Log Cabin Democrat Local News:DHS worker must serve jail sentence 6/12/98


Published Friday, June 12, 1998

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Friday, June 12, 1998DHS worker must serve jail sentence

State Supreme Court reduces 53-day sentence to only two

Last modified at 11:49 a.m. on Friday, June 12, 1998

By JAN GAUGHAN

Log Cabin Staff Writer

A contempt order by a 20th Judicial District judge against a Department of Human Services manager has been upheld by the Arkansas Supreme Court. But the court significantly reduced the manager's jail sentence and implied her bosses may share the blame.

The ruling, issued Thursday, unanimously affirms that Circuit-Chancery Judge Karen R. Baker was within her power when she ordered DHS on Sept. 30, 1996, to pay for restoring utility services to a Greenbrier family. Failure by DHS to comply for 53 days resulted in the contempt order against Sandi Doherty, area manager for the Division of Children and Family Services at DHS.

A slim majority of the seven justices found Judge Baker's contempt order against Ms. Doherty was justified, with justices C. J. Arnold, Robert L. Brown and J. J. Thornton dissenting. But several justices indicated they believe Ms. Doherty's bosses should have been more accoutable.

In reducing Ms. Doherty's jail sentence, the court said "the ends of justice do not require" the longer sentence and that two days "reflect Doherty's shared culpability in the matter."

Justice Tom Glaze, concurring with the majority opinion, wrote that then-DHS Director Tom Dalton and Supervisor Beverly Jones -- who were served with written notices but failed to appear at a show-cause hearing -- should have been made accountable for DHS' position.

"Unfortunately, by the trial court's failure to compel these individuals' appearance, the trial court sent the mixed signal that only subordinates, and not high-ranking officials, are answerable for department policy that clearly conflicts with state law and the trial court's order," Glaze wrote.

In the dissenting opinion, Brown wrote that he is against "sending a mid-level bureaucrat to jail for following DHS policy. ... I seriously question whether the trial court and this court are punishing the right person. Indeed, this whole affair suggests that Ms. Doherty has been made the scapegoat."

DHS spokesman Joe Quinn said Friday morning he had not heard about the court's decision and declined to comment without having read the ruling. Ms. Doherty referred all questions to Quinn.

Judge Baker could not be reached before press time.

At issue in the appeal was whether Judge Baker, who was then juvenile judge, could order DHS, a state agency, to pay the utility bills for the family of a teen-age girl who'd been missing school because her house was without electricity or running water. Judge Baker issued the order on Sept. 30, but Ms. Doherty refused to approve the payments.

The department tried to pool money for the utilities from local community service organizations and churches but resisted paying out of its own coffers until Nov. 21, when a motion to set aside the order was denied. The bills were finally paid Nov. 25.

In a Dec. 16 hearing, the judge ruled that DHS, through Ms. Doherty, had willfully and intentionally disobeyed the Sept. 30 order for 53 days. Ms. Doherty was found to have committed 53 separate acts of contempt of court and was ordered to serve a day in jail for each act.

In its appeal, DHS maintained the judge's Sept. 30 order contradicted DHS policy for disbursing money and that paying the family's utility bills, which it said totaled more than $1,100, would deplete too much of its $3,000 per year cash-assistance budget for Faulkner County.

At the time the appeal was filed, Gov. Mike Huckabee issued a statement supporting DHS' position. "The state simply does not have the money to be paying large numbers of utility bills," the governor said at the time, noting there were at least 20 families in the county whose water had been shut off for nonpayment.

In Thursday's ruling, the Supreme Court held that "the juvenile court's orders do not have to comply with DHS policy." Moreover, the department had the funds to pay the bills and comply with the order, even if it did not feel that was the best use of the funds, the ruling noted.

Huckabee could not be reached for comment on the court's ruling this morning. "We have not had an opportunity to look at the decision," said Steve Brawner, a spokesman for the governor's office.

The DHS appeal also argued Judge Baker's order violated separation of powers among branches of state government, but the court ruled the department had not sufficiently raised or developed the separation argument and refused to consider its merits.

Both DHS and Ms. Doherty appealed the contempt order. DHS argued that Judge Baker's Sept. 30 order was too vaguely worded. The order directs DHS to "provide adequate housing for this family, including facilities with water and electricity."

At the Nov. 21 hearing, after a DHS worker testified the department was making an effort to follow the order by seeking funds from other sources, Judge Baker said, "for the purpose of clarification, if any is needed, the Department is to provide cash assistance to the family for the purposes of establishing electricity and water to the home in which they are currently living or providing other adequate housing."

The Supreme Court rejected the vagueness argument. Justice Annabelle Clinton Imber wrote in the majority opinion that, "Although the Sept. 30 order does not mention cash assistance, DHS knew it was to restore the utilities within a reasonable amount of time."

DHS also argued that attempts were made throughout the 53 days to comply with the order through other means and that it never intended to disobey the order. The justices disagreed, saying DHS knew it was to pay the bills with its own funds if that was the only way to get the utilities turned on.

The court also rejected arguments from Ms. Doherty that she should not be held in contempt of the Sept. 30 order because it didn't mention her individually and she never received written notice of a Dec. 11 show-cause hearing. The justices ruled Ms. Doherty understood the duties the Sept. 30 order imposed on her and notification by telephone of the show-cause hearing had been sufficient.

The court also rejected a claim by both DHS and Ms. Doherty that Judge Baker was biased and should have excused herself from the contempt hearing. Judge Baker's remark Dec. 10 in chambers that she was going to have to put Ms. Doherty in jail, which she made upon hearing that Ms. Doherty wasn't coming to a hearing the next day, "certainly evinces displeasure and frustration" but was not enough to warrant excusing herself, the justices held.

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