Monday, September 27, 2010

The Dickman Case: Blumenthal Breaks a Butterfly On The Wheel

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.
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