WV Delegate Steele shocked DHHR bypassed lower-cost firms in foster care lawsuit

CHARLESTON, W.Va. – Delegate Brandon Steele, R-Raleigh, today said after reviewing bid documents he is shocked the state Department of Health and Human Resources did not give more consideration to lower-cost, in-state law firms to represent the agency in a federal class action lawsuit involving the state’s foster care system.

Delegate Steele on Nov. 5 announced he would be seeking documents related to the selection of Washington, D.C.-based law firm Brown and Peisch to represent the state in the case at a rate of $575 an hour for legal fees.

On Nov. 14, he received a response to a Freedom of Information Act request to the Secretary of the Department of Health and Human Resources seeking documents related to the selection of Brown and Peisch as counsel for the State in the case of Jonathan R. v. Jim Justice, in his Official Capacity as the Governor of West Virginia; et al. (Case No. 3:19-cv-00710) filed in the Southern District of West Virginia.

“While I am still reviewing the documents in detail, I must say that I am astounded at what I have found so far concerning the hourly rates of the firms that responded to the request for proposals in this case,” Delegate Steele said.

Based on established procedures, the DHHR used the bid process through the state Attorney General’s Office to solicit requests in this case. As a result, the office received five responses to the request, known as RFP #85.

Those responses and the hourly rate bid are as follows:

  • Barnes and Thornburg, LLP (offices in Indianapolis, Ind.) $645, $675, $495 per hour from member attorneys; $225 to $395 per hour for paralegal support and associate attorneys.
  • Brown and Peisch, PLLC (Washington, D.C.) $575 per hour.
  • Bailey & Wyant, PLLC (Charleston, W.Va.) $200 per hour.
  • Pullin, Fowler, Flanagan, Brown and Poe, PLLC (Beckley, Charleston, Morgantown, Martinsburg, W.Va.) $225 per hour.
  • Hissam, Forman, Donovan and Ritchie, PLLC (Charleston, W.Va.) $260 per hour

“Of note to me is not only are the West Virginia firms significantly below the cost of the Brown and Peisch firm, but all three are highly qualified to handle this litigation, several have represented DHHR in the past and achieved favorable resolutions for the state, and all three have significantly larger staffs that are better equipped to handle class action cases within the state of West Virginia,” Delegate Steele said.

Delegate Steele also said internal communications turned over in the FOIA request regarding the law firm selection caused him great concern.

“I am severely disappointed in the myopic selection process displayed by the DHHR’s internal communications, which reveal precious little concern for the significant costs this case could present the state at $575.00 per hour, as well as travel costs associated with utilizing an out of state law firm,” Delegate Steele said. “In fact, it is so myopic that it begs the question of what rational person would spend three times the public funds on out of state representation on a firm that is not even peer rated? Why would the DHHR secretary select this firm at this inflated price when highly rated, highly capable, larger firms are offering to handle the litigation at almost one-third of the cost? The people of the state of West Virginia demand these answers.”

Delegate Steele said the selection also raises eyebrows, considering recent mid-year budget cut request from the Governor’s Office.

“At a time when we are seeking to reduce our state’s budget by almost 5 percent due to budget shortfalls, Secretary Crouch’s office has demonstrated a considerable lack of budgetary restraint,” Delegate Steele said. “This decision could cost our state millions of dollars in unnecessary legal fees paid to beltway insiders with no ties to West Virginia – let alone a West Virginia Law License.”

Delegate Steele said he hopes to speak to Attorney General Patrick Morrisey and the Gov. Jim Justice soon to encourage them to correct this clear error.

“I want to encourage them to select any of the capable West Virginia firms that bid on this representation at a much lower cost, and hold the unelected bureaucracy that is DHHR accountable for the flagrant malfeasance demonstrated by this decision,” Delegate Steele said. “It is incumbent upon the executive branch to control wasteful spending and prevent the kind of government largesse demonstrated by the DHHR in this instance.”

Delegate Steele said he would be happy to provide any of the documents received in response to the FOIA request to any person who wishes to see them. He said interested parties could contact him at brandon.steele@wvhouse.gov, and he will forward them.

“I do plan to prepare follow-up requests to the DHHR secretary concerning this matter,” Delegate Steele said. “I simply cannot accept the rationale put forth by the Secretary, through his proxies, in the media concerning the selection of Brown and Peisch in this matter.”

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