LEWISTON — The state may have a difficult time recovering any of the more than $500,000 it has paid a private consultant to develop a study and analysis of Maine’s welfare system following the revelation that parts of the study contained plagiarized material, a Maine law professor said Wednesday.
Gov. Paul LePage has said the state has stopped paying welfare consultant Gary Alexander and may ask the consultant to refund the state’s money for the work his Rhode Island-based company was contracted to do.
LePage’s administration authorized the $925,200 no-bid contract in September 2013 with Alexander, the former public welfare director for the states of Pennsylvania and Rhode Island, on the basis that Alexander was “uniquely qualified” to do the work.
Under Maine law, state agencies can issue no-bid contracts when the vendor doing the work has a unique capability or experience to do work that no other entity is capable of doing.
Gerry Petruccelli, a University of Maine Law School professor who has specialized in business and contract law, said Wednesday the language in the contract between Alexander and the state was “fuzzy” enough that the state may have little legal recourse.
Stopping any additional payments and terminating the state’s contract with Alexander may be the state’s best option, he said.
“The language defining what he was supposed to do was not particularly tidy,” Petruccelli said of the state’s contract with Alexander.
But whether the state would legally be able to demand a refund would depend on whether it could show the work provided by Alexander and his consulting firm was essentially without value, Petruccelli said.
The plagiarism issues with the report may be a basis for arguing the Alexander Group did not do what it said it would do, he said.
Lawmakers in the Legislature’s Democratic majority passed a bill this year that would have terminated Alexander’s contract after the consultant failed to meet several “target due dates,” but LePage vetoed that legislation.
Lawmakers who voted to sustain the veto said they were doing so largely because the Legislature was overstepping its role by usurping the executive branch’s unique authority to enter into contracts on the state’s behalf.
But on Wednesday, lawmakers who had previously defended Alexander and his company’s work said they were in agreement with LePage.
Under the contract, the Alexander Group was being paid monthly installments with additional payments being made once specific portions of the study were delivered to the state. These so-called “deliverables” came with lump-sum payments but the contract did allow the state to withhold up to 40 percent of the payment until officials were satisfied with the work. The contract was amended in April to give the Alexander Group an additional two months to complete the final portions of its report, pushing a May 15 due date to July 15.
The contract was administered by the Maine Department of Health and Human Services, but was authorized by LePage’s office.
DHHS Commissioner Mary Mayhew has defended the work of the Alexander Group, saying Alexander was “uniquely qualified” to do the work because of his experience in Rhode Island, where he secured a waiver allowing that state to participate in a one-in-the-nation Medicaid program approved by the federal Centers for Medicare and Medicaid.
In a statement issued earlier this month, Mayhew wrote, “While we do not excuse errors in the report, we are also concerned that the media and Democrats have chosen to politicize punctuation over policy, instead of evaluating these critical reform recommendations on their merits.”
Mayhew said the report “brought forward a number of key policy issues and recommendations that need to be discussed, and we will continue to use this resource as a management tool to evaluate the various programs in our organization.”
The study originally was to be delivered in five parts with “target due dates” set for each portion of the report. The Alexander Group delivered its second installment of the study earlier this month and while the consultant met its due date of May 15, it was soon discovered that large portions of the report had been lifted from previously published studies conducted by organizations other than the Alexander Group.
Alexander acknowledged the problems and said the group would re-submit the report to correct what he characterized as attribution errors.
Specifically, the report failed “to ensure intended footnotes were included,” Alexander wrote. “We regret the error and offer our sincere apologies. Such usage is never acceptable, and appropriate checks are being put in place to ensure that this unfortunate outcome is never repeated.”
LePage, who in January refused to make public the first installment of the report after it was delivered days past its “target” date of Dec. 1, 2013, has now said he’s looking into recovering some of the payments already made.
Officials with the Centers for Medicare and Medicaid Services in Boston referred all questions on the use of federal funds to pay Alexander to the Office of the Inspector General.
John Martins, a spokesman for DHHS, confirmed Wednesday that of the $501,760 that Alexander had been paid, about half of it — $249,185 — was federal funds.
Phil Coyne, assistant special agent in charge of the federal Office of the Inspector General, Health and Human Services regional office in Boston, said investigators would review the state’s contract with the Alexander Group to determine whether the federal funds used to pay the consultant were used appropriately.
Tim Feeley, a spokesman for Maine Attorney General Janet Mills, said Wednesday that Mills’ office did not assist the administration in drafting the contract and had not been contacted for advice on how to proceed, but was standing by and was ready to assist the governor’s office upon request.
Democratic leaders in the Legislature sent a letter to LePage on Wednesday asking him to detail the state’s legal options.
Co-signed by Speaker of the House Mark Eves, D-North Berwick, and Senate President Justin Alfond, D-Portland, the letter reiterated concerns that the contract should have had greater public scrutiny prior to being inked.
“From day one, the Alexander contract has been highly questionable,” the legislative leaders wrote. “The no-bid contract received no public review, no opportunity for legislative oversight and no adequate vetting of this contractor. Worse, it used federal funds intended to help struggling families and hungry children. This is truly a case of egregious fraud, waste and abuse of taxpayer dollars.”
Adrienne Bennett, LePage’s press secretary, said issues with the Alexander Group’s work was being highlighted by Democrats in advance of their state convention in Bangor this weekend. She said LePage was working to get to the bottom of the problem, and last week said he would cancel the contract if he determines that action is warranted.
“President Alfond and Speaker Eves are a week late to the party,” Bennett wrote in a message to reporters. “The governor will not allow politics to interfere with getting to the bottom of these allegations.”
Republican leaders in the Legislature backed LePage on Wednesday.
Senate Minority Leader Mike Thibodeau, R-Winterport, issued a statement saying he had reached out to LePage’s office and had been “reassured they are taking these allegations very seriously, are taking appropriate steps to look into their validity and considering the appropriate course of action going forward.”
House Minority Leader Ken Fredette, R-Newport, said Wednesday he was urging his Democratic colleagues to exercise patience “in terms of letting the chief executive deal with evaluating the report in light of the contract and make a determination as to what his course of action is going to be.”
Fredette said he believed LePage was in the process of seeking legal advice and would likely make the correct decision on what to do.
Fredette said the issues with plagiarism in the report did not lend to the work’s credibility, but that didn’t mean LePage was wrong to reach out to a consultant to look for efficiencies within Maine’s welfare programs.
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