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Officials seek dismissal of whistleblower suits

Senior officials at the state Department of Health and Human Resources want a circuit court judge to dismiss whistleblower lawsuits brought against the department by two other senior officials.

The lawsuits were filed in the wake of a controversial mid-July shakeup of DHHR's senior staff by acting Secretary Rocco Fucillo.

Fucillo barred three DHHR employees from the agency's offices and put them on paid reassignment.

The three questioned the handling of a multimillion-dollar marketing contract that DHHR eventually awarded to the highest bidder. The trio includes the DHHR's deputy secretary for legal affairs Susan Perry, assistant secretary John Law and general counsel Jennifer Taylor.

Perry and Taylor have since filed lawsuits against DHHR and blasted the department for a "track record of errors" that the two had to correct or tried to keep the agency from making.

The suits took aim at Fucillo, deputy secretary Warren Keefer and purchasing director Bryan Rosen.

But DHHR argues Perry and Taylor are not whistleblowers in court filings made this week. The department wants Kanawha County Circuit Court Judge James Stucky to dismiss Taylor and Perry's suits.

Lawyers at Charleston law firm Bailey & Wyant represent DHHR.

DHHR argues Perry and Taylor haven't been retaliated against because the two have been able to keep their titles and their pay.

According to DHHR, the "only limitations placed on their ability to work is the prohibition from entering their offices, must work from home, and may only call (DHHR's human resources director)."

DHHR has paid Perry, Taylor and Law more than $80,000 to work under those conditions. Law is not participating in the whistleblower lawsuit.

Perry and Taylor's attorney, Parkersburg-based Walt Auvil, said he still believes his clients' actions were whistleblower actions protected by state law.

The marketing contract, estimated to be worth $3.5 million, was awarded to Ohio-based Fahlgren Mortine for one year's work. To pick Fahlgren, DHHR passed over three lower bidders.

When it came to the marketing contract, the Perry and Taylor said they were so concerned about the decision to award the contract, they warned other DHHR officials they could not go to court to defend the contract if it was awarded to Fahlgren and challenged by one of the other bidders.

DHHR also argues Perry and Taylor never accused anyone of "waste or wrongdoing" - even though the two questioned why the contract was going to the highest bidder.

"They were just questioning the (contract evaluation) committee's judgment not its integrity," DHHR said in its response.

DHHR's defense has two tracks: Besides trying to get the whistleblower lawsuits thrown out, the agency's inspector general has given a report to Kanawha County Prosecutor Mark Plants.

The report mirrors an earlier search warrant that accused Law, Perry and Taylor of attempting to illegally interfere with the awarding of the contract. Plants is still deciding whether there is enough evidence to file criminal charges.

DHHR's response to the whistleblower lawsuits portrays Law as a person with a conflict of interest because of his "close personal relationship" with employees at The Arnold Agency, the Charleston-based marketing firm that held the contract and submitted the lowest bid before the contract was awarded to Fahlgren.

Law made efforts to distance himself from the bidding process because he frequently worked with Arnold. But he later questioned the outcome.

A review of state purchasing documents by the Daily Mail showed a number of judgment calls by an evaluation team gave the Fahlgren a razor-thin victory over The Arnold Agency.

Contact writer Ry Rivard at ry.rivard@dailymail.com or 304-348-1796. Follow him at www.twitter.com/ryrivard.

 


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