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Hospital hires Austin firm to fight FOI’s

By Jessica Wilkinson jwilkinson@oaoa.comMay 17, 2019

One of Medical Center Health System’s vice president’s is no longer at the hospital, but whether she quit or was fired, no one will say.

Alison Pradon, interim vice president of communications and marketing and executive director of the MCHS Foundation, said Wednesday Tracy Green’s time of employment with MCHS was from April 30, 2018, to April 4, 2019. Pradon said she did not know whether Green was fired or quit and that they “do not discuss personnel matters.”

What we do know is that the hospital has hired an Austin legal team at Walsh Gallegos to fight off Freedom of Information requests from both CBS 7 news and the Odessa American.

Green was hired as executive director of provider relations and recruitment on April 30, 2018, her personnel file shows. The file was recently released by MCHS through the Austin-based law firm the hospital hired to handle numerous FOI requests. Eight months later, the file shows she was promoted to vice president of provider and community relations and received a nearly $20 an hour raise — from $75.51 an hour to $94 an hour.

“At that time our director of communications, Jacqui Gore, left MCH,” Ector County Hospital District board member Bryn Dodd said. “It was my understanding she was covering that area until someone was hired.”

The Odessa American previously reported Gore, who was vice president of communications and marketing, left MCHS on Oct. 24.

Green’s personnel file shows she was referred for her new vice president position by MCHS President and CEO Rick Napper, who also referred her to her original position when she was hired last year. Both Green and Napper worked for Catholic Health Initiatives Memorial Health in Chattanooga, Tenn., around the same time.

Napper was president of the Chattanooga campus in 2013 and served as executive vice president and chief operating officer for the health system there before taking a position in Bryan as president and CEO of CHI St. Joseph Health in November 2015. He was then hired as the CEO at MCHS in December 2017. Napper recently announced his retirement, effective Sept. 15, after not even a year-and-a-half with the health system.

FOI requests for more information on his employment have mostly been denied with “he is an at- will employee responses” by board members. The hospital district stated in an email “MCH has no documents responsive to this request. Mr. Napper does not have an employment contract with ECHD/MCHS.”

District 5 board member Don Hallmark said the board did approve the terms of employment for Napper and Napper was sent an offer letter with those terms.

“He just went to work off of that email I guess, and he’s been at at-will employee since then,” Hallmark said.

Dodd said the board approved a specific salary and other items, and she remembers negotiating Napper’s terms of employments.

“I assumed there was some kind of document with those terms on there,” she added.

Green’s resume, included in her personnel file, shows she was the director of physician recruitment and relations at CHI Memorial in Chattanooga from 2014 until her employment with MCHS. Her work history on her resume also shows she mainly worked in physician services over the years, largely dealing with recruitment of physicians.

Green’s personnel file also shows she received nearly $14,000 for relocation expenses, and agreed to a stipulation that should she leave MCHS or have a change in full-time employment status within 24 months of employment, she must reimburse MCHS in full.

In an email Napper sent Nov. 28, 2018, to Harvey Hudspeth, interim vice president of HR at the time, Napper stated he wanted to change Green’s position to a VP position and that she would be taking on the responsibility for marketing and public relations.

“This will create two separate Directors in place of Jackie (Gore). One of those will be Marketing and one will bill be Public Relations. These will both be Directors. … I am looking at her (Green) maintaining the current responsibility and adding PR and Marketing,” the email stated.

The OA requested an interview with Napper, but Pradon wrote in an email, “we don’t comment on individual employees so he will not be doing an interview.”

Dodd said the board was unaware of any promotions or pay raises and Hallmark said the board doesn’t discuss those kinds of things.

“We never know about raises and stuff like that,” Hallmark said, adding that is not their role as a board. The board only directly oversees the president and CEO of the hospital.

It is unclear exactly why Green left MCHS and Hallmark said he did not know if she was fired or quit — they just heard she was gone and were not given a lot of information on the matter.

“We were just informed that she was no longer there and that was basically it,” Dodd said. “That’s operational, so we don’t normally have any information, or any details on that stuff because that’s not our role … so unless there’s litigation, we don’t know.”

Dodd said as far as she knows there is no litigation involved.

FIGHTING FOIA REQUESTS

However, there could be potential litigation. The Austin-based law firm Walsh Gallegos that is representing MCHS and the hospital district cited an exemption related to potential litigation in MCHS’ request for an attorney general determination regarding an FOIA request the Odessa American submitted April 22.

