DHS settlement amended by Contingency Review Board, details undisclosed
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Published: 29-Dec-2011

At the state Capitol in Oklahoma City, the Contingency Review Board today (Thursday, December 29) amended and then approved an amended settlement agreement in a long-running lawsuit against the Oklahoma Department of Human Services (DHS). The board consists of Governor Mary Fallin, President Pro Temp Brian Bingman of Sapulpa and House Speaker Kris Steele of Shawnee. 

DHS and other parties to the litigation must accept the amended settlement before it is binding. The draft accord had passed one round of review by several parties, including the “Children’s Rights” group that has led the litigious attack on the troubled agency, in the case DG vs. Yarborough. 

The Children’s Rights organization, which is based in New York, has contended DHS inadequately monitors foster children, putting them at risk of harm. The agency has faced a wave of criticism for its handling of child protective services. 

The commission that governs the agency faced increasing critical scrutiny earlier this year for inattentiveness to the litigation and for open meetings’ violations

To gain approval, the amended draft accord, which was revised in an executive session of the CRB, must now be pressed anew through the route that brought the possible settlement to the CRB. The accord is subject to judicial review, as well as agreement of the contending parties. 

Further, legitimacy of the CRB’s involvement is being challenged by Oklahoma City attorney Jerry Fent, a perennial and often effective critic of government practices. 

Thus the draft agreement is merely the start of another round of scrutiny. If a binding agreement is not reached, the case could still go to trial in February (a preliminary hearing is slated for January 6). 

Speaker Steele, who has been a critic of the agency and an advocate of significant changes in the agency’s governance and practices, said, “This is a golden opportunity to improve the agency under Oklahoma’s terms instead of a court’s terms. I’d like to thank Attorney General [Scott] Pruitt and our DHS commissioners for their leadership in steering this process to a path that is truly in the best interest of Oklahoma, its taxpayers and its vulnerable citizens. Make no mistake: This is a good day for Oklahoma.”
President Pro Tem Bingman, in a statement sent to CapitolBeatOK, commented, “There is no obligation we ought to take more seriously than the responsibility to protect the most vulnerable among us - particularly children in heartbreaking situations beyond their control.  The most important thing in this settlement agreement is a focus on improving the quality of services provided for the children of Oklahoma.

“Today's vote to approve the settlement agreement is a step in the right direction, and still must be approved by U.S. District Judge Gregory Frizzell.  Like all Oklahomans, I am eager for Department of Human Services officials, state-elected officials, and the legislature to work together for the benefit of Oklahoma's children."

After the executive session, which lasted a bit more than one hour, the board returned to open session. Gov. Fallin pointed out, “no votes were taken in closed session.” After return to open session, Sen. Bingman moved, and Speaker Steele seconded, approval of the settlement, as amended. The motion carried and the panel then adjourned.

In a brief discussion with reporters, Governor Fallin said that while the accord is subject to consent from parties in the litigation, she regards the draft accord as “a positive step.” 

She reflected, “All parties have negotiated in good faith.” Concerning the validity of CRB actions, Fallin said state officials “don’t believe [Fent’s] analysis is correct.”

Fallin has been carefully critical of DHS’ performance since assuming office last January. This fall, she named two new members to the commission that governs the agency – former Oklahoma County District Attorney Wes Lane and businessman Brad Yarborough. Soon after his appointment, Yarborough was elected chairman of the DHS commission. 

Attorney Fent’s challenges to the CRB’s practices have been successful in at least two cases. Further, state Rep. Mike Reynolds, an Oklahoma City Republican, argues the panel impermissibly mixes executive and legislative powers in a single board. 

In a 2007 state Supreme Court case (103714), “Fent vs Contingency Review Board,” a majority of the justices found “The Legislature cannot participate, either directly or through administrative boards having legislators as members, in the administration of funds appropriated by enacted legislation.” The court concluded CRB’s involvement in administration of funds constituted “a legislative usurpation” of executive powers.

In “Fent vs. Fallin” (2011 case 109770), the court struck down the Oklahoma Quick Action Fund due to the involvement of legislative leaders in “approval of an expenditure from the fund.” 

Additionally, Reynolds points to a 1982 opinion from Attorney General Jan Eric Cartwright which found that “a committee consisting of Legislators, may not be authorized by legislation to approve or reject grant applications.”

However, defenders of the CRB note the fact situation in the current DHS settlement agreement is different and, in legal parlance, “distinguishable” from other cases.

Discussing the possible settlement with reporters, Sheree Powell, the communications coordinator at DHS, predicted a positive and “very unusual” resolution of the case, although she declined to provide any details. In response to questions from CapitolBeatOK, she said she has not seen the revised draft amendment.

Powell said, “There is no perfect child welfare system.” She echoed frequently reported views of DHS Director Howard Hendrick, that DHS staff needs to be paid more and case workers need smaller case loads, and higher pay for foster parents and therapeutic homes.

In this month’s regular meeting of the commission, Hendrick said the Legislature should approve pay raises for agency workers, and reduce employee contributions to the state retirement system. 

Responding to the views of some critics that the agency is top heavy with management, Powell defended DHS performance, saying operations are “very efficient.” She said child protective work is “very stressful.” She said the full DHS commission should be able to consider the amended draft settlement next week.

Director Hendrick told reporters today he estimated the agency has spent $7 million defending its practices in the litigation. Costs have included attorneys’ fees, expert witness fees and other expenses.

Hendrick’s float of the idea to reduce pension system payments to finance pay hikes for DHS employees has attracted criticism from some. Hendrick said he could not address specific aspects of the accord until, and unless, a final agreement is reached. He made it clear the agency was willing to litigate to defend its practices, but that he hoped an agreement could be reached. 

In an interview with Oklahoma Watchdog earlier this month, state Rep. Randy McDaniel, an Oklahoma City Republican, said this is not the time to curb pension contributions. While sympathetic to pay hikes for state workers, “we cannot do that on the back of the pension system.” 

Linda Terrell of the Oklahoma Institute for Child advocacy said her group was “optimistic” at news of draft settlement, saying “significant reform” and possible privatization of “certain pieces of foster care,” combined with “wise investment of taxpayer dollars,” could improve performance at the agency.

In a statement sent to CapitolBeatOK, Terrell also took a shot at proposals to reduce state income tax rates, saying she opposed “cutting taxes for the wealthiest among us” at the expense of “vulnerable children.” 

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