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Ethics Watchdog Urges Justice Department Investigation Into Clarence Thomas’ Trips

1 year 7 months ago

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A Washington ethics watchdog is calling for the Department of Justice to investigate Supreme Court Justice Clarence Thomas for failing to disclose luxury trips he received from a billionaire GOP megadonor.

“This high-profile ethics matter has historic implications far beyond one Supreme Court justice,” attorneys for the nonpartisan Campaign Legal Center wrote in a detailed letter on Tuesday to the Judicial Conference, the principal policymaking body for federal courts. The Judicial Conference could trigger an investigation by referring the case to the Justice Department.

The financial disclosure law that covers justices and other federal officials states that “knowingly and willfully” failing to make required disclosures can result in fines. If someone intentionally falsifies their disclosure reports, they can face criminal penalties — a warning printed below the signature line of the reports themselves. But such prosecutions are rare.

ProPublica’s investigation last week revealed that Thomas has taken international cruises on conservative donor Harlan Crow’s superyacht, flown on Crow’s private jet and regularly vacationed at Crow’s private resort in the Adirondacks.

If the Judicial Conference were to refer the case to the Justice Department, it could lead to a remarkable historical moment. One of the few instances of a federal investigation into a sitting Supreme Court justice occurred in 1969, when Justice Department officials signaled an inquiry into outside payments that Justice Abe Fortas had been accepting. Fortas eventually resigned.

Lawyers for the Campaign Legal Center, which was founded by a former Republican chairman of the Federal Election Commission and pushes for tighter ethics enforcement in Washington, wrote that there’s ample “reasonable cause to believe that” Thomas knew the trips had to be disclosed.

“If the Judicial Conference fails to publicly address the substantial evidence of blatant violations of a disclosure law that other federal judges understand and regularly follow,” the attorneys wrote, “it creates an exception for Justice Thomas that swallows the rule.”

The Judicial Conference and Thomas did not immediately respond to requests for comment. The Justice Department declined to comment.

The letter is the latest in what have been days of mounting pressure to address the revelations. Last week, Democratic lawmakers called on Chief Justice John Roberts to investigate. This Monday, Democrats on the Senate Judiciary Committee announced plans to hold a hearing “regarding the need to restore confidence in the Supreme Court’s ethical standards.” They also announced an effort to reform ethics rules for federal judges.

In response to our story last week, Thomas issued a statement acknowledging the “family trips,” which he said he was told that he didn’t need to report.

“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas wrote. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”

Seven experts consulted by ProPublica, including former ethics lawyers for Congress and the White House, said the law clearly requires the disclosure of gifts of transportation, such as private jet flights. If Thomas is arguing otherwise, the experts said, he is incorrect. Among the experts was a top official at the Campaign Legal Center.

Crow acknowledged that he’d extended “hospitality” to the Thomases “over the years.” He said that Thomas never asked for any of it and it was “no different from the hospitality we have extended to our many other dear friends.”

Attorneys with the center said that the federal Ethics in Government Act and judiciary regulations have always required the disclosure of free travel — even before the regulations were updated last month. They argued that Thomas himself implicitly acknowledged as much when he disclosed similar flights in the late 1990s, including one on Crow’s jet.

The attorneys pushed for the Judicial Conference to make good on its recent promises to “ensure timely action is taken on credible allegations of misconduct” and refer Thomas’ case to the Justice Department before the next judicial ethics disclosure deadline in May.

Do you have any tips on the courts? Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240. Brett Murphy can be reached by email at brett.murphy@propublica.org or by Signal or WhatsApp at 508-523-5195.

Alex Mierjeski, Joshua Kaplan and Justin Elliott contributed reporting.

by Brett Murphy

Thousands of Katrina Survivors Were Freed From Debt to the State. Those Who Already Paid Are Out of Luck.

1 year 7 months ago

This article was produced in partnership with Verite and WWL-TV along with The Times-Picayune | The Advocate, which was part of ProPublica’s Local Reporting Network in 2022. Sign up for Dispatches to get stories like this one as soon as they are published.

Lisa Ruiz was at her home in Eden Isle, Louisiana, a community of about 8,000 nestled on the eastern shore of Lake Pontchartrain, when her mother called.

“You need to turn on the news!” her mother said that afternoon in early February. “The governor just announced the state is forgiving all the Road Home lawsuits.”

Ruiz’s heart skipped. Maybe she would get her money back.

Three years earlier, the state had sued Ruiz, saying she had misused a $30,000 grant meant to elevate her home to protect it from future flooding after Hurricane Katrina. The grant came as part of Road Home, the largest disaster recovery program in the country’s history. Like others, Ruiz said she had been told by Road Home representatives that she could use the money for repairs, and she did.

When the state came after her, Ruiz was afraid she could lose her house, so she withdrew $31,000 from her retirement account and sent it as repayment.

It wasn’t an easy decision, she said. That money was supposed to go toward the care of her severely autistic son after she dies. But rather than hiring an attorney to fight the suit or ignoring the demand and facing the possibility of a lien being placed on her home, she decided paying back the grant was the right thing to do.

“Everything I do, working 12-hour shifts for the past 15 years, is to put money into that account for my son because he’s going to require 24-hour care after I’m gone,” said Ruiz, a nurse for three decades, as tears streamed down her face. But, she added, “I’m an honest person. If it’s a debt I owe, I’m going to pay it.”

Then, in February, she got the call from her mother and thought for a moment that the state would fully reimburse her.

That hope was quickly dashed. Under threat of being sued, 425 people had made partial or full payments — totaling $6.8 million — to the state. But while thousands more would now be freed from legal peril, no longer required to pay what the state said they owed, officials said those hundreds who had already paid would not get refunds.

Ruiz was outraged.

“It’s not fair for people who were trying to do the right thing when there was no benefit for doing the right thing,” she said.

Years of Mismanagement

Louisiana Gov. John Bel Edwards’ Feb. 16 announcement that the state was no longer pursuing about 5,000 lawsuits against homeowners who allegedly misused recovery grants after hurricanes Katrina and Rita officially ended the 17-year odyssey of Road Home.

Of those lawsuits, about 3,500 specifically targeted families who received grants to elevate their homes to safe levels but failed to do so.

The program had been beset with problems from the start. An investigation by The Times-Picayune | The Advocate, WWL-TV and ProPublica last year found that the $30,000 grants provided to homeowners like Ruiz were not enough to elevate a house, which was a requirement of the grant. At the time, it cost at least three times that amount to put a home onto raised footings, something the state acknowledged later.

The state also failed to double-check whether people were eligible to receive the grants, or that their homes needed to be elevated, before sending out the money. When some of those homeowners contacted the state to say they didn’t need or want to elevate their homes, they were told by Road Home representatives they could use the funds for repairs, so that’s what they did, according to court records and the news outlets’ investigation.

Ruiz said she was quoted as much as $160,000 to elevate her home, which was more than she could afford. But Road Home representatives, she said, told her she could instead use the elevation grant to finish rebuilding.

“We were in a heck of a shape. So it was very easy to take those words and say, ‘OK, wonderful. This is a blessing.’ So that’s what we did,” she said.

At least five appeals court rulings support homeowners’ contention that they were told they could use the grants for repairs. But state officials said homeowners have been unable to identify who told them they could use the money for repairs.

Years of mismanagement of the recovery program left Louisiana on the hook to the U.S. Department of Housing and Urban Development, which funded Road Home, for nearly $300 million in misspent grants, about $103 million of that for the elevation grants alone. Under pressure from the federal government to recoup that money, the state sued thousands of storm victims.

The suits drew criticism from residents, housing advocates and elected officials, and the state and HUD spent years trying to negotiate a way out of them. The biggest question was how much the state would have to repay to satisfy its debt to the federal government. Only then could it close out the Road Home program and drop the lawsuits.

“It’s been a miserable thing for the state of Louisiana to pursue these individuals, because we knew the vast majority of them were never going to pay,” Edwards said in February.

The deal that the state and HUD eventually brokered allowed the state to repay just $32.5 million in misused funds and release homeowners from “unpaid judgments and payment plans,” according to a HUD spokesperson.

To pay off the $32.5 million, Louisiana is using two separate pots of money: $12 million from a settlement with ICF Emergency Management Services, the third-party contractor the state sued for mismanaging the recovery program; and an anticipated $20.5 million appropriation by the state legislature in the current session.

Ruiz questioned why the state can’t appropriate additional funds to reimburse her and others, but state Commissioner of Administration Jay Dardenne said doing so would likely run afoul of the state constitution, which explicitly prohibits public money being “loaned, pledged or donated to or for any person.”

State Rep. Jerome Zeringue, R-Houma, chairman of the House Committee on Appropriations, echoed Dardenne’s sentiments. The legislature could seek an opinion from the attorney general approving the appropriation of additional money, but there is a good chance such an opinion would be challenged and overturned by the courts, he said.

Asked whether the legislature is even considering such a move, Zeringue said, “It hasn’t been brought up until you asked about it.”

As part of the deal reached with the federal government, the state will also forgo receiving $37 million in unused Road Home funds from HUD. That money, however, can’t be used to reimburse those who already paid back their grants, a HUD spokesperson told the news organizations.

John Lovett, a professor at the Loyola University New Orleans College of Law, called the state’s argument “weak” and a “perversion” of the state constitutional clause’s true intent, which is to prevent the use of public funds for influence peddling and cronyism: “The state collected this money it really shouldn’t have collected in the first place.”

He said restoring funds to the 425 residents who paid back money under threat of being sued is “a kind of reparation that seems appropriate to me.” If the legislature were to authorize compensation, “that would be a perfectly legitimate use of state funds,” Lovett said.

Watch WWL-TV’s Report

Dardenne said that by dropping the lawsuits, the state was not admitting they were illegitimate or that the money was wrongfully collected. He pointed to numerous cases in which the courts ruled in the state’s favor and against homeowners as proof the suits were on solid legal ground. “If the premise had been faulty, then all the lawsuits would have been thrown out,” he said.

Nonetheless, Louisiana is certainly not short on money, entering the legislative session with a $1.5 billion surplus, Lovett said. At his February press conference about the suits, Edwards acknowledged this. "Thank goodness we have excess money in the state of Louisiana today, which we didn’t have when I became governor," he said.

New Orleans attorney Chris Szeto, who represented more than 300 families sued over their Road Home grants, said reimbursing homeowners who already repaid grants is exactly what the state should do.

“You can’t say to one group of people, ‘We don’t think you should have to pay this money back anymore.’ And to this other group, ‘All that money you paid? That’s too bad. We’re not giving it back,’” Szeto said. “It’s disgraceful. It’s morally wrong. And it shows a lack of concern for the average citizen.”

Szeto has not ruled out filing legal challenges on behalf of his clients the state refuses to reimburse. “We’re looking at all possible solutions,” he said.

Last May, just weeks after the news outlets reported on the lawsuits, the state announced that it was pausing collections. By that point it had received about $5 million. But it failed to notify homeowners who had ongoing monthly payment plans. So the checks continued to pour in, and Shows, Cali & Walsh — a law firm representing the state — continued to cash them, generating an additional $1.8 million, about a quarter of the total repaid by residents under threat of suit by the state.

The state has paid Shows, Cali & Walsh $11.1 million since 2009 to litigate claims of fraud and waste for all Road Home programs, including the elevation lawsuits.

“I Followed the Rules”

Judy Baptiste at her home in New Orleans (Photo by Sophia Germer, The Times-Picayune and The New Orleans Advocate)

Judy Baptiste started sending the state $400 a month in March 2018to pay down about $23,000 the state claimed she owed for misspending her elevation grant. It wasn’t easy, she said. Her sole source of income — Social Security payments — was less than $1,100 a month. After paying the state, she said, she rarely had enough left over for food or utilities and had to rely on friends and family to help her financially.

Still, she didn’t feel as if she had a choice.

“They just kept sending me letters in the mail, telling me that if I didn’t pay them that they would put a lien on my house,” she said of Shows, Cali & Walsh, which did not respond to a request for comment.

Even after the state paused its collection, Baptiste, who lives in Seabrook, a lakefront subdivision of New Orleans East, continued to make her regular payments, ultimately sending the state $3,083.38 after the announcement was made.

“I followed the rules. I was never late paying them on time, every month,” Baptiste said. “They never called and told me, ‘Ms. Baptiste, you have to stop paying.’ They just were taking the money.”

Angie and Kevin Tillman, who live in the Gentilly neighborhood in New Orleans, agreed to a plan that required them to make monthly payments of $250 for five years plus a balloon payment of about $15,000 at the end. She later learned the state had paused its collection efforts back in May, but afterwards still cashed four of their checks, totaling $1,000.

Her husband called the state’s actions “reprehensible.”

“The state held us hostage financially, and they would have continued to take our money and not said a mumbling word,” he said.

When asked why the state continued to accept monthly payments from homeowners after the state paused its collection efforts, Dardenne said those payment plans were court-ordered, so the state had no choice. “Those were legal judgments that had been rendered,” he said. “And so, we determined that we couldn’t stop what was in place. But we stopped everything going forward.”

But that wasn’t the case with either the Tillmans or Baptiste. The state never filed suit against them. Their payment plans were out-of-court agreements signed by notaries that said nothing about the state being required to accept the payments.

Lovett, the law professor, called the state’s argument that it couldn’t stop collecting monthly payments “very strange.” Any debt collector can choose to forgive a debt, he said.

“I think the argument about their inability to stop collecting, even on a court judgment, is just a technicality, is putting form over substance,” Lovett said. “There was no reason they should have continued to collect once they knew it was wrong because they stopped trying to pursue other people.”

Sitting in her one-story ranch-style home that was left submerged in 3 feet of water by Katrina, Angie Tillman questioned whether she and her husband made the right choice to stay in New Orleans after the storm.

“New Orleans is our home. We returned with a commitment to rebuild. We invested in our community. And then you come back and nickel-and-dime us?” Angie said. “It’s disheartening.”

by Richard A. Webster, Verite, and David Hammer, WWL-TV

The EPA Faces Questions About Its Approval of a Plastic-Based Fuel With an Astronomical Cancer Risk

1 year 7 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

The Environmental Protection Agency is facing a lawsuit filed by a community group and questions from a U.S. senator over the agency’s approval of fuels made from discarded plastic under a program it touted as “climate-friendly.”

The new scrutiny is in response to an earlier investigation by ProPublica and the Guardian that revealed the EPA approved the new chemicals even though its own scientists calculated that pollution from production of one of the plastic-based fuels was so toxic that 1 in 4 people exposed to it over their lifetime would be expected to develop cancer. That risk is 250,000 times greater than the level usually considered acceptable by the EPA division that approves new chemicals, and it’s higher than the lifetime risk of cancer for current smokers.

On Friday, a community organization sued the EPA in the U.S. Court of Appeals in Washington, D.C., over the agency’s decision to allow a Chevron refinery in Pascagoula, Mississippi, to produce the fuels derived from plastic waste, including the one that could subject people nearby to a 1-in-4 lifetime cancer risk. Cherokee Concerned Citizens, which represents residents in a housing subdivision close to that refinery, is asking the court to invalidate the EPA’s approval of the new chemicals.

Earlier in the week, the chair of the U.S. Senate subcommittee that oversees chemical safety questioned the head of the EPA over the agency’s approval of those fuels. Sen. Jeff Merkley, a Democrat from Oregon, told EPA Administrator Michael Regan in a letter sent on Wednesday that he found what ProPublica and the Guardian discovered “especially troubling.”

“While it is urgent that our country takes actions to address climate chaos we need to ensure that the steps we take actually reduce greenhouse gas emissions and do not do so by sacrificing historically marginalized communities and those who are already overburdened by toxic pollution,” Merkley wrote.

