Agency, witness in gay foster parent case in pay battle
BY CHARLOTTE TUBBS ARKANSAS DEMOCRAT-GAZETTE
A seven-year legal battle that struck down a state policy banning gays from becoming foster parents concluded in June. But while the Department of Health and Human Services defended the state in court, the agency became embroiled in another dispute: a feud with its expert witness. Quietly, a two-year battle brewed behind the high-profile court case between the department and the witness it hired, George Rekers. The dispute involved department requests for billing explanations, Rekers’ accusations that the department’s attorney behaved unethically and department accusations that Rekers conducted unnecessary research. Although billing disputes like this between the department and expert witnesses it hires are uncommon, this one sheds some light on the time and money the state spent, as well as its preparations for the case, which drew national attention. Documents also show that Rekers, a college professor from the Southeast, felt the state turned on him after he spent nearly six months researching and preparing for trial. State officials felt that Rekers turned on them, as well, when they received a $165,000 bill, far exceeding what they anticipated. Department administrators spent months after the court case ended trying to reach a settlement with Rekers’ former employer, the University of South Carolina. Although a $60,000 settlement was reached in November, the issue of whether gays should be eligible to become foster parents is far from settled as state lawmakers prepare to pursue legislation that would once again ban gays from becoming foster parents. In 1999, the state’s Child Welfare Agency Review Board adopted a policy that banned the placement of foster children in homes with gay adults. The American Civil Liberties Union represented four Arkansans who filed suit against the board. Pulaski County Circuit Judge Tim Fox ruled in December 2004 that testimony did not show that gay foster parents posed a threat to the health, safety or welfare of children and concluded that the board based the regulation on a sense of “public morality,” which exceeded the scope of its authority. The Arkansas Supreme Court upheld the ruling earlier this year. Rekers said that the state lost the case because Kathy L. Hall, a former attorney with the agency, did not allow him to present adequate supporting evidence that the policy protected the health and welfare of foster children. Hall said she argued that morality was a part of children’s welfare. Although the state lost the case, Hall said she prevailed on the issues argued by the ACLU — that the policy violated the
equal protection clause of the 14th Amendment of the U.S. Constitution and that gay people have a right to privacy. “I’m happy with the way that I handled that case, and I’m happy that I won it on its merits,” Hall said. “Obviously, I’m disappointed that I lost it on a technicality.” The case went to trial in Pulaski County Circuit Court in March 2004, but was postponed from March until October that year after the death of the state’s first expert witness, Little Rock psychiatrist Charles Gist. In April, Hall asked Rekers, a psychologist and college professor who at the time lived in South Carolina and who had previously served as an expert witness in a similar case in Florida, to testify in support of the Arkansas board’s policy, agreeing to pay him $330 an hour. Health and Human Services Department spokesman Julie Munsell said the department regularly uses experts and aims to hire the best ones possible for each case. Professional and academic requirements are casedependent. “There are times when academic skills are important and sometimes experience is more important,” Munsell said. The attorney who handles a case makes that decision, consulting with a supervising attorney and the agency division involved in the litigation, she said. There is no set fee schedule for expert testimony, but the chief financial officer of the division or divisions involved in the case must approve the fee, as well as the chief financial officer of the department. Usually the division or divisions involved in the case pay the expert’s fees, which may range from $150 to $350 an hour, she said. The department does not have a specific budget for hiring expert witnesses, and Munsell could not determine how much it spends on their fees. She added that the department felt Rekers’ $60,000 settlement was “more than adequate compensation” for the services he provided to the state. In October 2004 Rekers testified at the resumed trial. During a break, Hall told Rekers that she had volunteered her legal services in the past for the ACLU, specifically in a 2003 case involving a gay student at Jacksonville Junior High. Hall began work on the department’s case in late September 2003 after the Jacksonville case ended, she said. Rekers said Hall’s statement “surprised” him and prompted him to contact a Virginia attorney who was an acquaintance of Rekers’, Ty Clevenger, to inquire whether Hall’s work for the ACLU constituted a conflict of interest. Clevenger filed a complaint against Hall with the Supreme Court Committee on Professional Conduct, which oversees the conduct of the state’s licensed lawyers. He also sent a copy of the complaint, which alleged conflict of interest and sabotage, to Judge Fox. Rekers also filed a complaint with the committee in 2006. In October, the committee’s executive director, Stark Ligon, said in a letter to Clevenger that the grievances against Hall did not provide sufficient information to prompt any action by the professional conduct panel. (Clevenger provided the letter to the Arkansas Democrat-Gazette.) Clevenger and Rekers have requested a review of Ligon’s decision by the reserve panel of the Committee on Professional Conduct. The five members of the panel will decide whether to affirm the dismissal of the complaint, conduct further investigation or to proceed with a formal complaint. Hall said she did nothing wrong in the case and is confident the panel will not find anything to the contrary. BILLING DISPUTE As Clevenger pursued his complaint against Hall in 2004, Rekers attempted to collect his fees from the state for his work as an expert witness. Hall said Rekers’ bill was “exorbitantly high” and later determined that Rekers billed for an average of about 20 hours’ work a week over about six months. That’s more time than she spent preparing for the case, she said. Rekers said that in the Florida case, the state accepted and promptly paid his initial bill, which was compiled in a similar format and totaled roughly half of what he billed Arkansas. His original bill of $165,000 submitted to Arkansas grew to more than $200,000 as he added late fees and other charges for the additional billing documentation requested by the department. On Dec. 13, 2004, Lee Thalheimer, former chief counsel for the department, said in a letter to Rekers that “we believe your testimony in the areas we requested was both correct and persuasive. However, we are confused about a great deal of your research and why it was done.” Rekers said that the research he conducted was within the parameters set by Hall. On Jan. 19, 2005, Rekers wrote to former Department of Health and Human Services Director Kurt Knickrehm, telling him that he believed that Thalheimer and Hall were withholding his payment because Rekers had exposed Hall’s “conflict of interest and her questionable professional conduct.” Knickrehm said in a letter dated the same day that Hall and Thalheimer were not retaliating. In another letter, Thalheimer told Rekers that the state had assumed that Rekers was already an expert, and that it did not hire him to become an expert. Rekers said he did additional research because Hall chose not to use his own research on sex identity, and she told him not to research certain areas after he had already done so. Also, he said an expert is someone who knows where to get the latest research articles. In a June 28, 2005, letter to Thalheimer, Hall said Rekers had overbilled the agency, that his billing statement conflicted with other statements he had made about the nature of his research and that he spent too much time on certain tasks. She also said he should not be paid because of the ethics complaint filed against her in 2004. Hall said in the letter that after Rekers had testified, he had Clevenger write the court directly and ask that she be removed from the case. “I consider this to be a breach of Rekers’ contract in that he compromised my case while taking negative action against me and the case while trial was pending,” she said in the letter. “I don’t see why we should pay him anything.” Rekers said he did not ask Clevenger to make a complaint. Rekers, who has retired from the University of South Carolina and moved to Miami, said the lack of payment caused him financial hardship. While a portion of the original bill’s charges would have gone to the university, the portion that was due to Rekers would have represented almost half of his annual compensation, about $100,000 in salary and up to $100,000 from fees and consulting work, he said. Rekers and Hall said they plan to seek further legal action to resolve their grievances — Rekers to collect the rest of his bill and Hall to collect damages for defamation. Hall said she should have given more specific direction to Rekers and should have researched him further before hiring him as an expert witness, but does not regret how she tried the case.