A Kanawha County judge refused to reinstate a former administrator with the state Department of Health and Human Resources on Friday.
Susan Perry, a former deputy secretary for the DHHR, was fired on June 28 after being on administrative leave for about a year.
Perry and former administrator Jennifer Taylor are suing the DHHR, its former acting secretary Rocco Fucillo, deputy secretary Warren Keefer and purchasing director Bryan Rosen, contending they were victims of illegal reprisals for their efforts as whistleblowers.
Perry’s attorney, Walt Auvil, asked Kanawha Circuit Judge James Stucky to reinstate Perry on Friday and grant her back pay before the completion of the lawsuit.
In Perry’s motion for immediate reinstatement, she says that the state officials who fired her didn’t have legal authority to do so, because state lawmakers never approved Fucillo’s role as acting secretary.
Fucillo’s name was never given to senators during the 2013 legislative session following his appointment as acting secretary, which means any decisions he made after April 17 (the last day of the legislative session) last year are null and void, according to Perry’s motion.
Perry contends, “that at the time of her termination, the Governor of the State of West Virginia was the only person who possessed the requisite authority to terminate her employment. Governor Tomblin’s Chief of Staff specifically testified that he did not discuss Plaintiff’s termination with the Governor until after it occurred.”
Perry and Taylor’s lawsuits claim that they, along with DHHR communications director John Law, were fired for raising concerns about inconsistencies in the evaluation and scoring of the bid packages for an advertising contract.
According to the complaints, Perry asked Taylor to review the score sheets for the advertising bid packages to determine whether they could provide grounds for the successful protest of the contract award by any of the bidders, which could delay awarding of the contract and prompt legal costs.
Taylor prepared a spreadsheet comparing each vendor’s response and score for each item on the request for proposals. The spreadsheet was blind, in that the names of the vendors were omitted.
Taylor’s analysis, according to the lawsuit, found major inconsistencies in scoring, with some vendors losing no points for failing to fully provide requested information and work samples, while others had points deducted for the same or similar omissions.
In raising concerns, Taylor described the scoring as “a poster child for arbitrary and capricious,” according to the complaints.
When they raised concerns with DHHR officials, Perry and Taylor were told they could be charged with the criminal offense of interfering with the awarding of a state contract, according to the complaints.
In response, they said they were not concerned about which vendor was awarded the contract, but wanted the process to be conducted correctly so the DHHR could be defended in the event of a vendor protest or lawsuit.
According to the complaints, the issue came up in a July 13, 2012, conference call with Fucillo, who was working out of the DHHR’s Fairmont office, and Fucillo advised he would discuss the matter with them on July 16.
Instead, on that date, Perry, Taylor and Law were placed on administrative leave, barred from DHHR offices, had their email accounts blocked and were prohibited from contacting DHHR staffers at the workplace, according to the lawsuit.
Also, Perry and Taylor allege that Fucillo ordered an investigation by the DHHR Office of Inspector General, “undertaken in bad faith, with malice, and the intent to retaliate and engage in reprisal against [Perry and Taylor] for their actions as whistleblowers.”
The lawsuits contend they were the subject of a “purported search warrant” which they argue misrepresented facts surrounding the RFP review, and which essentially accuse Perry and Taylor of criminal conduct.
A trial date in the case has not yet been scheduled.
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