The plastic-based fuels were given a green light under an EPA program designed to make it easier to create alternatives to fossil fuels. As ProPublica and the Guardian noted in the February story, making fuel from plastic is in some ways worse for the climate than simply creating it directly from coal, oil or gas. That’s because nearly all plastic is derived from fossil fuels, and additional fossil fuels are used to generate the heat that turns discarded plastic into fuels.

U.S. Sen. Jeff Merkley, D-Ore., holds a plastic bottle as he talks about recycling during a hearing by a subcommittee of the Senate Appropriations Committee in 2021. (Kevin Dietsch/Getty Images)

Federal law does not allow the EPA to approve new chemicals that have serious health or environmental risks unless the agency finds ways to minimize them. Yet, the agency approved the new plastic-based fuels without requiring lab tests, air monitoring or controls that would reduce the release of cancer-causing pollutants or nearby residents’ exposure to them, ProPublica and the Guardian found.

The sky-high risks and lack of safeguards for the people who would breathe pollution from the refinery’s smokestack are at the center of a lawsuit brought by residents of Pascagoula’s Cherokee Forest subdivision. The subdivision, which is near a number of industrial facilities, was inundated with cancer-causing pollution well before the new fuels were approved, as ProPublica reported in 2021, and the residents have been working for years to curb local emissions.

Barbara Weckesser, a resident who co-founded the group that’s suing the EPA, said she was surveying her neighbors about illnesses she fears are related to pollution just before she read about the approval of the plastic-based fuels on ProPublica’s website. “I was sitting down in my chair and I said holy — I won’t say the rest of it,’” said Weckesser. “Here we go again.” She noted that five of her neighbors are currently undergoing chemotherapy.

Barbara Weckesser outside of her home in Pascagoula (Kathleen Flynn, special to ProPublica)

Katherine O’Brien, an Earthjustice senior attorney who represents the community group, said the law requires the EPA to address “unreasonable risks” presented by chemicals. The agency can impose specific limits or requirements that companies must follow and, when necessary, prevent them from making or using a chemical. “The community should not be subjected to additional emissions of novel toxic chemicals, particularly where EPA found that the chemicals will pose jaw-dropping risks to human health,” O’Brien said.

An EPA spokesperson on Friday declined to comment about the lawsuit. When asked about the fuels in February, a spokesperson for the agency said that the 1-in-4 cancer risk calculation was “a very conservative estimate with ‘high uncertainty,’” meaning that it erred on the side of caution in calculating such a high risk.

The spokesperson at that time explained that the EPA included plastic-based fuels in a program focused on biofuels because the initiative also covers fuels made from waste. As of February, the program had approved 34 fuels; 16 of them were made from waste. All 16 of the waste-based fuels were subject to consent orders, documents that the EPA issues when it finds that new chemicals or mixtures may pose an “unreasonable risk” to the environment or human health. Consent orders spell out the risks and specify the agency’s plans for mitigating them.

Asked about Sen. Merkley’s letter, the EPA said in a written statement that it “looks forward to the opportunity to clarify the record as well as its approach to reviewing” these new chemicals, “communicate more clearly about the risks associated with the submissions the agency has already reviewed, and discuss ways EPA plans to improve this approach in the future.”

In a written statement, Chevron told ProPublica and The Guardian in February that the company had followed the EPA’s process under the Toxic Substances Control Act, which regulates chemicals. The statement said, “We are taking steps to address plastic waste and support a circular economy in which post-use plastic is recycled, reused or repurposed.”

Chevron also recently created a webpage that it says answers questions raised by the community about the February article. On it, the company describes its new fuels as “part of an advanced sustainable recycling program” and notes that it has not begun to produce them. The website also describes the 1-in-4 cancer risk as “based on EPA’s initial risk screening.”

In fact, that high lifetime cancer risk was the EPA’s own calculation and was detailed in a final consent order that was signed by a manager at Chevron’s Pascagoula refinery and the director of EPA’s new chemicals division.

The Chevron website also says that the cancer risk “was taken out of context and doesn’t reflect how it would actually be done given the processes and safeguards we use every day at the refinery to ensure we do everything safely or not at all.” The company website says Chevron did a trial of the process about a year ago and found that “the refinery functioned normally” and emission levels “remained normal.”

The website says that the company “will not do anything that is unsafe for our workers or our neighboring communities. We will ensure it can be done safely or not at all.”

A Chevron spokesperson declined to comment about the lawsuit. Asked about Sen. Merkley’s letter, the company in a new written statement said it stood by its earlier comments and noted that the EPA review under the Toxic Substances Control Act “begins with an initial screening analysis to identify preliminary chemical risks. The next steps include adding workplace safety and environmental protections, which are also in that consent order.”

Chevron also wrote, “A variety of environmental regulations and permitting processes govern air, water and handling hazardous materials,” including the Clean Water Act, Clean Air Act and Resource Conservation and Recovery Act. “Any responsible reading of chemical risks will be informed by these requirements.”

As ProPublica and the Guardian noted in February, the Clean Water Act does not address air pollution, and the new fuels are not regulated under the Clean Air Act, which applies to a specific list of pollutants. The Resource Conservation and Recovery Act governs the management of waste.

While state regulators can add specific pollutants to permits that regulate air emissions, it would be difficult in this case, because critical details about the fuels were hidden by the EPA. The consent order even blacked out the names of the chemicals. The agency said that these basic facts were considered confidential business information.

The Environmental Protection Agency blacked out key information in this section of a consent order, which covers new Chevron fuels derived from plastic waste. (EPA document obtained by ProPublica and the Guardian)

In his letter, Merkley asked EPA Administrator Regan which federal rules and regulations apply to the air pollution emitted during the production of the plastic-based fuels. Merkley had other pointed questions for the agency, including why it approved the new chemicals without a more thorough understanding of their risks and how it plans to monitor their production to ensure environmental safety and public health.

Merkley — chair of the U.S. Senate Committee on Environment and Public Works Subcommittee on Chemical Safety, Waste Management, Environmental Justice, and Regulatory Oversight — reminded Regan that the EPA told the public the new fuels program supported a federal climate change plan that lists promoting environmental justice as a key goal. “How does the EPA balance or reconcile that goal with the increased environmental and public health hazards imposed by these new chemicals?” he asked.

Merkley also wrote, “So-called ‘chemical recycling’ has been touted by companies like Chevron as a way to reduce plastic waste through repurposing it but turning plastic waste into fuel increases greenhouse gas emissions, subsidizes the petrochemical industry, and harms frontline communities located near these facilities.”

The senator also asked for a list of all the new waste-based fuels approved and all consent orders issued under this program. ProPublica and the Guardian requested this same information earlier this year, but the agency wouldn’t provide it. Merkley gave Regan an April 30 deadline.

by Sharon Lerner

Congress Members Announce Hearing, Demand Chief Justice Investigate Clarence Thomas’ Trips

1 year 7 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Democrats on the Senate Judiciary Committee on Monday announced plans to hold a hearing in the coming days “regarding the need to restore confidence in the Supreme Court’s ethical standards,” citing ProPublica’s reporting on over 20 years’ worth of luxury travel accepted by Supreme Court Justice Clarence Thomas from a billionaire Republican megadonor.

The planned hearing is detailed in a letter to Chief Justice John Roberts and follows comments made by the committee chair, Illinois Sen. Dick Durbin, last week in which he called for an “enforceable code of conduct” for the justices.

If “the Court does not resolve this issue on its own, the Committee will consider legislation to resolve it,” the letter said.

Monday’s letter echoed a call from 22 Democratic lawmakers last week for Roberts to launch an investigation into Thomas’ trips and his failure to report them. That group included members of both the House and Senate judiciary committees.

In their separate letter to Roberts, those lawmakers — including Rhode Island Sen. Sheldon Whitehouse and Georgia Rep. Hank Johnsonwrote that as chief justice, Roberts is duty-bound to conduct a “swift, thorough, independent and transparent investigation” in order to “safeguard public faith in the judiciary.”

Both letters hinted at congressional action to strengthen the court’s rules around ethics and disclosure. The court “has barely acknowledged, much less investigated” the details reported by ProPublica, the lawmakers wrote Friday, citing their alarm over “allegations of unethical, and potentially unlawful, conduct at the Supreme Court.”

“Should the Supreme Court continue to refuse to act swiftly on these matters,” the letter added, “we will continue to press Congress to act to restore accountability and ethics at the highest Court in the land.”

The flurry of activity by the lawmakers comes in response to ProPublica’s report revealing that for years, Thomas had accepted luxury trips from Dallas billionaire Harlan Crow without disclosing them. The trips included international cruises on Crow’s superyacht, flights on Crow’s private jet and regular summer getaways at Crow’s private lakeside resort in the Adirondacks.

A Supreme Court spokesperson didn’t immediately respond to a request for comment on the letters.

In a brief statement on Friday, Thomas cited “guidance from my colleagues and others in the judiciary” that “this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”

Crow previously told ProPublica that he and his wife never discussed a pending case with Thomas and had “never sought to influence Justice Thomas on any legal or political issue.” He also said that he is “unaware of any of our friends ever lobbying or seeking to influence Justice Thomas on any case, and I would never invite anyone who I believe had any intention of doing that.”

An ethics law passed after the Watergate scandal requires justices and other federal officials to disclose most gifts to the public. That law, legal ethics experts told ProPublica, clearly mandates that gifts of transportation, including private jet flights, be reported.

Urging the court to adopt stricter rules on Monday, Senate Judiciary Committee members noted that justices’ “ethical standards” have raised concerns before. They pointed to a series of articles in 2011 that revealed some of the close ties between Thomas and Crow.

“This problem could have been resolved then. Instead, according to ProPublica’s reporting, Mr. Crow’s dispensation of favors escalated in secret during the years that followed. Now the Court faces a crisis of public confidence in its ethical standards that must be addressed,” they wrote.

In the letter sent last week, the Democrats — whose ranks include Sen. Richard Blumenthal of Connecticut, Sen. Elizabeth Warren of Massachusetts, Rep. Jerry Nadler of New York and Rep. Adam Schiff of California — cited a pressing need for updated rules for the court. “It is well past time for the Supreme Court to align with the rest of government in a proper code of ethics enforced by independent investigation and reporting,” they wrote.

The lawmakers also questioned Thomas’ defense, noting that the so-called personal hospitality exemption to the law is “not meant to allow government officials to hide from the public extravagant gifts by wealthy political interests.”

And they raised concerns around the broader ethical implications of a Supreme Court justice taking undisclosed trips with other guests, calling for more robust disclosure and ethics rules for the court. In one instance detailed in ProPublica’s report, Thomas was joined at Crow’s Adirondacks resort by corporate executives, major Republican donors and one of the leaders of the American Enterprise Institute, a conservative think tank.

Whitehouse and others have already introduced a bill this year aimed at tightening the court’s rules, among other reforms.

Spokespeople for Ohio Rep. Jim Jordan, the Republican chairman of the House Judiciary Committee, and South Carolina Sen. Lindsey Graham, the ranking Republican on the Senate Judiciary Committee, did not immediately respond to requests for comment.

Do you have any tips on the courts? Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240.

by Alex Mierjeski, Joshua Kaplan and Justin Elliott

Utah’s Secretive Medical Malpractice Panels Make It Even Harder to Sue Providers

1 year 7 months ago

This story discusses sexual assault.

This article was produced for ProPublica’s Local Reporting Network in partnership with The Salt Lake Tribune. Sign up for Dispatches_ to get stories like this one as soon as they are published.

Jessica Lancaster didn’t want to tell the panel of three strangers in front of her about the moment her chiropractor insisted she lift up her shirt.

How Kelby Martin’s breathing became heavier as he groped her breasts, which had been healing from surgery; how after he touched her chest, he didn’t follow through with any type of chiropractic treatment; how she left his office in August 2021 in a haze.

But Lancaster wanted to sue Martin to hold him accountable, and before she could do that, Utah law required her to make her case to the panel.

The panel concluded last August that Martin had departed from the normal standard of care, Lancaster’s lawyers later disclosed in a court filing. In response to a request for comment, Martin’s lawyer pointed to court papers in which the chiropractor denied Lancaster’s allegations against him. The case is pending; his license remains in good standing with the state.

There was a time when a majority of states had adopted malpractice screening panels in some form. A 1984 analysis by the American Medical Association found 30 states had implemented panels at some point. The goal was to cut down on frivolous lawsuits and encourage settlements of legitimate claims.

Over the years, many of those states found these panels ineffective or in violation of their constitutions, and some did away with them entirely. But Utah remains one of 16 states where patients still must spend time, money for legal services and emotional energy recounting to a panel how a medical professional they trusted hurt them, according to a tally from the National Conference of State Legislatures. The Utah system has processed, on average, about 300 cases per year for much of the last decade, according to state data.

“It’s just one more time we have to tell our story,” Lancaster said. “We relive it. I think it’s so unnecessary.”

That extra step is mandated but can feel pointless to plaintiffs. Even if the Utah panel says a claim is meritless, they remain free to sue, and several attorneys told The Salt Lake Tribune and ProPublica they routinely go on to win jury verdicts or settlements in such cases.

Medical providers contend the process has a purpose. Michelle McOmber, CEO of the Utah Medical Association, said it’s common for potential plaintiffs to accuse a broad range of providers. The information sharing that happens during a panel hearing, she said, can help both sides focus on those who may have harmed the patient.

The state agency that administers the panels also asserts that they are “highly effective in ferreting out frivolous claims, as it is rare for a case deemed without merit to move forward,” said Melanie Hall, spokesperson for the Utah Department of Commerce’s Division of Occupational Licensing. The division’s data shows that over the last decade, only 4% of the cases considered by the panels were considered meritorious.

But there is no way to independently assess DOPL’s claim that nonmeritorious claims rarely move forward — because Utah is one of six states where panel rulings are kept secret from the public. And state lawmakers have not asked the division to track how cases are resolved after a panel’s judgment.

Utah law does require DOPL to compile whether claims heard by the panels are later filed as lawsuits. But it is not compiling this data, division director Mark Steinegal said in an email responding to The Tribune’s request for that data.

No one in Utah — including legislative auditors — has been able to prove that the prelitigation panels are effective at reducing litigation.

Prelitigation panel hearings are held in a conference room at the Heber Wells Building in Salt Lake City. (Trent Nelson/The Salt Lake Tribune)

Soon, sexual assault victims who say they have been harmed by medical workers will become exempt from this process. Last month, the Utah Legislature passed and Gov. Spencer Cox signed a bill clarifying that sexual assault is not considered health care, and such claims are not governed by the state’s medical malpractice act. So those who say they have been harmed after the law goes into effect — May 3 — will be able to file civil lawsuits against alleged abusers without appearing before a panel.

The new law followed a recent investigation by The Tribune and ProPublica that detailed how patients who say they were sexually assaulted by providers faced more hurdles and were treated more harshly in Utah’s civil courts than those abused in other settings.

Now some are calling for the state to abandon the panels altogether. Those critics, mostly personal injury lawyers, say it’s time for Utah to overhaul its system.

“It’s often being used as a tool to make access to justice for individuals harder, more expensive and more time-consuming,” said Jeff Gooch, a Utah personal injury attorney who has also worked as the chair of a prelitigation panel.

An “Arbitrary Delay” or Helpful Process?

Beginning in the 1970s, most states adopted some type of screening step for those who want to sue a health care provider — one of several reforms made in response to fears that the cost of health care was rising because of an increase in civil lawsuits and “runaway juries” doling out multimillion-dollar payouts.

But it became clear the system wasn’t always working the way it was intended. In 1979, Missouri’s Supreme Court ended its panel process after finding it caused a “useless and arbitrary delay.” And in 2019, Kentucky’s high court struck down its law after it had been in effect for just a year, finding it caused an unconstitutional delay in people’s ability to access the courts.

Since the panels were added to Utah’s medical malpractice law in 1985, no one, including state auditors, has been able to show whether they have had a meaningful impact on weeding out frivolous cases or reducing the number of medical malpractice cases filed.

