In DHS lawsuit settlement, “co-neutrals” not subject to open records provisions
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Published: 06-Jan-2012

Three “co-neutrals” named as arbiters in the Department of Human Services (DHS) settlement announced this week will not be subject to Oklahoma's open records and government transparency provisions. CapitolBeatOK's review of settlement materials led to this conclusion, which has been confirmed by a DHS official. 

All contending parties have approved settlement of the lawsuit, and judicial approval of the accord is anticipated. Implementation of DHS improvements envisioned in the accord could cost taxpayers hundreds of millions of dollars. However, the settlement does not explicitly mandate increased expenditures by the Legislature.

“Co-Neutrals” named in the settlement are Kathleen Noonan, Kevin Ryan and Eileen Crummy, all non-Oklahomans. Their expenses will be paid by DHS. The agency will submit to the co-neutrals plans which will, in the words of a summary of the settlement provided to CapitolBeatOK, “identify specific structural and/or organizational changes necessary to implement the strategies and the anticipated cost of implementation.” 

The agreement provides, “The Co-Neutrals are not a state or local agency or an agent thereof, and accordingly the records maintained by the Co-Neutrals shall not be deemed public records subject to public inspection. Neither the Co-Neutrals nor any person or entity hired or otherwise retained by the Co-Neutrals to assist in furthering any provision of this Agreement shall be liable for any claim, lawsuit, or demand arising out of the Co-Neutrals' good-faith performance pursuant to this Agreement.

“Except as otherwise required by law, any reports, opinions, or documents used or prepared by the Co-Neutrals or their staff shall be used for the purposes of this case only and may not be used for any other purpose, without the prior written consent of Defendant.”

Concerning the language in the accord (quoted above) Sheree Powell, spokesman for DHS, told CapitolBeatOK, “The language of the first sentence of the first paragraph was not requested by the Department of Human Services.

“The final sentence is intended to prevent use of the co-neutral reports, opinions, and documents in unrelated litigation and disruption of the work of the co-neutrals. [DHS] statistical reporting is likely to be available under the Oklahoma Open Records Acts, if the reports do not contain case specific information which is confidential by law.”

Asked directly about review of working materials from the co-neutrals, Powell confirmed “work product” of the trio will not be available for regular review by CapitolBeat and other journalists. 

Concerning expenses, Powell said, “No details have been memorialized or negotiated with the co-neutrals. There is presently no agreement about the 'budget and staff' as mentioned. The agreement provides that 'reasonable and customary fees' and 'actual expenses' will be paid. Developing an agreement that addresses these issues will be a priority over the next several weeks.”

DHS staff faces February 12 and March 30 deadlines for submission of a draft plan for improvement. 

The trio of co-neutrals were selected jointly by DHS officials and “Children's Rights,” the New York litigating group that brought the lawsuit. Children's Rights could receive substantial legal fees, subject to judicial approval. 

An earlier draft of the settlement, agreed to by the contending parties, was revised during executive session at a meeting last week of the Contigency Review Board (CRB), consisting of Governor Mary Fallin, House Speaker Kris Steele and Senate President Pro Temp Brian Bingman. Steele has been a strong critic of the agency's performance. Gov. Mary Fallin named two new members to the Commission last fall, including the new chairman, Brad Yarborough.

The revised settlement document circulated quickly among all parties early this week. The final step came late Wednesday, when the Human Services Commission, which governs DHS, approved the settlement in a 6-3 public vote.

Approval of the settlement is now pending before U.S. District Judge Gregory Frizzell in Tulsa, where the litigation began.

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