State attorneys must testify about what went into the decision to abruptly cancel a nearly $200 million Medicaid contract, 19th Judicial District Court Judge Tim Kelley ruled Tuesday.
Client Network Services Inc. sought to depose Jindal administration lawyers as well as state assistant attorney generals, arguing that “critical details” about the decision to terminate “remain murky.”
“We want to ask about events and discussions leading up to the decision,” CNSI attorney Michael McKay told Kelley.
Commissioner of Administration Kristy Nichols previously testified she canceled the contract based on the advice of counsel, and had no independent knowledge of the situation, McKay said. “There’s no other way to get to the information, but to go to the lawyers,” he said.
“We do not know why the decision was made so hastily,” McKay said. “We are entitled to know what you (lawyers) knew that led to the recommendation.”
Kelley dismissed arguments that attorney-client privilege should bar such testimony.
He said the advice of counsel reason given by Nichols for the state’s termination of the CNSI contract opens the door for the lawyers being deposed.
“She (Nichols) basically said ‘I did what they told me to do.’ If the decision-maker says somebody told me to, the fact that someone happens to be an attorney” does not make difference, Kelley said. “What facts did they have? On what facts did they make a decision.”
CNSI sought to depose Elizabeth Murrill, Nichols’ then executive counsel; Lesia Warren, then-administration general counsel; Thomas Enright, Gov. Bobby Jindal’s executive counsel; and assistant attorney generals Trey Phillips and Rick McGimsey in connection with a civil case filed against the Jindal administration that seeks damages for wrongful contract termination.
The administration ended the Medicaid claims processing contract in March 2013 after word surfaced of a federal grand jury probe into its award. Nothing happened on the federal front. But a special state grand jury indicted former state Department of Health and Hospitals Bruce Greenstein on a series of perjury charges related to his role in the contract’s award.
Baton Rouge lawyer Richard Zimmerman, who represents the Division of Administration, said attorney-client privilege is protected and lawyers should not be required to testify about their involvement in the decision-making. He also said the administration relied on the advice of the attorney general.
“How are you going to prove your case, if you don’t bring forth the information counsel utilized in support of the decision?” Kelley asked.
“To prove the state had good cause, you don’t look at the information available on the day it was terminated,” Zimmerman said. He said additional reasons can be learned later.
Zimmerman noted an April 26, 2013, letter to CNSI detailing reasons for the termination of the Medicaid claims processing contract, including alleged improper communication between Greenstein and CNSI executives and a change in bid requirements that allowed the firm to participate.
“They know the reasons. We gave them a letter that stated the six reasons,” Zimmerman said. “It doesn’t make any difference whether the attorney general or the commissioner knew on the day of the termination all the facts in the letter.”
Administration lawyer Jimmy Faircloth said CNSI was grandstanding. “They do not need to go there,” Faircloth said.
Follow Marsha Shuler on Twitter, @MarshaShulerCNB. For more coverage from the State Capitol, follow Louisiana politics at http://blogs.theadvocate.com/politicsblog/.