Prelitigation panel hearings are held in this Utah Department of Commerce conference room in the Heber Wells Building. (Trent Nelson/The Salt Lake Tribune)

One Brigham Young University law school study from 1989 surveyed Utah attorneys who had participated in panels in their first two years of existence. The researchers concluded that the program was ineffective: They found that an overwhelming majority of the attorneys surveyed “stated that their opinion of the case did not change as a result of the hearing.”

“The procedure does not foster settlement,” one attorney wrote in a survey response. “It only gives the medical provider more protection by the mandated steps required before litigation can be pursued. It is another way for medical providers to avoid liability. I believe it should be done away with.”

Five years after that study was published, Utah legislative auditors took a look at the panel process. Their 1994 audit found that only 8% of the cases that were reviewed by Utah’s panel during a five-year period beginning in 1985 were settled before a lawsuit was filed. Some 60% went to court. The remaining cases were dropped without being filed in court.

“We could not find an objective way to determine whether the prelitigation process has been a success,” the auditors concluded.

Utah legislators in 2010 put an extra hurdle into the prelitigation panel process: Patients who wanted to file a lawsuit after receiving a “nonmeritorious” opinion had to find an expert who would disagree with the panel and explain why their case had merit — a process that could cost thousands of dollars. That added obstacle remained in place for nearly a decade until the Utah Supreme Court in 2019 found it unconstitutionally blocked access to the courts.

Despite no concrete evidence of the panels’ effectiveness, Steinegal said the feedback he has gotten from attorneys suggests that the prelitigation process is valuable.

“I have heard from both plaintiffs and counsel for defendants that the process is effective in achieving early discovery of the issues, long before the formal procedures that take place in court,” he said. He added that the process is worthwhile “if for no other reason than it accelerates information-sharing.”

Brian Craig, the current prelitigation panel chair, echoed Steinegal’s assertion that the panels ferret out frivolous cases. In a recent Utah Bar Journal article he authored, Craig gave the example of a woman who claimed that the physician who removed her appendix also removed one of her ovaries. A later ultrasound, he said, showed that she still had two ovaries.

“The Cards Are Stacked Against You”

Several attorneys who spoke to The Tribune and ProPublica said the extra cost and delay caused by the panels provides little benefit.

Gooch thinks the bigger problem is the long wait before a suit can be filed: “Memories fade. Excitement fades. Often people’s lives fade — especially if they’re ill.”

Ed Havas, a personal injury attorney who has practiced in Utah for more than 40 years, said it's common for attorneys to get a nonmeritorious finding from the prelitigation panel and to go on to win that case, either in a settlement or a jury verdict.

He said attorneys typically move forward because they have reviewed medical records and consulted an expert — and believe they can win. He also pointed out that panel members weigh in before plaintiff attorneys have all the evidence they will seek to support their case, since the disclosure of documents happens after a case gets into court.

The panel is less formal than a court hearing, and potential plaintiffs are not required to join their attorneys in meeting with the panel, like Lancaster did. Still, Craig wrote in his Bar Journal article, “attendance by parties” is viewed favorably by the panel and signals that both sides are taking the process seriously.

Critics also include a state legislator who works as a personal injury attorney and has been a panel member. Utah State Sen. Mike McKell — who introduced the recent law exempting sexual assault in medical settings from malpractice requirements — said there is some benefit for the person suing to get to see how a doctor plans to defend him or herself. But overall, the Republican lawmaker said, “it’s nothing more than an obstruction to a victim who has been hurt due to no fault of their own.”

Utah state Sen. Mike McKell, R-Spanish Fork, during a session of the Utah Senate on Feb. 24. McKell introduced legislation that will change state law to ensure that sexual assault lawsuits do not fall under the state’s Health Care Malpractice Act. (Leah Hogsten/The Salt Lake Tribune)

“It’s an impediment put into place to create one more barrier for that access to the court,” he added.

McKell said he tries to help his clients understand that while panelists will likely find their claims don’t have merit, that doesn’t mean they have lost their case.

“This is not a fair hearing,” he said he tells his clients. “The cards are stacked against you. You will likely lose your case with the prelitigation panel. That doesn’t mean we don’t believe in your case.”

All panels include an attorney with no connection to the case, a member of the public who has applied to serve and a health care worker in the same specialty as the accused provider. But several attorneys said its members often defer to the opinion of the health care worker in the group who works in the same field as the accused.

In Utah’s small medical community, it’s likely that these people know each other or went to school together.

“You’re asking the profession to judge themselves,” said Ashton Hyde, the legislative chair of a lobbying organization for Utah trial lawyers. “I think the panel itself is a waste.”

Hall, the DOPL spokesperson, pushed back on concerns that the panels could be biased. She said that DOPL has observed that the medical professional on the panel generally holds the accused to a higher level of scrutiny than the other panelists.

“We believe this may reduce bias from the panel members,” she said.

Hyde said he fears if his organization pushes to get rid of the panels, there will be backlash from doctors and hospitals, who could counter by seeking legislative measures that would make the prelitigation process more difficult.

McKell said he contemplated introducing a bill to get rid of the prelitigation panels three years ago, after the Utah Supreme Court ruling limited their use. But he said he opted not to do so after receiving feedback from lawyers who thought the process still had value.

He has no plans to bring future legislation to eliminate the prelitigation panels, he said in a recent interview.

“This Is on My Soul”

Lancaster said she left her prelitigation panel meeting hurt after one member asked her questions that she perceived as blaming her for being assaulted. She had trusted Martin for care for more than three years, she said, and when he allegedly assaulted her, it caused “a wound I can’t even explain.” (The finding from Lancaster’s panel hearing only became public because it was disclosed in a court filing that was later amended to remove it.)

Lancaster said she believes the panel should receive additional training to be more sensitive toward those who say they have been hurt.

“It was just a lack of education,” she said. “You don’t blame the victim for someone assaulting” them.

Hall, the spokesperson for DOPL, said that panel members do not currently receive sensitivity training, emphasizing that the division’s role in administering the panels is “clerical.” She said officials expect panel members to be professional and sensitive in their questioning, but said they also need a thorough understanding of the case.

“This may require very direct questions that seem insensitive,” she said.

Because McKell’s new reform exempting sexual assault survivors from medical malpractice requirements is not retroactive, alleged victims like Lancaster will continue to go before prelitigation panels for at least two more years — based on the filing deadlines for medical malpractice cases.

To Lancaster, sharing her story with the panel brought back the trauma she had experienced after the alleged assault.

“This is on my soul,” she said. “It’s on the depths of me that I will spend forever healing and trying to fathom why someone would do this to someone.”

If you need to report or discuss a sexual assault in Utah, you can call the Rape and Sexual Assault Crisis Line at 801-736-4356. Those who live outside of Utah can reach the National Sexual Assault Hotline at 800-656-4673.

Help ProPublica and The Salt Lake Tribune Investigate Sexual Assault in Utah

Mollie Simon contributed research.

by Jessica Miller, The Salt Lake Tribune

The Army Increasingly Allows Soldiers Charged With Violent Crimes to Leave the Military Rather Than Face Trial

1 year 7 months ago

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This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans, and with Military Times, an independent news organization reporting on issues important to the U.S. military. Sign up for newsletters from The Texas Tribune and Military Times.

Stationed at Army posts thousands of miles apart, two soldiers faced a flurry of criminal charges after they allegedly assaulted women within days of each other in early 2017.

One soldier was accused of physically assaulting his wife and firing a gun as she tried to flee their home near Fort Hood in Texas. Police later found a bullet hole in a window screen.

The other told investigators in Alaska that he’d had sex with a fellow soldier who he knew was drunk and incapable of providing consent. They later found DNA evidence of his semen on her shorts.

Military prosecutors deemed the cases strong enough to pursue them in court. But the Army instead kicked the soldiers out, allowing them to return to civilian life with scant public record of the accusations against them.

The two cases are among hundreds that lay bare a long-standing but little-known practice that permits service members facing criminal charges to circumvent trial by being discharged from the military. The service members often receive negative marks on their personnel records but avoid the possibility of a federal conviction.

A federal watchdog agency in 1978 called for abolishing the practice, known as administrative separations in lieu of court-martial, arguing that it should be used only to remove service members who were unfit for the military, not to dispose of cases involving alleged criminal offenses.

A 1978 report to Congress called for the elimination of administrative discharges in lieu of court-martial. (Highlighted by ProPublica and The Texas Tribune)

Nearly 50 years later, however, the practice remains. And, in the Army, it is increasingly being used for cases in which soldiers are charged with serious crimes such as sexual assault, domestic violence or child abuse, an investigation by ProPublica, The Texas Tribune and Military Times found.

More than half of the 900 soldiers who were allowed to leave the country’s largest military branch in the past decade rather than go to trial were accused of violent crimes, according to an analysis of roughly 8,000 Army courts-martial cases that reached arraignment. The figure is a significant increase from about 30% in the previous decade.

Choosing to handle such cases administratively instead of through the courts can have serious ramifications, experts told the news organizations.

Some soldiers escape potential legal consequences: Those who may have been convicted of sexual assault won’t have to register as sex offenders, and those who could have been found guilty of domestic abuse will not be subject to federal restrictions prohibiting them from owning firearms.

“If you’re letting serious crimes go through the administrative separation route, you increase the possibility of a serial rapist, a child molester, going back into the community and doing it again because there’s no public record and no dissuasion,” said Joshua Kastenberg, a professor at the University of New Mexico School of Law and former Air Force judge advocate.

But such administrative separations also carry a stigma, particularly for service members charged with minor offenses, according to experts. Those who are granted permission to leave the military typically receive an “other than honorable” discharge. Such a designation strips service members of many veterans benefits and can look bad to employers, experts said.

Military commanders are not required to explain their reasoning when granting these discharges. But the news organizations found instances in which they have approved separations even in cases with witnesses, DNA evidence or confessions.

In the Fort Hood case, the ex-soldier was arrested for choking his girlfriend a year after the Army chose not to pursue charges against him for allegedly assaulting his wife. He later pleaded no contest to the charges involving his wife and guilty to charges related to the assault of his girlfriend. He declined an interview through a relative.

“I just wish that they would have done more,” Morgan Short, the second woman who accused him of assault, told ProPublica, the Tribune and Military Times.

Army officials declined to comment about individual soldiers’ cases.

Army Col. Christopher Kennebeck, chief of the criminal law division at the Office of Judge Advocate General, did not dispute the news organizations’ finding that these types of administrative separations are increasingly being used for violent crimes. He said they are intended for minor offenses or cases in which the Army is not able to meet the necessary burden of proof to win at trial. A separation from the Army is a good alternative if commanders believe wrongdoing occurred but do not have enough evidence for a conviction, he said.

“You have someone who still exists in society, still has the presumption of innocence to go on with their lives,” Kennebeck said. “It’s just that in the military, you might not be able to continue to serve.”

But former Air Force chief prosecutor Col. Don Christensen said once officials read charges in court against a soldier, as happened in each case analyzed by the news organizations, the government should be ready to go to trial. Backing away from those charges signals to Christensen, now in private practice, that the Army is concerned that it can’t win cases, which he said is its own problem.

“You have someone take an oath saying the charges were true, so it’s true that this person is violent, it’s true this person is a sex offender. But now I’m going to say that we’re just going to fire him and turn him back into civilian society without really addressing the issue,” Christensen said.

Unheeded Calls

Soldiers charged with crimes ranging from going AWOL and smoking marijuana to rape and aggravated assault with a deadly weapon can request to leave the Army rather than go to trial.

In doing so, enlisted soldiers must acknowledge that they committed an offense that could be punishable under military law. They do not have to admit guilt to a specific crime.

After an enlisted soldier’s immediate commanders weigh in with a recommendation, a senior commander overseeing the court-martial, typically a two-star general or higher, decides whether to grant the discharge in consultation with legal advisers. Officers don’t have to admit guilt, and ultimately a Pentagon official decides whether to accept the request.

The practice has no exact equivalent in the civilian justice system.

One comparison, according to legal experts, is deferred adjudication, a process that lets people accused of certain crimes avoid a conviction if they successfully complete probation without any other violations.

A key difference is that with deferred adjudication, judges, not commanders, decide and can ultimately revoke the probation and continue with the original charges if the person fails to meet the agreed-upon conditions.

In the military, however, soldiers are free to return to civilian life once a discharge is granted and there are no stipulations for revoking the agreement if the soldier gets in trouble again. And unlike in the civilian justice system, where the public can typically access court records related to a case, limited information is available in the military because the soldier was never convicted.

Federal lawmakers and some military appeals judges took issue with the lack of due process and growing use of administrative separations throughout the 1960s.

Perhaps the most significant critique of such separations came in 1978 when the federal government’s General Accounting Office, now known as the Government Accountability Office, released a report that called for ending the practice.

The report said that while military branches had used such separations “as an expedient way to get rid of problem people,” Congress never intended for the process to apply to criminal cases.

Releasing some soldiers while trying others for the same offense resulted in unequal treatment and limited the effectiveness of military courts, which “must enforce the law and also protect the rights of individual service members. They cannot accomplish these objectives if a major portion of criminal offenses are dealt with outside the judicial process,” the report stated.

But the military argued that eliminating administrative separations would increase the workload of its courts.

So the practice continued.

One Accusation, Then Another

Late one March afternoon in 2017, Faustino Vallo’s wife walked into a police station near Fort Hood, the massive Central Texas Army post where her husband of more than two years worked as a bomb technician.

Vallo had grabbed her by the neck and held his Glock handgun to her head during an argument nine days earlier, she told Killeen police. According to records detailing her account, Vallo told her that her life was over and fired a gun as she ran from the house. When she returned, he told her he didn’t mean for the gun to go off, according to her account in partially redacted military investigative files. Officers later found a bullet hole in a window screen.

A military agent’s investigation report details allegations Faustino Vallo’s wife made that the soldier pointed a loaded gun at her. (Highlighted by ProPublica and The Texas Tribune)

About six months later, as the Bell County Attorney’s Office was pursuing misdemeanor charges against Vallo, it received an email from an Army attorney. She asked that the case be transferred to Fort Hood, which had decided that it wanted to proceed with aggravated assault charges against the soldier, a private first class.

Another email arrived in March 2018, a year after the woman reported the alleged assault. Vallo’s case was scheduled to go to trial at Fort Hood at the end of the month but the commanding general had instead accepted his administrative separation request, an Army captain wrote to the county attorney’s office. He would be permitted to leave the Army within a week and receive an “other than honorable” discharge.

“He will not have been tried for the charges we brought against him,” the captain wrote.

A Fort Hood spokesperson declined a request to interview an Army attorney involved in Vallo’s case.

After the Army discharged Vallo, the Bell County Attorney’s Office decided to prosecute him as it had initially intended. That process took another year.

During that time, Vallo was arrested again for domestic assault, this time for attacking his girlfriend, Morgan Short, in Coryell County.

In early April 2019, Short had just poured herself a glass of wine when she and Vallo got into a disagreement. She said Vallo, who was also drinking, suddenly knocked the glass out of her hand and then pushed her down against the white-tiled living room floor. He put the full weight of his body on her back and began to choke her and then bite her, Short said in an interview with the news organizations.

Eventually, she said, Vallo let her go. She ran to her bedroom closet and prayed to God not to let her die. When Short tried to leave the house, she said Vallo put a gun in his mouth in front of the couple’s infant son and the young daughter he shared with his estranged wife.

“I don’t know why he didn’t kill me because I really feel like he was going to,” Short recalled.

Police in Copperas Cove, where the attack occurred, refused to release an incident report, but a story in the Killeen Daily Herald said officers observed several fresh injuries on Short.

On June 10, 2019, Vallo pleaded guilty in Coryell County to choking Short. He was fined and given five years deferred adjudication.

Days later, he pleaded no contest in Bell County to discharging a firearm for the incident involving his wife and received nine months deferred adjudication. He would not serve jail time if he followed certain conditions including that he have no access to firearms during that period.

