By Gina Macris

Sometime in September, the state of Rhode Island drafted a settlement agreement, aimed at avoiding upcoming federal court contempt proceedings, for continuing violations of a 2014 civil rights consent decree case affecting adults with developmental disabilities.

But as the state’s lawyers were planning to show the proposal to the U.S. Department of Justice (DOJ), pre-trial legal sparring moved front and center, and the chances for any settlement to resolve the contempt charges remain unknown.

In an email chain made public in a court filing, the state’s lead lawyer told a counterpart at the DOJ on Sept. 30 that his team hoped to confer with DOJ lawyers in the following days about the proposed settlement.

Those emails also showed the two sides sparred over pre-trial procedures, coming to an impasse over the deposition of witnesses in the contempt hearing, scheduled to begin Oct. 18. A longstanding lack of funding and staff to carry out compliance with a 2014 consent decree would be a be a key issue in the contempt hearing.

The DOJ asked Chief Judge John J. McConnell, Jr. of the U.S. District Court to intervene, and compel the state to make available a total of 15 witnesses, including the House and Senate fiscal advisors, in time for the DOJ to depose all of them in accordance with a pretrial deadline already established in a court order.

McConnell has scheduled a teleconference with the lawyers for 4 pm on October 7.

In asking McConnell to intervene, the DOJ included a Sept. 30 chain of emails between DOJ lawyer Victoria Thomas and two state lawyers, Marc DeSisto and Kathleen Hilton.

In the emails, DeSisto and Hilton pushed back the start of depositions, in the process postponing a deposition that had already been scheduled with the state’s chief auditor in the Office of Management and Budget.

In addition, DeSisto and Hilton said they could not make the House and Senate Fiscal Advisors available for deposition at all. Sharon Ferland holds the House post and Stephen Whitney advises the Senate.

Hilton wrote: “Without more information as to the reasons you are seeking to call Sharon and Stephen as witnesses, we cannot make a determination on whether we could agree to make them available. There very well may be privileges that need to be preserved by way of a motion for protective order. Additionally, we do not have the authority to accept a subpoena on their behalf.”

DOJ’s Thomas replied: “We are seeking the testimony of Sharon and Stephen based on the Court Monitor’s opinion that they have valuable information relevant to the funding provision of the Consent Decree. We have now exhausted our good faith efforts to resolve this dispute and will be filing a motion to compel shortly.”

Earlier in the email chain, DeSisto had mentioned the proposed settlement:

“As we discussed in last evening's phone call,” he wrote to Thomas, “it is my hope that in the next few days we can confer regarding the terms of settlement. We are waiting for some feedback from Tony (A. Anthony Antosh, the independent court monitor) in this regard. Once we receive his input, we would like to have a settlement conference with you, maybe as early as tomorrow.”

Thomas replied:

“We are eager to see the State's written settlement proposal and to conference with you tomorrow. That said, while we remain hopeful that a settlement may potentially resolve our contempt motion, we must preserve our litigation rights.” Thomas continued to press for assurances on the depositions.

In its contempt motion, The DOJ has stated that, if necessary, it is prepared to present evidence that the state “failed even to ask its Legislature for a sufficient appropriation” and that it “failed to make efficient use even of the resources it had – for example, by failing to modify State rules and incentives that favor providers of less integrated services over providers of more integrated services.”

The DOJ has proposed an escalating scale of fines, from $500,000 on the first day of each of the first two months to $50,000 a day beginning on the 70th day. At that rate, the fines would add up to about $1.5 million a month.