The OA’s original request included the following:

>> Copies of any paperwork indicating the reason for Napper’s recent time off.

>> The personnel file of Green, including any complaints or commendations.

>> Any termination letter or separation paperwork or any letter indicating Green’s resignation.

>> Any paperwork or report including commendations or complaints from any person inside or outside of MCHS submitted regarding Napper.

The only information turned over to the OA was Green’s personnel file on May 7.

On Tuesday, an attorney with the law firm, Joey Moore, emailed a copy of MCHS’ request for the Attorney General’s determination on whether or not the rest of the requested information was public.

The law firm’s request for the exception related to litigation stated, “in order for the litigation exception to apply, the district must establish that (1) litigation was pending or reasonably anticipated on the day the governmental body received the request for information; and (2) the information at issue is related to that litigation.”

The letter further stated “litigation is reasonably anticipated (by the hospital) and the information requested is related to the anticipated litigation.”

The first request for exemption from disclosure listed in the letter was that the records requested were “audit working papers.” The letter states, “there will be a prompt investigation of …” and the rest of the paragraph is blacked out, or redacted. After the redaction, it states “the documents at Exhibit 3 constitute ‘audit working papers’ which were prepared and maintained as part of the audit/investigation …” and then the rest of the sentence is also redacted.

Dodd and Hallmark both stated they were not aware of any kind of investigation regarding Green’s employment.

Other requests for exemption from disclosure listed in the letter included attorney-client privilege, inter-agency memoranda, common-law privacy and “informer’s privilege.”

The exception on attorney-client privilege in the letter states that the documents in Exhibit 3 have not been shared with anyone, inside or outside the district, other than MCHS’ Chief Legal Counsel Ellie Bane and her staff and all underlying communications and notes were made for the purpose of evaluating legal issues facing the district.

The exception regarding inter-agency memoranda outlines how “a governmental body’s policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel … A governmental body’s policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body’s policy mission. “

The common-law privacy exception talks about how it protects information “if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and if it is of no legitimate concern to the public,” and the letter goes on to state that all of that applies to information in Exhibit 3.

The “informer’s privilege” exception talks about the government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law, adding that the exception typically applies to law enforcement. The letter states that it can apply to administrative officials with a duty of enforcing particular laws, which may include “quasi-criminal civil laws,” and goes on to say, “the privilege excepts the informer’s statement itself only to the extent necessary to protect the informer’s identity.” It also states that information in Exhibit 3 should be withheld under the informer’s privilege.

The Texas Attorney General’s Office will notify both the hospital district and the OA when a determination is made on whether or not the information should be available to the public.

EXPENSE REPORTS

The OA also requested, in a separate FOIA request, copies of any expense reports submitted for or by Green, as well as any copies of any findings, notes or reports associated with Green’s expense reports during her employment with MCHS.

Expense reports from employees who work for governmental entities are always considered public information, but the Austin law firm also asked the AG’s office to withhold those documents. The legal team cited all of the same exceptions listed in the first request, the only difference being a paragraph under the “informer’s privilege” exception that appeared to be redacted in the first request.

“The information contained in Exhibit 3 demonstrates that the District received a report of an alleged violation of a law or District policy that is within the purview of the District’s enforcement authority. The informer’s identity is not known to the requestor. As such, the information marked at Exhibit 3 should (be) withheld under the informer’s privilege as incorporated by section 552.101 of the Government Code,” the paragraph stated.

Dodd said everything involving personnel is discussed in executive session.

“We were informed of Tracy Green’s exit from MCH in executive session and the details of that were in executive session because it was personnel issues,” she added.

When asked whether or not Green’s employment was discussed in an executive session during a regular board meeting or a recent special meeting that only included one executive session item, Dodd said in a prepared statement, “if there are personnel issues, they are discussed in executive sessions. The board does not oversee the employees or personnel issues of MCH and is not provided detailed information about personnel issues. The board is also not permitted to discuss personnel issues of any sort.”

Joe Larsen, a Houston attorney and board member of the Freedom of Information Foundation of Texas, said board members actually have a First Amendment right to discuss what was said in executive session.

“Just because something is discussed in closed session doesn’t mean a board member can’t talk about it,” Larsen said. “There’s only one exception to that — if it’s an attorney-client communication.”

Larsen added that if there is potential or anticipated litigation and they are getting legal advice, board members can refuse to say anything.

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