Vallo, his estranged wife and the civilian defense attorney who represented him in the Bell County case declined interview requests for this story.

Bell County Attorney James E. Nichols said he wasn’t sure why the case took so long after his office took it back from the Army. He said he did not know if his attorneys were aware of Vallo’s Coryell County plea because prosecutors generally don’t get alerted that someone with a pending case has been arrested in another county.

Such information is critical and could have resulted in a harsher sentence in the Bell County case, said Miltonette Craig, an assistant professor in Sam Houston State University’s Department of Criminal Justice and Criminology. Nichols agreed more information about the case could have affected the judge’s decision.

Short also did not know about Vallo’s conviction in Bell County when he persuaded her to let him back into her life. It didn’t take long before he became aggressive again, records show.

On New Year’s Day 2020, Vallo had chugged a bottle of vodka and threatened to “beat my ass and leave me on the floor crawling,” Short recalled in an interview with the news organizations. At one point, she said, he locked her in the bedroom and spit in her face.

After struggling to get an answer from 911 operators, Short said she called her family, who eventually got through to police. Officers were dispatched to the home for a “violent domestic,” according to a partial incident report released by law enforcement.

A partial incident report from January 2020, released by the Killeen Police Department, shows Morgan Short’s family called 911 to report her allegation that Vallo was threatening her. (Highlighted by ProPublica and The Texas Tribune)

At the time of the report, Vallo was still under probation for both assaults. He wasn’t arrested. Short believes it was because he’d threatened her with physical violence but had not actually assaulted her.

In June, a Coryell County judge extended Vallo’s probation in connection with Short’s 2019 assault after he was twice arrested for drunk driving. The judge, who did not return a call for comment, required him to attend Alcoholics Anonymous meetings twice a week.

The drunk driving arrests were a violation of Vallo’s probation conditions. Craig said the judge could have revoked Vallo’s deferred adjudication and convicted him of the assault charge.

“I Don’t Remember Feeling Hope”

The true number of service members across the armed forces who were allowed to separate from the military instead of facing trial for serious charges is difficult to know.

Compared with other branches, the Army released the most complete court data to the news organizations under the federal Freedom of Information Act. Even the Army’s records are limited because they provide data only for cases that reach arraignment, meaning that the number of soldiers who were discharged as part of the practice is higher than what the news organizations’ analysis shows.

One area that provides some insight into the practice across all branches is the military’s handling of sexual assault. Congress has mandated more detailed reports on such cases as part of a larger crackdown.

According to those reports, more than 1,000 service members who were charged with sexually assaulting an adult from 2012 to 2021 were permitted to leave the military rather than face trial. Of those, 726 were in the Army.

Overall, the Army had the highest rate of service members — about 1 in 4 — who left despite being charged with sexual assault, according to an analysis of the reports. (The next highest branch was the Air Force, which had a rate of nearly 1 in 5.)

Tony Thomas, an Army specialist, was one of the soldiers.

A female soldier accused Thomas of sexually assaulting her on March 5, 2017, after they’d spent the night celebrating her 24th birthday in Anchorage, Alaska, where both were stationed. The woman, who spoke to the news organizations, agreed to be identified by her middle name, Hope.

By the end of the night, Hope was “obviously intoxicated,” a friend later told investigators. Thomas and a friend helped her to her barracks room because she couldn’t walk on her own. The friend then left, according to partially redacted investigative files that reference security footage from outside of the room. Thomas stayed behind.

Hope told investigators that she woke up to Thomas groping and kissing her breasts. She recalled him taking off her pants, turning her over and shoving her face into the futon. She said that she told him to stop but that he continued to sexually assault her, according to the files.

This military agent’s investigation report details allegations made by a soldier that a fellow service member, Tony Thomas, sexually assaulted her in her barracks room in March 2017. (Highlighted by ProPublica and The Texas Tribune)

Once Thomas left, Hope went to the friend’s room and said she’d slept with him and he would not stop when she told him to. “I feel horrible. I kept saying ‘no, no stop’ but he didn’t,” Hope said, according to her friend’s account in the investigative reports. Maybe it was her fault, Hope told her friend, because she was drunk and wearing “little” shorts. She then reported the assault to military authorities.

Later that day, Thomas acknowledged that he knew Hope was intoxicated and was incapable of providing consent, according to an investigator’s account of the interview. He said he’d made a mistake and admitted to the investigator that he sexually assaulted her, records show.

Thomas said he knew the woman was intoxicated and was unable to give consent, according to an investigator’s account of the interview. (Highlighted by ProPublica and The Texas Tribune)

Thomas declined to comment through a relative, who maintained the soldier’s innocence and said the punishment he received was “unjust.” His family indicated they plan to challenge his discharge status.

A DNA test of the woman’s shorts later detected Thomas’ semen. An Army prosecutor determined in July 2017 that there was probable cause Thomas committed sexual assault, records show.

Despite having an attorney and meeting with an investigator on the case, Hope said she was not aware of all of the evidence collected by prosecutors.

She began to feel like no one around her offered encouragement.

“I don’t remember feeling hope,” she said. “I don’t remember feeling confident that ‘OK, this is going to go before a judge and they’re going to actually believe what happened or they’re going to take me seriously.’”

More than a year after she accused Thomas of assault, Hope met again with an investigator on the case. By then, she had transferred to Fort Hood to avoid seeing her alleged attacker. She and her new husband had just learned she was pregnant. “I finally just kind of mulled it over and I was like: ‘I don’t want to take this to trial. I don’t want to sit on trial pregnant, reliving something that I want to just go away.’”

Hope said the investigator laid out various options, including that Thomas could be discharged instead of going to trial. She said that path seemed best to her at the time.

“I was trying to move on in my life,” she said.

Kennebeck, the Army’s criminal law director, said that commanders consider victim input and preference when deciding whether to take a case to court-martial or grant an administrative separation.

It is possible, however, to pursue a sexual assault case when a victim doesn’t want to testify, said Liz Boyce, general counsel and director of policy and legal at the Texas Association Against Sexual Assault. In the civilian system, she said, prosecutors commonly offer plea deals in such cases. The key is ensuring the victim is consulted about that decision, she said.

But discharges in lieu of trial are not plea bargains, so there is no conviction on a person’s record. The local district attorney in Anchorage could have considered pursuing charges against Thomas, under an agreement with the military, but it’s not clear if the Army shared information about his case.

Boyce said deciding not to pursue any possible legal punishment is “dangerous, frankly.”

“They’re not going to have any kind of repercussions the way a guilty verdict would have, the way a felony is going to follow you,” Boyce said.

Moving Forward

After six years and a lot of therapy, Hope says she wishes she’d chosen a different course.

She believes administrative separation “was a Band-Aid” for her case. “If I could go back now and know what I know now, no, hell no, I would have taken it to court,” she said.

For her part, Short wishes the Army had done more. She continues to wonder why military officials didn’t take Vallo to trial when his wife accused him of assault.

Vallo always gave her different explanations for why he was discharged from the Army, Short said. There was no easy way for her to access any documentation about that decision. It’s not anywhere online.

“It kind of blows my mind that they just kicked him out. And then didn’t proceed to press any charges,” Short said. “That’s insane to me. They’re enabling people to keep acting this way.”

History of These Separations

It’s not clear when administrative separations in lieu of court-martial began, but experts and records show that at least since the 1950s their primary purpose was to remove service members from the military who commanders believed were not fit to serve. That meant those who got in trouble for minor misconduct or military-specific offenses like being chronically late to formation, said Joshua Kastenberg, a professor at the University of New Mexico School of Law and former Air Force judge advocate.

The practice grew in popularity as about 2 million people were drafted into the military during the Vietnam War, bringing a slew of discipline problems. Near the beginning of the war, the various branches granted 424 such discharges. The number ballooned to nearly 27,000 soon after the war ended in 1976, according to a federal watchdog agency’s report.

Many soldiers who were discharged faced charges for being AWOL and other minor misconduct, according to experts and other archival records, which also indicated administrative separations were rarely used for serious criminal offenses at the time.

“Let’s be honest, you can’t court-martial everyone who is a discipline problem and who doesn’t want to be in the Army,” Fred Borch, a retired Army colonel and military history expert, said in an interview. “So I would say that the compromise was, ‘Hey, we have an administrative way to get rid of people who don’t want to be here without really being overwhelmed with courts-martial.’”

Borch, who served as an Army lawyer for 25 years before retiring in 2005, could not recall when the practice evolved to include soldiers accused of criminal acts but said, “You wouldn’t take a discharge like this for a rape or a murder or a robbery because, my general opinion would be, the person has got to go to jail.”

About the Data: How We Analyzed Administrative Separations in Lieu of Court-Martial

To examine the Army’s use of separations and resignations in lieu of trial, ProPublica, The Texas Tribune and Military Times used data from the Army Court-Martial Information System, which covers cases that were referred to the Army’s two highest trial courts dating back to 1989. The database does not include cases that were dismissed or resolved before they reached arraignment, which is a formal hearing when charges are read to the defendant.

The newsrooms analyzed cases in which soldiers had their charges withdrawn or dismissed administratively and were allowed to leave the service instead of facing trial, processes most commonly known as Chapter 10s for enlisted soldiers or resignations for the good of the service for officers.

We categorized crimes as violent using the National Institute of Justice’s definition, which counts cases in which a victim is harmed by violence. Such crimes include rape, sexual assault, physical assault, murder and robbery.

For our analysis, we included charges that fell under the following articles of the Uniform Code of Military Justice, standardized to the most recent edition of the Manual for Courts-Martial: 118 (murder and homicide), 119 (manslaughter), 120 (sexual assault and rape of an adult), 120B (sexual assault and rape of a child), 122 (robbery), 128 (physical assault), 128A (maiming) and 128B (domestic violence). Additionally, charges of striking or assaulting officers (commissioned and noncommissioned) are included in the analysis. (These were charged under articles 89, 90 and 91.) We classified cases with at least one of the above charges as violent, regardless of any other accompanying charges.

Our reporting on administrative separations focused on the Army, which is the nation’s largest military branch, has a significant presence in Texas and maintains the most complete court databases compared with the other military branches. Neither the Department of Defense nor any of the other branches provided separations data broken down by the type of charge.

Help ProPublica and The Texas Tribune Report on the Military Justice System

by Vianna Davila, Lexi Churchill and Ren Larson, ProPublica and The Texas Tribune, and Davis Winkie, Military Times

Clarence Thomas Defends Undisclosed “Family Trips” With GOP Megadonor. Here Are the Facts.

1 year 7 months ago

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In a rare public statement, Supreme Court Justice Clarence Thomas responded Friday to a ProPublica report that revealed that Thomas has, for decades, accepted luxury travel from billionaire Republican megadonor Harlan Crow and failed to disclose it.

Thomas’ brief statement acknowledges joining Crow and his wife, who he described as among his “dearest friends,” on “a number of family trips” over the years. He also defended his failure to disclose them.

“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said in the statement. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”

But seven legal ethics experts consulted by ProPublica, including former ethics lawyers for Congress and the White House, said the law clearly requires that gifts of transportation, including private jet flights, be disclosed. If Thomas is arguing otherwise, the experts said, he is incorrect.

A Supreme Court spokesperson did not immediately respond to questions for Thomas about the specifics of the advice he was given or who he consulted.

ProPublica’s story Thursday revealed that Thomas had taken international cruises on Crow’s superyacht, flown on Crow’s private jet and regularly vacationed at Crow’s private resort in the Adirondacks. In one instance, Thomas flew on Crow’s jet from Washington Dulles airport to New Haven, Connecticut, then flew back three hours later.

Thomas did not respond to detailed questions for that story. His statement Friday did not dispute ProPublica’s reporting about his trips. It also did not address broader criticisms from ethics experts and other judges that by repeatedly accepting such trips, he broke long-standing ethical norms for judges’ conduct.

In a previous statement to ProPublica, Crow said that Thomas “never asked for any of this hospitality” and that his treatment of the justice was “no different from the hospitality we have extended to our many other dear friends.”

A law passed in the wake of the Watergate scandal, the Ethics in Government Act, requires Supreme Court justices and many other federal officials to report most gifts to the public. Justices are generally required to report all gifts worth more than $415, defined as “anything of value” that they don’t repay the full cost of. Gifts are disclosed in an annual financial report that is made public.

There are exceptions, and experts parsing the legality of Thomas’ failure to disclose the travel have been focused on a carve-out known as the “personal hospitality” exemption.

The exemption states that gifts of “food, lodging, or entertainment received as personal hospitality” don’t have to be disclosed. The law defines “personal hospitality” in a way that further limits the exception. It only applies to gifts received from an individual at that person’s home or at properties that they or their family own.

(Source: Excerpt from the Ethics in Government Act. Highlighted by ProPublica.)

ProPublica asked the seven legal ethics experts about the exception and Thomas’ statement. All said that the law’s language clearly requires that gifts of transportation, such as private jet travel or cruises on a yacht, be disclosed and said Thomas appears to have violated the law by failing to report them.

“I don’t think you can make an argument that private jet flights need not be included under the statute,” said Stephen Gillers, a professor emeritus and ethics expert at New York University law school.

”It is absolutely impossible that anyone could reasonably interpret that exception to apply to private jet flights,” said Walter Shaub, former director of the U.S. Office of Government Ethics. “Not in any universe.”

Richard Painter, who served as the chief ethics lawyer for the George W. Bush White House, said Thomas’ explanation of why he didn’t disclose the trips “makes absolutely no sense.” Painter emphasized that the exemption only covers three categories: food, lodging and entertainment. Private jet flights would fall into none of those, he said.

“Justice Thomas likes to focus on the language of authoritative texts, and that’s not what he’s doing in this statement,” said Kathleen Clark, a legal ethics expert at Washington University in St. Louis.

Thomas himself disclosed at least one private jet flight from Crow, in his financial disclosure for 1997. He has not disclosed a trip on Crow’s plane in more than 20 years.

Reviewing other federal judges’ financial disclosure filings, ProPublica found at least six examples of judges disclosing gifts of private jet travel in recent years.

In the Ethics in Government Act, Congress explicitly stated that the law covers Supreme Court justices. But Chief Justice John Roberts has raised questions about Congress’ power to impose rules on the Supreme Court.

“The Court has never addressed whether Congress may impose those requirements on the Supreme Court,” Roberts wrote roughly a decade ago in an annual report on the judiciary. “The Justices nevertheless comply with those provisions.”

Thomas’ statement Friday does not cite the law itself but rather “disclosure guidelines” for the judiciary. The guidelines elaborate on how the law applies to the courts and are issued by the policymaking arm of the judiciary.

Thomas’ statement refers to a March update of the judiciary’s guidelines for financial disclosure. “It is, of course, my intent to follow this guidance in the future,” he said. The new guidelines explicitly say that transportation is not food, lodging or entertainment and so must be disclosed.

Questions about Thomas’ compliance with the disclosure law have come up in the past. In 2011, he announced that he was amending years’ worth of his disclosure forms because he had failed to disclose the sources of his wife, Ginni’s, income.

At the time, he cited a “misunderstanding of the filing instructions.”

Do you have any tips on the courts? Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240.

by Joshua Kaplan, Justin Elliott and Alex Mierjeski

IRS Strategic Plan Vows to Amp Up Audits of the Rich

1 year 7 months ago

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Flush with $80 billion in new funding, the IRS is aiming to ramp up audits of wealthy taxpayers and large corporations, according to a strategic operating plan it released Thursday. The 150-page plan also includes a lengthy list of proposed changes intended to improve customer service, upgrade the agency’s notoriously outdated computer systems, boost hiring and even “explore making it easier” to file tax returns directly with the IRS for free.

