Maine legislative committee votes to sue DHHS to enforce its subpoena

Government Oversight Committee members also challenge the role of the Attorney General’s Office in what will be a constitutional conflict between two co-equal branches of Maine’s government

Senate Republican Leader Jeff Timberlake (left), seen above during the Legislature’s Government Oversight Committee (GOC) meeting on Wednesday, Oct. 19, 2022, makes a point about the delays that have occurred during GOC’s investigation of the Department of Health and Human Services and its Office of Child and Family Services. The committee’s investigation began in August 2021, and will likely carry over to the next Legislature. Also pictured are (from left to right) Sen. Lisa Keim, R-Oxford, Sen. Susan Deschambault, D-York, and Sen. Rick Bennett, R-Oxford. (Mike Fern/Senate Republican Office)

STATE HOUSE – On Wednesday, the Maine Legislature’s bipartisan Government Oversight Committee (GOC) voted to enforce compliance with its subpoena to the Maine Department of Health and Human Services for the records of four children who died within weeks of each other in 2021. The decision to make the historic move puts the matter to court and comes on the heels of DHHS Commissioner Jeanne Lambrew’s refusal to turn over the records that were originally demanded through the subpoena in September.

The GOC’s initial request to review the records was in response to the record 34 deaths of children that occurred last year, which marked the deadliest year on record since tracking by DHHS’s Office of Child and Family Services (OCFS) began in 2007. Five of those deaths were homicides that have yet to be added to the 29 already tracked by OCFS.

“We cannot allow our role and authority as the Legislative Branch – the representatives of the people – to be defined by the Executive Branch,” said Sen. Lisa Keim, R-Oxford, who is the Senate Republican lead for the committee. “This step consumes time and resources better allocated to other state needs, and further burdens the courts. DHHS’ refusal to comply with a legally issued subpoena means they’re adding unnecessary load to our overburdened courts and slowing up this process.”

“The Legislature need to turn over every stone to find out what’s broken at OCFS that has led to these repeated tragic deaths of children in state custody,” said Sen. Rick Bennett, R-Oxford, who also serves on GOC. “It is up to the Legislature to define how it functions and not up to the Executive Branch to decide what a ‘Legislative Official’ is – that is for us to determine in how we do our jobs both in this case and going forward.”

The 8-1 vote to enforce the subpoena was followed by subsequent unanimous votes to send a letter from GOC asking the court system to expedite the case and to appoint a smaller group to manage the process. The letter would accompany the filing by Chief Deputy Attorney General Christopher Taub, who is assigned to assist the Legislature. However, the involvement of Attorney General Aaron Frey’s office and its apparent conflict of interest in representing both branches generated concern among several committee members.

“The Attorney General is elected by the Legislature and is in service to the people of Maine. Yet he is making decisions about which side of a given issue he is on and then allocating resources within his own department. I think that is problematic,” said Sen. Bennett. “We should know what the decision-making process is for the Attorney General to decide when there is a conflict between two departments of government and in this case two branches of government.”

Sen. Keim expressed her full confidence in Taub’s integrity and competence, but was also concerned about the role of the AG in these proceedings.

“The AG is elected by the Legislature with a constitutional obligation to represent both the executive and legislative branches.” said Sen. Keim. “Attorney General Frey has chosen to be on the side of DHHS in choosing to defend the executive branch rather than the people’s own representatives – the Legislature. That is the choice he’s making; and I believe that’s a political choice.”

Senate Republican Leader Jeff Timberlake, also a member of GOC, expressed during the hearing his frustration in how long the process has taken to get answers from DHHS, especially since the investigation began in August 2021. While OPEGA received the confidential case files from DHHS on Oct. 7, the agency wasn’t able to compile any information in time for the meeting. “I think it’s important that we enforce the subpoena, but I don’t think it’s going to happen in a timely enough manner. It’s going to end up in the next Government Oversight Committee with the new Legislature and they’ll have to deal with it then,” said Senate Republican Leader Jeff Timberlake, R-Androscoggin. “We need to know what happened in DHHS regarding these deaths, but we’ve been at this for over a year now. This has taken way too long.”