits, Dadisman told Law the committee expected a protest, and the scoring results were sent to DHHR’s purchasing division to issue a proposed contract. After receiving a description of the scoring process, Law asked Perry to review it fearing it could “result in legal problems for DHHR.”

Aware of prior problems in the purchasing division, Perry says she told Law she would ask Taylor to review the technical scoring.

After spending three days reviewing the information given her, Taylor says she “found significant problems with the scoring process.” These included “the failure of some vendors to provide required references; to designate a project team; and to provide sufficient work samples.”

According to the suits, some vendors had points deducted from their scores for the lack of information while others did not. In her report back to Perry, Taylor said the scoring for the contract, which was identified as RFP HHR 12052, was “inconsistent, arbitrary ... deficient [and] legally indefensible.”

She would later tell Dadisman the scoring process for that contract “‘was a poster child for arbitrary and capricious.’”

After receiving Taylor’s report, Perry says she then e-mailed Warren Keefer, deputy secretary for administration, and Bryan Rosen, director purchasing, requesting a meeting on the scoring process. After initially resisting, the suits allege Keefer and Rosen later relented when Perry in a May 8 message said they could expect to use the Attorney General’s Office to help defend the Department with any legal challenges to the contract.

According to the suits, Keefer and Rosen, who are named as co-defendants, were not interested in hearing what Taylor and Perry had to say. Though he reluctantly agreed there were inconsistencies in the technical scoring, Rosen said “nothing could be done” since the contract had been awarded.
During the meeting, both Keefer and Rosen said any attempt to interfere with the contract could result in criminal charges. Rosen said he would make note of Taylor’s analysis to “ensure the next RFP evaluation committee did not make the same mistake.”

After Secretary Michael Lewis retired, Rob Alsop, Gov. Earl Ray Tomblin’s chief of staff, asked Perry to provide him a memo listing all potential legal issues facing DHHR. She listed contract 12052 as one of them.

According to the suits, the issue of the contract was not raised until July 10 when Erica Mani, Tomblin’s deputy chief of staff, called Taylor to discuss it more in detail after discussing it briefly with Law the day before. In their conversation, Mani told Taylor that if she and Perry “had concerns about the bid scoring, then the Governor’s office had concerns as well.”

Prior to concluding the call, Mani arranged to meet with Taylor the next day. However, she later called back to cancel the meeting saying “the Governor’s office did not want to tell [the Department] what to do.”

In the follow-up call, Mani reportedly told Taylor the current contract was extended to the Arnold Agency for an additional 30 days, and David Tincher, director of the state purchasing office, was willing to meet with her to discuss any concerns she and Perry had with the scoring process.

After she received word from Taylor on July 11 Tincher was interested in speaking with them, Perry says the next day she attempted to discuss the matter with Fucillo. However, he said he would wait until July 13 to discuss it during a scheduled conference call.

According to the suits, Fucillo, who was working in Fairmont that day, delayed anymore discussion of the contract until the following Monday. Also, he repeated Keefer’s and Rosen’s concerns about interfering with a state contract.

Instead to discussing the contract, Taylor and Perry maintain on July 16 Fucillo had them escorted out of the office by security, and placed on “administrative reassignment.” Though still paid, Taylor and Perry were to work from home and “prohibited from calling employees in the workplace other than Human Resources Director, Harold Clifton.”

Also, their work cell phones and laptops were confiscated, and their access cards and e-mail accounts blocked.

Sometime after their reassignment, Taylor and Perry allege either Fucillo, Keefer or Rosen initiated a complaint against them with the Department’s Inspector General’s Office. This complaint, they say, was “undertaken in bad faith, with malice and with the intent to retaliate and engage in reprisal against [them] for their actions as whistle-blowers.”

In their suits, Taylor and Perry aver they voluntarily cooperated with the IG’s investigation. Despite their cooperation, they allege Fucillo, Keefer or Rosen leaked information to the media of a search warrant issued related to the investigation, and the possibility of forthcoming criminal charges.

In their suits, Taylor, who’s worked at DHHR since Sept. 15, 2011, and Perry since March 15, 1999, have “never been subjected to any disciplinary actions, adverse performance reviews or other negative employment-related actions of any kind” until the July 16 administrative reassignment.

Along with violation of the state whistleblower statute, Taylor and Perry make claims for, among other things, invasion of privacy, and gender discrimination. They allege Fucillo’s, Keefer’s and Rosen’s actions have caused them “emotional distress, mental anguish, embarrassment, humiliation, and damage to [their] professional reputation[s].”

They are represented by Parkersburg attorneys Walt Auvil and Michelle Rusen. The cases are assigned to judges James C. Stucky and Jennifer Bailey.

Kanawha Circuit Court case numbers 12-C-2029 (Taylor) and 2031 (Perry)

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