Until a spurt of funding during the early pandemic and then the passage of the Inflation Reduction Act, the IRS had been hobbled by a decade of budget cuts, causing audit and enforcement rates to plummet. As the report notes: “Taxpayers earning $1 million or more were subject to an audit rate of just 0.7% in 2019 — a sharp decline from 7.2% in 2011. We will increase enforcement for high-income and high-wealth individuals to help ensure they are paying the taxes they owe.” It cites employment taxes, excise taxes, and estate and gift taxes as areas of focus. The plan promises to comply with a Treasury Department directive not to increase audit rates for small businesses and people making $400,000 or less.

ProPublica has been chronicling the tax agency’s woes for almost five years, first in a series titled “Gutting the IRS,” which examined the slashing of its budget and its consequences in reduced enforcement, as well as in decreased volume and quality of audits of the rich. ProPublica also published articles that showed how a person making $20,000 was more likely to be audited than a person making $400,000 and a map that revealed the geographic overlay of poverty, race and high audit rates.

ProPublica followed its first IRS series with “The Secret IRS Files,” a second multiyear series that has explored how the U.S. tax system favors the rich, including how its focus on income allows people with massive wealth to sidestep taxes on an epic scale — to the point where some of the wealthiest people, such as Jeff Bezos, had years in which they paid no federal tax.

In comments to The Washington Post about the new IRS plan, Deputy Treasury Secretary Wally Adeyemo said: “One of the things that people talk about when they say that the tax code is unfair is, if you’re low-income, you’re more likely to be audited than if you’re wealthy. ... That is not consistent with tax fairness.”

The plan, released by recently confirmed IRS Commissioner Daniel Werfel, aligns with the remarks made by President Joe Biden in his most recent State of the Union address: “I think a lot of you at home agree with me that our present tax system is simply unfair,” Biden said. He reiterated his proposal for what he calls his billionaire minimum tax, which would mandate a 20% minimum levy on income, including unrealized capital gains, for people with a net worth of $100 million or more.

The IRS plan also includes an initiative to “study the feasibility” of allowing taxpayers to file directly with the agency. That study will likely face opposition from companies such as Intuit, the maker of the widely used TurboTax software. In another series, “The TurboTax Trap,” ProPublica documented in exhaustive detail multiyear efforts taken by tax prep companies to undercut free tax-filing.

Sen. Ron Wyden, D-Ore., chair of the Senate Finance Committee, applauded the IRS plan. “The bulk of this funding,” he noted in a statement, “will go toward building up the IRS’s capacity to root out cheating by sophisticated, wealthy individuals and companies with highly complex structures.” (The Inflation Reduction Act legislation directed an additional $45.6 billion to IRS enforcement, through September 2031, on top of its previously allotted budget.)

Republicans were less enthusiastic, calling the plan “big government at its worst,” among other things. In January, House Republicans renewed their attempts to reduce the agency’s funding.

Help Us Report on Taxes and the Ultrawealthy

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by Jeff Ernsthausen

Homeless Shelters Aren’t Equipped to Deal With New Mexico’s Most Troubled Foster Kids. Police See It for Themselves.

1 year 7 months ago

This story contains depictions of mental illness and self-harm and images of law enforcement restraining minors.

If you or someone you know needs help, here are a couple of resources:

  • Call the National Suicide Prevention Lifeline: 988
  • Text the Crisis Text Line from anywhere in the U.S. to reach a crisis counselor: 741741

This article was produced for ProPublica’s Local Reporting Network in partnership with Searchlight New Mexico. Sign up for Dispatches and Searchlight's free newsletter to get stories like this one as soon as they are published.

Near the pumps of a gas station in Las Cruces, New Mexico, a teenager in foster care sat in the back of a squad car, sobbing and gasping for air. Her hands were cuffed and her legs were bound in a “wrap restraint” to prevent her from thrashing about. A protective foam helmet covered her head.

The police had been called to find her after she ran away from a nearby youth homeless shelter, where she had been placed by the state child welfare agency.

It was at least the 16th time in six months that staff at shelters had called 911 about the girl, including five calls for suicide attempts or threats. This time, police caught up with her and another runaway foster child at the gas station.

After officers put the 16-year-old in the back of a police SUV, she became agitated and started kicking and hitting the vehicle. Officers expressed frustration about having to deal with yet another child in the custody of the state Children, Youth and Families Department.

“I don’t understand why they do that, why they bring high-risk kids here, and they can’t even handle them?” said Officer Lucy Milks, recorded by her body camera.

The girl pushed and scratched Milks when she tried to handcuff her. That’s when officers brought out the wrap restraint. Three of them held the girl on the pavement and bound her legs, her white sneakers poking out from under the dark fabric and reflective strips.

Officers tried to figure out what to do next. “This happens all the time,” one of the nine officers who responded to the call said to another. “It’s so frustrating.”

A frame from a police body camera video shows a teenage foster girl in a squad car after officers put her in a “wrap restraint” to prevent her from thrashing around. (Body camera footage obtained by ProPublica and Searchlight New Mexico)

More than 1,100 times from January 2019 through June 2022, someone at a shelter housing foster kids in New Mexico called emergency dispatchers for help with runaways, violent outbursts, disorderly conduct or mental health crises.

Many of the kids placed in these shelters by CYFD have severe mental health or behavioral problems, including PTSD and depression, but shelters don’t provide psychiatric services. Kids break down, get into fights, destroy property, threaten staff or run away. Sometimes they say they want to kill themselves or try to.

In these moments of crisis, it’s police and paramedics, not mental health professionals, who intervene.

Searchlight New Mexico and ProPublica set out to understand what happens when shelters call 911. We obtained nearly 6,000 pages of dispatch logs, dozens of call recordings and more than 120 incident reports. In addition, we reviewed 26 hours of body camera videos for 16 incidents involving foster teens who appeared repeatedly in emergency calls.

Videos show police arriving to find broken windows and doors, sobbing teens and rattled staffers. Officers know little about the kids and have trouble getting guidance from CYFD. They’re often bewildered about what to do.

“We’re trying to figure out why, like — what we’re doing here,” a Bernalillo County sheriff’s deputy told his supervisor after responding to a call at a shelter outside Albuquerque in October 2021. “We’re a little confused.”

Searchlight and ProPublica contacted every law enforcement agency involved in incidents in this story; they didn’t respond, declined to comment or didn’t take issue with our findings.

Experts say encounters like these can damage a child’s mental health for years. Virtually every foster child is dealing with extraordinary psychological damage, and many have had run-ins with police, said Tim Gardner, legal director of Disability Rights New Mexico. Dealing with law enforcement when they’re in crisis, he said, “just further traumatizes them.”

Kids like this are not supposed to be in shelters. Three years ago, the state promised to stop housing kids in shelters, offices and other places that don’t provide the mental health care that they need — except in “extraordinary circumstances” when needed to protect the child. CYFD has delivered on just a portion of those promises.

In the meantime, the referrals keep coming.

“We've had countless conversations with the department to say, hey, these are not kids that should be in shelter,” said Jennica Bustamante, a manager at My Friend’s Place, the facility in Las Cruces that the 16-year-old ran away from. “These are not kids that we can properly care for, that we can safely care for.”

Emily Martin, CYFD Protective Services Division chief, said the department exhausts every other option before placing a child at a shelter; the number of placements, according to figures provided by Martin, has dropped by about 40% since 2019. Since last fall, the department has licensed two more specialized group homes, which they say offer expanded mental health services.

Currently, she said, some 50 foster youth are cycling in and out of shelters in New Mexico. That’s a small fraction of all children in custody of CYFD’s protective services office.

In the gas station parking lot, a police officer asked the 16-year-old what she was doing in southern New Mexico when she was from Albuquerque, roughly 200 miles away. “There’s nobody that would take me in,” the teenager replied.

Officers took the girl to a hospital for a medical evaluation because they had used force on her. She was escorted through the emergency room in handcuffs. That night, she was back at the shelter.

Five days later, officers were called to find her again.

Crisis. Call. Repeat.

When foster kids run away, shelters call 911.

When kids break down or express suicidal thoughts, shelters call 911.

When kids hurt or threaten others, shelters call 911.

Shelter managers say they often have little choice. They are required to notify police about runaways so kids can be located or entered in a missing persons database. And kids in crisis often need to be taken to a hospital for a psychiatric evaluation.

Of the more than 1,100 calls regarding shelter residents, more than 460 were for physical violence, disorderly conduct or mental health crises. That includes more than 70 calls for suicidal youth. At least 650 calls were for runaways.

These records didn’t always say whether a shelter resident was in CYFD custody, but managers of shelters involved in the vast majority of calls said most of their residents are foster kids. All of the body camera videos reviewed by Searchlight and ProPublica involved foster kids, according to police records.

This frame from a deputy’s body camera video, blurred by the sheriff’s department, shows a foster child restrained on a gurney after he tried to run when deputies told him he would be taken to a hospital for a psychiatric evaluation. It was at least the fifth time in 11 days law enforcement had responded to calls about him. (Body camera footage obtained by ProPublica and Searchlight New Mexico)

After police get involved, CYFD often moves the kids to another shelter. And the cycle repeats. The girl at the gas station was one of at least 24 foster kids who were the subject of calls from three or more shelters in the period analyzed by the news outlets.

In 2021, a Bernalillo County sheriff’s deputy arrived at the Amistad Crisis Shelter in Albuquerque’s South Valley after that same girl tried to strangle herself. She was quietly telling another deputy that she was depressed.

“You look familiar. Have I talked to you before?” Deputy Adrienne Seay asked the girl, their conversation recorded on her body camera.

Seay realized she had — four months before, when she had responded to a call at Amistad after the girl had cut herself and made suicidal threats. In that short time span, the girl had bounced around among at least four shelters throughout New Mexico and had been the subject of at least eight calls to police, dispatch records show.

This time, EMTs took the girl to a hospital for a psychiatric evaluation. She asked a deputy to fetch her stuffed animal first.

Deputies responded to calls at Amistad for residents in crisis more than once a week, on average, over three and a half years, according to dispatch records. Every deputy in the Bernalillo County Sheriff’s Office, the largest in New Mexico, has responded to calls at the youth shelter, said Undersheriff Aaron Williamson.

Sometimes law enforcement must stay with kids for hours, unable to respond to other calls, as they wait for a CYFD employee to show up or tell them what to do, according to videos and interviews with law enforcement.

“So now we’re waiting. We’re waiting for somebody to show up that can make a decision about this kid’s care,” Bernalillo County Sheriff’s Office Lt. Amy Dudewicz said in an interview. “It is a frustration. And it is a huge concern for those of us that are answering those calls, like, is this the best response that we have to offer?”

CYFD gives staff three hours to respond in such cases, department spokesperson Rob Johnson said in an email. Staff are almost always working on something else and could be hours away. “That’s why the department routinely sends a nearby case manager, even if that person might not know anything about that young person,” he said.

Even CYFD staff themselves sometimes call 911 seeking help.

Over the course of 2020 and 2021, dozens of 911 calls were made from the agency’s Pine Tree office, a complex in Albuquerque where foster kids sleep when CYFD can’t find any other place for them. At least 14 calls were for violent behavior, runaways or mental health crises.

CYFD told Searchlight and ProPublica that was during the heart of the pandemic, when shelters were limited in how many kids each could accept. But they acknowledged that kids continue to sleep at the office.

One of those calls involved the same 16-year-old girl. In October 2021 she broke a window at the office building. CYFD staff called police and urged officers to arrest her, saying they planned to press charges.

“It’s not safe for staff or any of our youth right now to have her there in the state of mind she’s in,” Leticia Salinas, a CYFD regional manager, told state police officer Kevin Smith.

But the girl’s actions didn’t warrant juvenile detention, Smith replied. “It’s a nonviolent crime. They’re not going to book her,” he said.

Staff escorted her back inside for the night. She ran away the next day, and state police were called again.

Sweeping Up the Pieces

When police arrive, they see the fallout from placing foster kids with serious mental health problems in facilities that aren’t equipped to deal with them. Staffers at those facilities say they don’t always know foster kids’ backgrounds and sometimes have to handle volatile or violent incidents. Officers’ body cameras record it all.

Managers of every shelter that housed foster kids during the period analyzed by Searchlight and ProPublica said they had taken in kids without being informed of their mental health conditions or histories of aggressive or suicidal behavior. If staff had been informed, they could’ve taken steps to safeguard residents, they said.

CYFD’s Johnson disputed that contention. “That’s not what has been expressed to us by the shelters,” he told the news outlets. “​​We know that the shelters struggle sometimes, but they have the option to decline admission.”

He said shelters receive a screening form that includes information about prior arrests and any history of substance use, aggression, self-harm, suicide or psychosis. Shelter managers say it’s often not complete.

In August 2020, CYFD placed a 15-year-old at Youth Shelters & Family Services in Santa Fe shortly after he was charged with battery of a police officer and stealing a car. A shelter manager told police that CYFD didn’t disclose that the boy had a juvenile probation officer until a few days after he was placed there.

About two weeks into his stay, the boy smashed several windows and threatened to kill a staff member while wielding a broken piece of door frame, according to a police report. Employees frantically dialed 911. Police located the boy in a field, his fists bleeding from punching out windows, and charged him with aggravated assault and criminal damage to property.

“We Need People Here Now”

In August 2020, a shelter staffer in Santa Fe called 911 saying a resident was threatening staff and destroying property. The incident quickly escalated, and the sound of breaking glass can be heard in the background.

When police responded, Jennifer Reese, a shelter manager, told Officer Mariah Gonzales about the boy’s history, their conversation recorded by Gonzales’ body camera. Reese declined to comment for this story, saying she was bound by a confidentiality agreement.

“Is this a common thing you guys experience, with no one communicating with each other?” Gonzales asked as Reese swept up glass from the broken office door.

Reese said it was. “If we had known what the deal was, then we could have maybe prevented this,” she said. “But we had no idea.”

First image: A frame from a police body camera video showing damage, including a broken glass door, caused by a 15-year-old at a shelter in Santa Fe. Second image: A frame from another officer’s body camera video during the boy’s arrest in a nearby field. (Body camera footage obtained by ProPublica and Searchlight New Mexico)

Reese recounted how CYFD had placed a girl at the shelter about a month earlier without her medications and without informing staff of her medical history. Several days later, she was found in the backyard trying to cut her wrists.

CYFD later tried to place her in the same shelter but still didn’t have her medications. Reese told Gonzales the shelter wouldn’t accept her — “not because we don’t want to help her, but we can’t help her.”

CYFD should have taken care of her meds, Reese said: “She’s a little kid. I mean, it’s bad enough when it’s a grownup, but a little kid? Do your job.”

“Yeah, it’s frustrating,” Gonzales replied.

Johnson, the CYFD spokesperson, said caseworkers must hand a foster child’s medication to a shelter employee. “Why wouldn’t a youth have meds?” Maybe the prescription hasn’t been filled, he said. “Maybe the youth had meds at a foster-home placement and didn’t bring them. Maybe they’ve been on the run.”

After taking photos of the damage, Gonzales told Reese to let her know if she needed anything else.

“Hopefully I won’t see you guys for a long time,” Reese replied.

Santa Fe police would be called to the shelter 44 more times for incidents involving residents in the next 17 months.

“A Survival Response”

Experts, shelter staff and even police agree: Cops aren’t the best people to deal with these kids. The mere presence of police can be triggering to a youth in crisis. Sometimes kids fight back and get into more trouble.

In September 2021, police and EMTs responded to a shelter in Hobbs after a foster teenager destroyed property and allegedly hit a staffer. She struggled and made suicidal statements as officers tried to restrain her, drawing their stun guns three times in the process. The girl was forced onto a gurney so she could be taken for a psychiatric evaluation, screaming as she was loaded into an ambulance.

A frame from police body camera video, blurred by police, shows an officer threatening to use his stun gun on a handcuffed foster girl because she was struggling as paramedics and another officer held her down. The girl, who was not tased, was charged with several offenses including assault of an officer and destruction of property. (Body camera footage obtained by ProPublica and Searchlight New Mexico)

The next month near Albuquerque, after a teenager threatened shelter staff, an on-call CYFD employee unfamiliar with his case said the boy should go to a hospital for a psychiatric evaluation, according to police records and body camera video. When the kid tried to run, deputies handcuffed him and EMTs sedated him. Then CYFD changed course, telling emergency responders not to take the boy to the hospital. By then, he was already on a gurney.

When a police officer chased down a 17-year-old runaway in Taos at about the same time, the girl turned around and punched him in the face. It was at least her sixth runaway incident in the previous three months, according to dispatch logs.

“I’m sorry I attacked you, but I did not feel safe,” she told the officer at the station. “I've been getting hurt so many times, and that’s why I'm running away, because I don’t want to get hurt no more.”

A frame from a police body camera video showing officers detaining a 17-year-old foster girl after she attacked an officer who chased her down. She was charged with battery and interfering with a police officer. (Body camera footage obtained by ProPublica and Searchlight New Mexico)

Children older than 14 have the right to refuse placements, and it’s not a crime to run away, said Martin at CYFD. But when they do, police have to be called, in part because CYFD needs to determine the children aren’t in danger. “I’m worried about them” when they’re on the run, Martin said. “I want them to be safe.”

Scenes like the ones captured by body cameras are “extremely predictable,” said George Davis, CYFD’s former chief psychiatrist and a leader in efforts to change how the department deals with foster kids.

These kids can have extreme mood swings, Davis said, “because of the trauma they’ve already been through.” Putting them in a shelter, rather than a foster home where they can access appropriate mental health care, is almost certainly going to cause an emergency, he said.

“Reacting to police this way is a survival response for them,” he said.

In many of the videos viewed by Searchlight and ProPublica, police officers try to defuse the situation, even attempting to counsel teenagers. Sometimes they sit with a child in crisis for an hour or more, talking to them as they wait for the child to be transferred to another shelter or sent for a psychiatric evaluation.

In November 2020, a teenage girl in foster care threatened to kill herself at the DreamTree Project shelter in Taos. A team of officers stayed with her on the front porch and tried for over an hour to talk her down.

“I’ve been here at DreamTree for two months. I can’t do this anymore!” she cried to the officers. “I just want the pain to end.”

“You’re 15 years old, you’re a young lady. You have your whole future ahead of you,” Officer Gilbert Martinez said. “You don’t want to give up. I have kids. They’re already older, but if I ever heard my daughter say, ‘That was it,’ I would be devastated.”

Roughly an hour later, two CYFD employees arrived.

“She needs to go to the hospital,” one said to the other. Then they would try to find the girl a bed at another shelter. “You gotta start calling and looking around.”

by Ed Williams, Searchlight New Mexico, and Joel Jacobs, ProPublica

Lawmakers Call for Investigation and Ethics Reforms in Response to ProPublica Report on Clarence Thomas

1 year 7 months ago

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Influential Democratic lawmakers have called for immediate investigations and vowed to create stricter ethics rules following a ProPublica report that revealed Justice Clarence Thomas has, for decades, failed to disclose luxury trips he received from a real estate magnate and conservative megadonor.

Illinois Sen. Dick Durbin, who chairs the Senate Judiciary Committee — influential for its role in vetting and confirming Supreme Court nominees — said his panel is calling for an “enforceable code of conduct” for justices. “The ProPublica report is a call to action, and the Senate Judiciary Committee will act,” Durbin said.

Lawmakers and advocates have long called for codified ethics rules that prohibit the type of behavior uncovered by ProPublica’s investigation.

For more than two decades, records and interviews show, Thomas has accepted luxury trips virtually every year from Dallas billionaire Harlan Crow without disclosing them. Thomas has vacationed on Crow’s superyacht around the globe, flown on Crow’s jet and typically spends about a week every summer at Crow’s private resort in the Adirondacks, the investigation found.

These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices and other federal officials to disclose most gifts, ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.

A Supreme Court spokesperson didn’t immediately respond to a request for comment regarding the lawmakers’ calls for investigations.

Thomas has not responded to ProPublica’s questions about his travel. Crow told ProPublica that Thomas “never asked for any of this hospitality” and that his treatment of the justice was “no different from the hospitality we have extended to our many other dear friends.”

Crow said he has never discussed a pending case with Thomas. “We have never sought to influence Justice Thomas on any legal or political issue,” he said.

While justices are required by law to disclose most gifts, there are few rules on what gifts justices can accept. That’s in contrast to the other branches of government. Members of Congress are generally prohibited from taking gifts worth $50 or more and would need pre-approval from an ethics committee to take many of the trips Thomas has accepted from Crow.

On Thursday, a growing chorus of Democratic lawmakers said Thomas’ failure to disclose the luxury vacations is an example of why public trust in the Supreme Court is faltering.

Maryland Sen. Chris Van Hollen said in a statement that Americans’ confidence in the Supreme Court is “tanking because of this kind of conduct.”

“We need answers,” he said. “And the Court needs a code of ethics.”

Rhode Island Sen. Sheldon Whitehouse said in a statement that the Supreme Court has lost its ethical compass, calling for Chief Justice John Roberts to open an investigation. “It’s no wonder that the American people are losing faith in the idea that they can get a fair shake before the nation’s highest court when they see a Supreme Court justice openly flouting basic disclosure rules in order to pal around with billionaires in secret,” he said.

This year, Whitehouse and others introduced a bill that would strengthen the Supreme Court’s disclosure and recusal rules, among other reforms. In his statement, the senator called for a hearing and vote on the bill.

“The Supreme Court urgently needs an enforceable system for holding justices accountable,” he said.

Massachusetts Sen. Elizabeth Warren said Americans deserve a judiciary that is “accountable to the rule of law, not wealthy Republican donors.” ProPublica’s reporting, she added, “is a stark reminder that judges should be held to the highest ethical standards and free from conflicts of interest.”

So far, no current GOP lawmakers have addressed the revelations publicly. Sen. Lindsey Graham, ranking member for Republicans on the Senate Judiciary Committee, did not immediately respond to requests for comment. Neither did the Republican-led House Judiciary Committee.

At least two Democratic representatives have called for Thomas to be impeached or resign.

“Justice Thomas must resign immediately,” said Georgia Rep. Hank Johnson, a member of the House Judiciary Committee. Failing that, Johnson said, fellow justices should censure Thomas and the Department of Justice should investigate potential federal crimes “to determine whether Justice Thomas remains fit to retain his license to practice law.”

New York Rep. Alexandria Ocasio-Cortez said on Twitter: “This is beyond party or partisanship. This degree of corruption is shocking — almost cartoonish. Thomas must be impeached.”

Do you have any tips on the courts? Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240.

Brett Murphy contributed reporting.

by Justin Elliott, Joshua Kaplan and Alex Mierjeski

Feds Advance Portable Generator Safety Rule to Prevent Carbon Monoxide Poisoning

1 year 7 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

This article was also produced in partnership with NBC News.

BETHESDA, Md. — The federal government is moving forward with sweeping new regulations to make portable generators safer, citing the increasing number of deaths they cause and the failure of manufacturers to protect consumers.

On Wednesday, the Consumer Product Safety Commission voted unanimously to advance a proposal that would require portable generators to emit less carbon monoxide and to shut off automatically when the deadly gas reaches a certain level. The invisible and odorless gas emitted by the devices claims an average of 85 lives a year, making generators one of the deadliest consumer products the CPSC regulates.

If the proposal is finalized, it will be the first time that the federal government will require companies to manufacture generators that protect consumers against carbon monoxide poisoning — the most significant step that the agency has taken after decades of studying the hazard.

“This issue has been going on for too long, and too many people have been dying each year,” CPSC Chair Alexander Hoehn-Saric said shortly after Wednesday’s vote. “It’s a tremendous step forward.”

The agency’s proposal comes in the wake of an investigation by NBC News, ProPublica and The Texas Tribune that revealed the lack of safeguards underpinning the worst carbon monoxide poisoning event in U.S. history. In Texas, at least 19 residents died from carbon monoxide poisoning and more than 1,400 others were treated in emergency rooms during a winter storm that pummeled the state in 2021, the news organizations found. At least 10 of those deaths involved generators.

“The importance of safety for portable generators will only grow as demand for them grows in the face of extreme weather events,” Commissioner Mary Boyle said during Wednesday’s meeting.

The Portable Generator Manufacturers’ Association, the industry’s largest trade group, said the agency had “no legal authority” to implement the rule that it is proposing, pointing to safeguards that the industry has created.

“There is a voluntary consumer product safety standard that is effective at preventing deaths and injuries and will have substantial compliance by the industry,” Joseph Harding, the group’s technical director, said in a statement ahead of the vote. The industry group declined to comment afterward.

Under federal law, once manufacturers propose voluntary safety standards, the CPSC can only create mandatory ones if it can prove that the industry’s approach doesn’t work or that not enough manufacturers have adopted it.

Created in 2018 to ward off the federal government’s last attempt to intervene, the trade group’s safety standards are more lenient than what the agency is now proposing: They do not restrict how much carbon monoxide generators can emit and have a higher threshold for automatically shutting off the device.

In 2022, two months after the news organizations ​​detailed the deadly cost of the government’s failure to regulate portable generators, the agency concluded that the industry’s efforts were inadequate. It found that less than a third of companies embraced the voluntary safeguards and that manufacturers had not done enough to prevent carbon monoxide poisoning.

“This problem will not correct itself. In fact, we expect incidents with consumers dying or being injured will likely increase,” Janet Buyer, a CPSC engineering project manager, told the commissioners during a recent meeting, urging them to adopt more stringent safeguards.

Buyer pointed to a Louisiana incident, reported by the news organizations, following Hurricane Ida in 2021: A woman and her two children were killed by carbon monoxide from a portable generator that was placed outside, with the exhaust inches from their back door and pointing inside.

The Portable Generator Manufacturers’ Association has disputed that the device was at fault, saying the user did not appear to have followed warning label instructions. Harding later said one of the labels on the machine directed users to point “engine exhaust away from occupied structures.”

But Buyer said it is not uncommon for carbon monoxide from generators to filter into homes — a scenario that happened 63 times in the aftermath of Hurricane Ida in the New Orleans area. The generator in the case that she highlighted had an automatic shut-off sensor, but it’s unclear whether it activated. That’s why mandatory standards are necessary, Buyer said.

The Portable Generator Manufacturers’ Association also disputed the CPSC’s conclusion that few manufacturers are adopting the voluntary standards. An estimated 60% of available generators will have such safety features by the third quarter of 2023, Susan Orenga, executive director of the trade group, said in a statement.

The public has 60 days to comment on the CPSC’s proposed rule, which the agency can modify in response. The commission will vote on the final version in September.

by Perla Trevizo, ProPublica and The Texas Tribune, and Suzy Khimm, NBC News

Clarence Thomas and the Billionaire

1 year 7 months ago

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Update, April 7, 2023: Since publication, Justice Clarence Thomas has made a public statement defending his undisclosed trips.

In late June 2019, right after the U.S. Supreme Court released its final opinion of the term, Justice Clarence Thomas boarded a large private jet headed to Indonesia. He and his wife were going on vacation: nine days of island-hopping in a volcanic archipelago on a superyacht staffed by a coterie of attendants and a private chef.

If Thomas had chartered the plane and the 162-foot yacht himself, the total cost of the trip could have exceeded $500,000. Fortunately for him, that wasn’t necessary: He was on vacation with real estate magnate and Republican megadonor Harlan Crow, who owned the jet — and the yacht, too.

Clarence Thomas and his wife, Ginni, front left, with Harlan Crow, back right, and others in Flores, Indonesia, in July 2019. (via Instagram)

For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he has vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.

The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.

These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.

Get in Touch

ProPublica plans to continue reporting on the judiciary. If you have information about Harlan Crow and Justice Clarence Thomas, travel by Supreme Court justices or anything else we should know about the judiciary, please get in touch. Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240.

Thomas did not respond to a detailed list of questions.

In a statement, Crow acknowledged that he’d extended “hospitality” to the Thomases “over the years,” but said that Thomas never asked for any of it and it was “no different from the hospitality we have extended to our many other dear friends.”

Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country. By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said.

“It’s incomprehensible to me that someone would do this,” said Nancy Gertner, a retired federal judge appointed by President Bill Clinton. When she was on the bench, Gertner said, she was so cautious about appearances that she wouldn’t mention her title when making dinner reservations: “It was a question of not wanting to use the office for anything other than what it was intended.”

Virginia Canter, a former government ethics lawyer who served in administrations of both parties, said Thomas “seems to have completely disregarded his higher ethical obligations.”

“When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust,” said Canter, now at the watchdog group CREW. “Quite frankly, it makes my heart sink.”

When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust. Quite frankly, it makes my heart sink.

—Virginia Canter, former government ethics lawyer

ProPublica uncovered the details of Thomas’ travel by drawing from flight records, internal documents distributed to Crow’s employees and interviews with dozens of people ranging from his superyacht’s staff to members of the secretive Bohemian Club to an Indonesian scuba diving instructor.

Federal judges sit in a unique position of public trust. They have lifetime tenure, a privilege intended to insulate them from the pressures and potential corruption of politics. A code of conduct for federal judges below the Supreme Court requires them to avoid even the “appearance of impropriety.” Members of the high court, Chief Justice John Roberts has written, “consult” that code for guidance. The Supreme Court is left almost entirely to police itself.

There are few restrictions on what gifts justices can accept. That’s in contrast to the other branches of government. Members of Congress are generally prohibited from taking gifts worth $50 or more and would need pre-approval from an ethics committee to take many of the trips Thomas has accepted from Crow.

Thomas’ approach to ethics has already attracted public attention. Last year, Thomas didn’t recuse himself from cases that touched on the involvement of his wife, Ginni, in efforts to overturn the 2020 presidential election. While his decision generated outcry, it could not be appealed.

Crow met Thomas after he became a justice. The pair have become genuine friends, according to people who know both men. Over the years, some details of Crow’s relationship with the Thomases have emerged. In 2011, The New York Times reported on Crow’s generosity toward the justice. That same year, Politico revealed that Crow had given half a million dollars to a Tea Party group founded by Ginni Thomas, which also paid her a $120,000 salary. But the full scale of Crow’s benefactions has never been revealed.

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Long an influential figure in pro-business conservative politics, Crow has spent millions on ideological efforts to shape the law and the judiciary. Crow and his firm have not had a case before the Supreme Court since Thomas joined it, though the court periodically hears major cases that directly impact the real estate industry. The details of his discussions with Thomas over the years remain unknown, and it is unclear if Crow has had any influence on the justice’s views.

In his statement, Crow said that he and his wife have never discussed a pending or lower court case with Thomas. “We have never sought to influence Justice Thomas on any legal or political issue,” he added.

In Thomas’ public appearances over the years, he has presented himself as an everyman with modest tastes.

“I don’t have any problem with going to Europe, but I prefer the United States, and I prefer seeing the regular parts of the United States,” Thomas said in a recent interview for a documentary about his life, which Crow helped finance.

“I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it,” Thomas said. “I come from regular stock, and I prefer that — I prefer being around that.”

“You Don’t Need to Worry About This — It’s All Covered”

Crow’s private lakeside resort, Camp Topridge, sits in a remote corner of the Adirondacks in upstate New York. Closed off from the public by ornate wooden gates, the 105-acre property, once the summer retreat of the same heiress who built Mar-a-Lago, features an artificial waterfall and a great hall where Crow’s guests are served meals prepared by private chefs. Inside, there’s clear evidence of Crow and Thomas’ relationship: a painting of the two men at the resort, sitting outdoors smoking cigars alongside conservative political operatives. A statue of a Native American man, arms outstretched, stands at the center of the image, which is photographic in its clarity.

A painting that hangs at Camp Topridge shows Crow, far right, and Thomas, second from right, smoking cigars at the resort. They are joined by lawyers Peter Rutledge, Leonard Leo and Mark Paoletta, from left. (Painting by Sharif Tarabay)

The painting captures a scene from around five years ago, said Sharif Tarabay, the artist who was commissioned by Crow to paint it. Thomas has been vacationing at Topridge virtually every summer for more than two decades, according to interviews with more than a dozen visitors and former resort staff, as well as records obtained by ProPublica. He has fished with a guide hired by Crow and danced at concerts put on by musicians Crow brought in. Thomas has slept at perhaps the resort’s most elegant accommodation, an opulent lodge overhanging Upper St. Regis Lake.

The mountainous area draws billionaires from across the globe. Rooms at a nearby hotel built by the Rockefellers start at $2,250 a night. Crow’s invitation-only resort is even more exclusive. Guests stay for free, enjoying Topridge’s more than 25 fireplaces, three boathouses, clay tennis court and batting cage, along with more eccentric features: a lifesize replica of the Harry Potter character Hagrid’s hut, bronze statues of gnomes and a 1950s-style soda fountain where Crow’s staff fixes milkshakes.

First image: A lodge at Topridge where Thomas has stayed. Second image: Thomas fishing in the Adirondacks. (First image: Courtesy of Carolyn Belknap. Second image: Via NYup.com.)

Crow’s access to the justice extends to anyone the businessman chooses to invite along. Thomas’ frequent vacations at Topridge have brought him into contact with corporate executives and political activists.

During just one trip in July 2017, Thomas’ fellow guests included executives at Verizon and PricewaterhouseCoopers, major Republican donors and one of the leaders of the American Enterprise Institute, a pro-business conservative think tank, according to records reviewed by ProPublica. The painting of Thomas at Topridge shows him in conversation with Leonard Leo, the Federalist Society leader regarded as an architect of the Supreme Court’s recent turn to the right.

In his statement to ProPublica, Crow said he is “unaware of any of our friends ever lobbying or seeking to influence Justice Thomas on any case, and I would never invite anyone who I believe had any intention of doing that.”

“These are gatherings of friends,” Crow said.

Crow has deep connections in conservative politics. The heir to a real estate fortune, Crow oversees his family’s business empire and recently named Marxism as his greatest fear. He was an early patron of the powerful anti-tax group Club for Growth and has been on the board of AEI for over 25 years. He also sits on the board of the Hoover Institution, another conservative think tank.

A major Republican donor for decades, Crow has given more than $10 million in publicly disclosed political contributions. He’s also given to groups that keep their donors secret — how much of this so-called dark money he’s given and to whom are not fully known. “I don’t disclose what I’m not required to disclose,” Crow once told the Times.

Crow has long supported efforts to move the judiciary to the right. He has donated to the Federalist Society and given millions of dollars to groups dedicated to tort reform and conservative jurisprudence. AEI and the Hoover Institution publish scholarship advancing conservative legal theories, and fellows at the think tanks occasionally file amicus briefs with the Supreme Court.

I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that — I prefer being around that.

—Clarence Thomas Listen to Thomas speak, from the documentary “Created Equal.”

On the court since 1991, Thomas is a deeply conservative jurist known for his “originalism,” an approach that seeks to adhere to close readings of the text of the Constitution. While he has been resolute in this general approach, his views on specific matters have sometimes evolved. Recently, Thomas harshly criticized one of his own earlier opinions as he embraced a legal theory, newly popular on the right, that would limit government regulation. Small evolutions in a justice’s thinking or even select words used in an opinion can affect entire bodies of law, and shifts in Thomas’ views can be especially consequential. He’s taken unorthodox legal positions that have been adopted by the court’s majority years down the line.

Soon after Crow met Thomas three decades ago, he began lavishing the justice with gifts, including a $19,000 Bible that belonged to Frederick Douglass, which Thomas disclosed. Recently, Crow gave Thomas a portrait of the justice and his wife, according to Tarabay, who painted it. Crow’s foundation also gave $105,000 to Yale Law School, Thomas’ alma mater, for the “Justice Thomas Portrait Fund,” tax filings show.

Crow said that he and his wife have funded a number of projects that celebrate Thomas. “We believe it is important to make sure as many people as possible learn about him, remember him and understand the ideals for which he stands,” he said.

To trace Thomas’ trips around the world on Crow’s superyacht, ProPublica spoke to more than 15 former yacht workers and tour guides and obtained records documenting the ship’s travels.

On the Indonesia trip in the summer of 2019, Thomas flew to the country on Crow’s jet, according to another passenger on the plane. Clarence and Ginni Thomas were traveling with Crow and his wife, Kathy. Crow’s yacht, the Michaela Rose, decked out with motorboats and a giant inflatable rubber duck, met the travelers at a fishing town on the island of Flores.

First image: From left, Crow, Paoletta, Ginni Thomas and Clarence Thomas in Indonesia in 2019. Clarence Thomas flew to the country on Crow’s jet, according to another passenger on the plane. Second image: A worker from Crow’s yacht ferries Thomas and others on a small boat in Indonesia. (via Facebook)

Touring the Lesser Sunda Islands, the group made stops at Komodo National Park, home of the eponymous reptiles; at the volcanic lakes of Mount Kelimutu; and at Pantai Meko, a spit of pristine beach accessible only by boat. Another guest was Mark Paoletta, a friend of the Thomases then serving as the general counsel of the Office of Management and Budget in the administration of President Donald Trump.

Paoletta was bound by executive branch ethics rules at the time and told ProPublica that he discussed the trip with an ethics lawyer at his agency before accepting the Crows’ invitation. “Based on that counsel’s advice, I reimbursed Harlan for the costs,” Paoletta said in an email. He did not respond to a question about how much he paid Crow.

(Paoletta has long been a pugnacious defender of Thomas and recently testified before Congress against strengthening judicial ethics rules. “There is nothing wrong with ethics or recusals at the Supreme Court,” he said, adding, “To support any reform legislation right now would be to validate these vicious political attacks on the Supreme Court,” referring to criticism of Thomas and his wife.)

The Indonesia vacation wasn’t Thomas’ first time on the Michaela Rose. He went on a river day trip around Savannah, Georgia, and an extended cruise in New Zealand roughly a decade ago.

During a New Zealand trip on Crow’s yacht, Thomas signed a copy of his memoir and gave it to a yacht worker. (Obtained by ProPublica)

As a token of his appreciation, he gave one yacht worker a copy of his memoir. Thomas signed the book: “Thank you so much for all your hard work on our New Zealand adventure.”

Crow’s policy was that guests didn’t pay, former Michaela Rose staff said. “You don’t need to worry about this — it’s all covered,” one recalled the guests being told.

There’s evidence Thomas has taken even more trips on the superyacht. Crow often gave his guests custom polo shirts commemorating their vacations, according to staff. ProPublica found photographs of Thomas wearing at least two of those shirts. In one, he wears a blue polo shirt embroidered with the Michaela Rose’s logo and the words “March 2007” and “Greek Islands.”

Thomas didn’t report any of the trips ProPublica identified on his annual financial disclosures. Ethics experts said the law clearly requires disclosure for private jet flights and Thomas appears to have violated it.

Thomas has been photographed wearing custom polo shirts bearing the logo of Crow’s yacht, the Michaela Rose. (via Flickr, Washington Examiner)

Justices are generally required to publicly report all gifts worth more than $415, defined as “anything of value” that isn’t fully reimbursed. There are exceptions: If someone hosts a justice at their own property, free food and lodging don’t have to be disclosed. That would exempt dinner at a friend’s house. The exemption never applied to transportation, such as private jet flights, experts said, a fact that was made explicit in recently updated filing instructions for the judiciary.

Two ethics law experts told ProPublica that Thomas’ yacht cruises, a form of transportation, also required disclosure.

“If Justice Thomas received free travel on private planes and yachts, failure to report the gifts is a violation of the disclosure law,” said Kedric Payne, senior director for ethics at the nonprofit government watchdog Campaign Legal Center. (Thomas himself once reported receiving a private jet trip from Crow, on his disclosure for 1997.)

The experts said Thomas’ stays at Topridge may have required disclosure too, in part because Crow owns it not personally but through a company. Until recently, the judiciary’s ethics guidance didn’t explicitly address the ownership issue. The recent update to the filing instructions clarifies that disclosure is required for such stays.

How many times Thomas failed to disclose trips remains unclear. Flight records from the Federal Aviation Administration and FlightAware suggest he makes regular use of Crow’s plane. The jet often follows a pattern: from its home base in Dallas to Washington Dulles airport for a brief stop, then on to a destination Thomas is visiting and back again.

ProPublica identified five such trips in addition to the Indonesia vacation.

On July 7 last year, Crow’s jet made a 40-minute stop at Dulles and then flew to a small airport near Topridge, returning to Dulles six days later. Thomas was at the resort that week for his regular summer visit, according to a person who was there. Twice in recent years, the jet has followed the pattern when Thomas appeared at Crow’s properties in Dallas — once for the Jan. 4, 2018, swearing-in of Fifth Circuit Judge James Ho at Crow’s private library and again for a conservative think tank conference Crow hosted last May.

Thomas has even used the plane for a three-hour trip. On Feb. 11, 2016, the plane flew from Dallas to Dulles to New Haven, Connecticut, before flying back later that afternoon. ProPublica confirmed that Thomas was on the jet through Supreme Court security records obtained by the nonprofit Fix the Court, private jet data, a New Haven plane spotter and another person at the airport. There are no reports of Thomas making a public appearance that day, and the purpose of the trip remains unclear.

Jet charter companies told ProPublica that renting an equivalent plane for the New Haven trip could cost around $70,000.

On the weekend of Oct. 16, 2021, Crow’s jet repeated the pattern. That weekend, Thomas and Crow traveled to a Catholic cemetery in a bucolic suburb of New York City. They were there for the unveiling of a bronze statue of the justice’s beloved eighth grade teacher, a nun, according to Catholic Cemetery magazine.

Thomas attended the 2021 unveiling of a statue of his eighth grade teacher. (via Catholic Cemeteries of the Archdiocese of Newark)

As Thomas spoke from a lectern, the monument towered over him, standing 7 feet tall and weighing 1,800 pounds, its granite base inscribed with words his teacher once told him. Thomas told the nuns assembled before him, “This extraordinary statue is dedicated to you sisters.”

He also thanked the donors who paid for the statue: Harlan and Kathy Crow.

Do you have any tips on the courts? Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240.

Matt Easton contributed reporting.

Design and development by Anna Donlan and Lena V. Groeger.

by Joshua Kaplan, Justin Elliott and Alex Mierjeski

Major Chemical Company Changes Tune on Asbestos, No Longer Opposes EPA Ban

1 year 7 months ago

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For decades, chemical companies fought attempts to ban asbestos, claiming they needed the potent carcinogen to manufacture chlorine. As recently as last April, in fact, the CEO of one of the last major companies still clinging to the toxic substance argued for it to remain legal. Acceptable alternatives “do not exist,” Olin Corp. CEO Scott Sutton told regulators.

In a dramatic turnaround, Olin said on Tuesday that it would support a federal ban on the deadly mineral.

ProPublica’s reporting changed the national conversation on asbestos, challenging a long-standing and successful industry argument that chlorine companies kept their employees safe. Late last year, ProPublica revealed that workers across the country had been exposed to the substance, including those at an Olin facility in Alabama who said they could “see it all the time” and weren’t given protective gear when they worked around it. (Olin did not return repeated calls or emails from ProPublica seeking comment on those findings.)

“I just wish they had stopped sooner,” Andy Lang, a contract pipefitter who worked at the plant in McIntosh, Alabama, told ProPublica on Wednesday. “I wish they had stopped years ago. I’m thinking about the people in my neighborhood like my sister.”

Lang’s sister, Bertha Reed, was a plant employee who worked a number of jobs and spent time around asbestos. Reed, who never smoked, died of lung cancer in 2017. It’s unclear what caused the cancer, but Lang blames the substances his sister was exposed to in the plant.

Andy Lang visits the gravesite of his sister, Bertha Reed. (Rich-Joseph Facun, special to ProPublica)

In a letter to the Environmental Protection Agency this week, Sutton said Olin would endorse a proposed ban if the companies were given seven years to phase out asbestos materials already in use. Companies apply the mineral to thick metal screens used in the production process to keep explosive chemicals from mixing. Sutton said workers would not have to apply new asbestos to screens during the last five years of the phase-out period, minimizing the potential for exposure.

“Additionally, no asbestos imports into the U.S. are required past today,” he added.

Olin did not reply to ProPublica’s questions on Wednesday.

The EPA said that it would consider Olin’s letter and other comments it has received, and that it was “moving expeditiously” to finalize its ban this year. The agency opened a new public comment period on the ban to account for new information, including ProPublica’s reports on the dangers at asbestos-dependent chlorine plants. That period ends April 17.

Olin’s letter marks a turning point in the battle over asbestos in the United States.

The U.S. has lagged behind dozens of other countries that outlaw asbestos, which is known to cause deadly cancers like mesothelioma. To this day, the U.S. continues to let chlorine companies import hundreds of tons annually.

Last year, ProPublica found that chlorine companies had spent decades lobbying against a ban. Behind the scenes, industry representatives pushed for regulatory exemptions, marshaled pro-business lawmakers to make their talking points and found support from 12 prominent attorneys general who said a ban was a “heavy and unreasonable burden.”

Supporters of a ban heralded Olin’s new position.

“We are deeply encouraged that Olin Corporation has stepped forward to publicly say they are committed to ending asbestos use in the chlor-alkali industry,” said Linda Reinstein, the co-founder of the Asbestos Disease Awareness Organization, in a statement on Wednesday.

The EPA still needs to address resistance from the rest of the chemical industry.

The American Chemistry Council, a powerful trade association that lobbies for chlorine companies, has pushed for its members to be exempted from the ban and said it would be impossible to transition to newer asbestos-free technology in less than 15 years.

In a statement provided to ProPublica on Wednesday, the group said its 15-year timeline was based on limited contractor resources, supply chain disruptions and regulatory approval cycles, among other factors.

“We continue to hold this position and therefore oppose calls to implement unrealistic timetables and deadlines,” the statement said.

OxyChem, another major producer of chlorine, did not respond to requests for comment from ProPublica. Last year, workers from its recently shuttered plant in Niagara Falls, New York, described conditions that experts called “totally unacceptable,” “fraught with danger” and “like something that maybe would happen in the 1940s or the 1950s.” At the time, OxyChem said ProPublica’s reporting on the plant was inaccurate, but it would not say what specifically was incorrect.

Hanging over the EPA is the agency’s failure to ban asbestos in 1989. Back then, the asbestos industry successfully overturned a ban by arguing in a lawsuit that it was too burdensome. Advocates and experts are now watching to see if history will repeat itself.

Last week, citing ProPublica’s reporting, lawmakers renewed efforts to write an asbestos ban into federal law, a measure that would be more difficult to challenge in court.

by Kathleen McGrory and Neil Bedi

Private Planes and Luxury Yachts Aren’t Just Toys for the Ultrawealthy. They’re Also Huge Tax Breaks.

1 year 7 months ago

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Flying to Ireland to inhale the seaside air as you drive a golf ball into the scenic distance. Crossing the country to reach your enormous yacht, which is ready for your Hudson River pleasure cruise. Hosting a governor’s wife on your very own aircraft. These are only a few of the joys that the richest Americans have experienced in recent years through their private jets. And what made them all the sweeter is that they came with a tax write-off.

Over the past two years, ProPublica has documented the many ways that the ultrawealthy avoid taxes. The biggest or most daring maneuvers scale in the billions of dollars, and while the tax deductibility of private jets isn’t the most important feature of U.S. tax law, the fact that billionaires’ luxury rides come with millions in tax savings says a lot about how the system really works.

There are dozens of examples of wealthy Americans taking these sorts of deductions, which are premised on the notion that the planes are used mainly for business, in the massive trove of tax records that have formed the basis for ProPublica’s “Secret IRS Files” series. The ultrawealthy, however, can easily blur business and pleasure. And when they purport to make their planes available for leasing, to fulfill one definition of using the planes for business, they tend to be more adept at generating tax deductions than revenue.

Bryan Marsal (Agencja Fotograficzna Caro/Alamy Stock Photo)

Tony Alvarez and Bryan Marsal built a successful consulting firm specializing in restructuring — advising struggling or bankrupt companies on what to sell and whom to lay off. It can be a grim business: Marsal has been known to announce to prone firms that they were now a “community of pain.” But the partners, who are also close friends, own another enterprise, the Hogs Head Golf Club (“Built by Friends, for Friends, for Fun”), on the southwest coast of Ireland. It boasts views of the nearby mountains and bay.

In 2016, before opening their new course, the pair teamed up, via an LLC they named after their golf club, to buy a 2001 Gulfstream IV jet. The next year, President Donald Trump signed his big tax cut into law. It made buying a plane even more attractive: The full price of the plane could be deducted in the first year, a perk called “bonus depreciation.” Before, depreciation was typically only partially front-loaded, with the full balance spread over five years. The law also for the first time made pre-owned planes eligible for this treatment.

As a result, when Alvarez and Marsal sprang for their second plane in 2018, this one a Gulfstream V, the entire cost was deductible. That year, the pair’s two planes netted them a tax deduction of $14 million.

Tony Alvarez in 2008 (Brendan McDermid/Reuters/Alamy Stock Photo)

Last August, their Gulfstream V took off from Westchester County Airport in New York state for Ireland. About an hour later, their Gulfstream IV left for the same destination, a small airport in County Kerry near their club. Both planes can comfortably seat over a dozen passengers, but flight records don’t show who was on board. Over the coming month and a half, the two planes crisscrossed the Atlantic several times.

Were these business trips? Possibly, yes. (ProPublica’s records do not indicate whether specific trips were taken as deductions.) If so, operating expenses — including crew, fuel and other costs — from the partners’ trips to oversee the course would be fully deductible. These deductions would come in addition to depreciation.

Michael Kosnitzky, co-chair of the private client and family office group at the law firm Pillsbury Winthrop, said his wealthy clients often own a business, such as an art gallery, in the same area where they own a vacation home. If the main purpose of a flight there is to attend to that business, jet owners must take care to make that as clear as possible. “I advise my clients to go to their secondary business location first” upon landing, he said, as a way to help build the case.

Accounting for how a jet is used can get complicated. If nonbusiness guests, such as family, ride along on a business flight, it’s treated as a fringe benefit, which is taxable. (The benefit is typically attributed to the jet owner, experts said.) But that wrinkle isn’t too bad: The IRS formula used to calculate the benefit drastically undervalues the cost of riding on a private jet and is closer to the price of a first-class commercial ticket.

Last Christmas, flight records show the two Gulfstreams again leaving together, this time to St. Vincent and the Grenadines in the Caribbean. While Alvarez and Marsal’s consulting firm boasts an office in the Cayman Islands, there isn’t one on these particular islands (which are about 1,400 miles from the Caymans), making it appear this was a family trip. Operating costs from “entertainment” flights like these are not deductible under tax law. But indulging in some pleasure doesn’t necessarily imperil the key tax prize of bonus depreciation: As long as, over the course of a year, the jet is used over 50% of the time for business, the owner gets to keep that perk.

A spokesperson for Alvarez and Marsal’s firm did not respond to a request for comment.

Mori Hosseini made his fortune as a Florida homebuilder and has owned a plane since at least 2006. When Trump’s tax bill began to gain momentum in Congress in the fall of 2017, he decided it was time for a new jet.

The $19.5 million he paid for his nine-seat Bombardier Challenger 350 appeared as a deduction on his 2017 taxes, leading to almost $8 million in tax savings right off the bat. But there were more deductions to come. Even the interest on the loan he’d taken out to buy the plane was deductible, and his 2018 taxes show a $600,000 expense.

Soon, Hosseini, a longtime Republican donor and close adviser to Florida Gov. Ron DeSantis, was helping the governor and his family travel in style. In 2019, DeSantis’ wife, Casey, flew on the jet from Tallahassee to Jacksonville to attend a fundraiser held by a defense contractor. It was just one of several times that the DeSantises or the campaign have used the jet over the past few years, according to campaign finance records. Such flights are generally allowed under Florida law as long as they are disclosed as in-kind contributions. Hosseini did not respond to questions from ProPublica.

The interior of a Bombardier Challenger 350 (Paulo Whitaker/Reuters/Alamy)

On his taxes, Hosseini says the LLC that holds his plane is in the business of “aircraft leasing.” It’s a very common move among jet owners. When they are not using the plane, they rent out the plane for charter flights, usually via an independent leasing company. Not only does this defray the costs of ownership, but it has tax benefits, too. It helps them establish that they bought the aircraft for a business purpose, the business of chartering.

In theory, taxpayers aren’t allowed to deduct losses from something that has no hope of being a profitable business. In practice, though, some billionaire-owned operations that look like expensive hobbies, such as racing horses in the Kentucky Derby, rack up business deductions by the tens of millions of dollars.

ProPublica examined the tax records of over 30 wealthy Americans who owned planes, and one thing was very clear: Profits in the airplane chartering business for this set, judging from their taxes, were extremely rare. Hosseini's records show two years of profit over an eleven-year period.

Or take George Argyros, a California billionaire real estate developer who once owned the Seattle Mariners. A major GOP donor, he also was the U.S. ambassador to Spain from 2001 to 2004. Argyros, 86, has leased out his aircraft through his own chartering company for decades. From 2002 through 2019, his tax records show, his company pulled a profit just twice. Overall, he deducted over $50 million in net losses over the years.

In June 2021, Argyros’ Gulfstream landed at the small airport near Newburgh in New York’s Hudson Valley, having flown cross-country from California. Nearby, his $83 million, 248-foot yacht the Huntress awaited. Over the coming weeks, the ship would be seen cruising up and down the Hudson River, astounding locals who gawked at its six decks, helipad and hot tub.

The Huntress on the Hudson River in July 2021 (Gary Hershorn/Getty Images)

A representative for Argyros declined to comment.

Yachts are dealt with differently from airplanes in tax law. They are considered entertainment facilities, so you can’t claim deductions on the premise that you used it for business travel.

But that doesn’t mean there’s no tax savings to be had. Mike Fernandez is a capable businessman, having made a fortune starting and investing in health care companies. But the Florida-based investor seems to have abysmal luck with one of his businesses: leasing out his 180-foot yacht, the Lady Michelle, when he’s not using it. On his 2017 and 2018 tax returns, he claimed a total of $11.3 million in expenses connected with the Lady Michelle from depreciation, repairs, wages and other costs. Meanwhile, his revenue over the two years totaled $178,000. Fernandez did not respond to questions from ProPublica.

Should the IRS audit one of these businesses — itself unlikely over the past decade, due to the gutting of the agency’s budget — the IRS faces a high hurdle: proving that not only was the business not profitable, but that the business owner was not really trying to profit. The case of personal jets adds an additional difficulty for an auditor. The ultrawealthy can often argue that, even if chartering did not result in profits, they also used the plane to help conduct their main business.

Robert Bigelow made his fortune in real estate and owns Budget Suites of America, an extended-stay apartment chain. His passions, however, reach to the skies and beyond. For decades, he’s poured resources into investigating UFO sightings and paranormal phenomena. Two years ago, he announced $1 million in grants from his Bigelow Institute for Consciousness Studies for research “into contact and communication with post-mortem or discarnate consciousness.”

Robert Bigelow (NG Images/Alamy Stock Photo)

His main focus, however, has been space. He founded Bigelow Aerospace, a company focused on building expandable space habitats. The company has had some successes, winning a contract from NASA for a module for use on the International Space Station. But what it has not had is profits. Bigelow put more than $350 million into the company, “my own real black hole,” as he’s put it.

In the two decades prior to 2018, even as Forbes and The Wall Street Journal variously estimated his net worth as $700 million and $900 million, Bigelow posted negative incomes on his taxes most years, as large losses from his aerospace company wiped out his other income. His personal jet, held by Cosmos Air LLC, also played a role. From 2005 to 2018, he deducted a total of $51 million related to use of his plane. ProPublica could not find evidence that Bigelow charters his aircraft, nor did Bigelow respond to ProPublica’s requests for comment.

Of course, the deductions could also be justified on the basis that the aircraft is necessary to tend to Bigelow’s various businesses. The plane is a luxury expense, in other words, essential to help him run up millions more in tax deductions — one black hole orbiting another.

Help Us Report on Taxes and the Ultrawealthy

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Jeff Ernsthausen contributed reporting.

by Paul Kiel

The Powerful Forces Keeping High Interest Title Lending Alive in Georgia

1 year 7 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with The Current. Sign up for Dispatches to get stories like this one as soon as they are published.

In February, Georgia lawmaker Josh Bonner introduced a bill that he hoped would fix a thorny problem that entangles tens of thousands of state residents in debt each year.

The Republican state representative from Fayetteville, a southern Atlanta exurb, aimed to close a loophole used by title lenders, who offer short-term cash to customers in exchange for a lien on their car title. The industry can currently charge triple-digit annual interest, more than three times what state law allows other financial companies.

Bonner, a military veteran and a church deacon, was outraged by the threat posed to consumers, especially military members and their families. In late February, federal regulators fined Savannah-based TitleMax, the country’s largest title lender, $15 million for multiple violations of the federal law that protects members of the armed forces from predatory, high-interest loans.

“I wondered, ‘How can this be legal, and who wouldn’t want some common-sense reform?’” Bonner recalled.

Bonner, a past House floor leader who whipped votes for Gov. Brian Kemp, isn’t an outsider to the corridors of power at the Georgia Capitol. Yet, within a month, his bill died in the House Banks and Banking Committee — the sixth time in nearly two decades that Georgia Republicans tried and failed to erect better guardrails for the industry.

Georgia state Rep. Josh Bonner introduced a bill this year to regulate title lenders to better protect consumers. (Nicole Buchanan, special to ProPublica)

In Georgia, political observers said, the top-down nature of the legislature meant the measure had no chance without the support of top GOP statehouse leaders — whose cozy donor relationships with title lenders have stood in the way of reform.

David Ralston, the House speaker who died unexpectedly in November, never brought a reform bill to a floor vote during the 12 years he ran the lower chamber. In the upper house, while a reform bill passed the Senate Finance Committee in 2020, Senate leaders didn’t schedule a floor vote, leaving it to die. In more than four years as governor, Kemp, now the party’s most powerful state leader, hasn’t taken a position publicly on the industry, despite having voted for a reform bill earlier in his career as a state senator.

“There’s a venerable tradition here, no matter who is in charge, that change happens slowly — or until you reach the ear of a senior politician or his wife,” said Richard Griffiths, president emeritus of the Georgia First Amendment Foundation and an advocate for greater government transparency in Georgia.

Georgia is home to two of the nation’s largest title lenders: TMX Finance, the parent company of TitleMax, which posted $910 million in revenue in 2019; and Alpharetta-based Select Management Resources, which owns the brand LoanMax. The companies and their founders have spent millions of dollars trying to defeat regulation attempts both in Washington, D.C., and in state legislatures across the country.

The two companies have prioritized lobbying statehouse leaders and leadership committees over rank-and-file members, according to an analysis of campaign finance data compiled by The Current and ProPublica.

In late February, the Consumer Financial Protection Bureau imposed a $15 million fine against Savannah-based TitleMax for violating the federal law that protects military members from predatory, high-interest loans. (Malcolm Jackson for ProPublica)

State Sen. Nan Orrock, a Democratic member of the Senate Finance Committee, said the two companies promote their interests by leaning heavily into “a strong mode of thinking here that all business is good for the state.” She added, “This is an industry that pushes that pro-business sentiment all the time.”

Top GOP leaders, including Kemp, either declined to comment or did not respond to questions for this story. TMX Finance and Select Management did not respond to questions for comment.

The situation rankles the portion of state Republicans who have led the charge for more regulation of the industry since taking over both chambers of the legislature in 2005.

“Privately my colleagues all tell me that almost no one is against reform,” said state Sen. Chuck Hufstetler, who chairs the Senate Finance Committee and is in favor of reform. “But publicly we can’t get that support.”

Title lending has been around in Georgia since the 1980s, catering to people who are often written off as credit risks by traditional lending institutions. It has drawn legislative ire almost from the start.

In 1995, a state Senate panel convened hearings to investigate the industry. “They practically get to write their own rules and rates,” then-state Sen. René Kemp, who represented Hinesville — the former hometown of TMX Finance founder Tracy Young — said at the time.

The industry really took off in the middle of the next decade. In 2005, both parties introduced bills that would have increased consumer protection against title lenders by forcing them to adhere to the state usury law that caps interest rates at 60%.

In response, Select Management’s founder, Rod Aycox, told The Atlanta Journal-Constitution that he had asked the American Legislative Exchange Council, a conservative policy think tank, to draft a model title lending bill that would have removed interest rate caps altogether for the industry.

Aycox took the model legislation to then-House Rules Committee Chairman Earl Ehrhart. The powerful Republican lawmaker, who, according to the Journal-Constitution, accepted free flights on planes owned by TitleMax and Select Management, pushed Aycox’s bill forward. Ehrhart declined to comment for this story.

In the end, neither the reform bills nor the model legislation survived, preserving the status quo that benefits title lenders by allowing them to operate under pawn shop statutes, instead of banking laws, and remain exempt from oversight by the state Department of Banking and Finance and usury caps. Instead, they can continue to charge up to 187% annual interest.

Since then, title lenders have been working behind the scenes to maintain the regulatory status quo. TMX Finance, Young and his wife, Beverly, have contributed more than $1.8 million in Georgia since 2006, with approximately a third of those funds going to political action committees, such as the Georgia House Republican Trust, according to an analysis of campaign finance data by The Current and ProPublica. Aycox, his immediate family and his corporate holdings have given $1.4 million during the same period.

These contributions are relatively modest compared to other industries. The political action committees for the NRA and Planned Parenthood, for instance, spent more than $600,000 each in the state in 2022 alone.

But title lenders have given consistently to legislative leaders. Among the chief recipients of these contributions were former House speaker Ralston and his longtime confidante Jon Burns, who was elected to take over Ralston’s position this year.

The two industry executives and their companies have also given generously to other lawmakers in a position to bottleneck any reform legislation — including the Georgia House whip, who controls the GOP caucus leadership committee, and the Senate majority whip, who controls floor votes, as well as the lieutenant governor, who controls the Republican caucus in the upper house.

A top lobbyist for Select Management, Raymon White, also helped raise money for Burt Jones’ successful 2022 bid to become lieutenant governor and thus president of the Senate. Jones was among the fake Trump electors in the former president’s bid to overturn the 2020 election results in Georgia. The rest of the fake electors are being investigated by a special grand jury, but a judge exempted Jones from being questioned by the district attorney in charge of the case. Neither Burns nor Jones responded to requests for comment.

The industry’s hold on Georgia lawmakers contrasts sharply with what has taken place in other states, including South Dakota, Virginia, Illinois and New Mexico. Lawmakers in these states have passed stricter laws that capped annual interest rates at 36% on subprime financial loans. That rate cap mirrors the federal Military Lending Act that protects military members and their families from predatory loans.

Economic studies from some of those states suggest many of the arguments advanced by title lending companies — including that lower interest rates would cause lending to high-risk people to dry up — are hollow.

In South Dakota, for instance, a citizen-led referendum in 2014 led to the passage of a 36% annual interest rate cap for financial products sold in the state. Title lenders stopped doing business there, but new credit lenders stepped in, and consumers ended up with more choice and lower interest rates, according to a four-year economic study conducted by the Center for Responsible Lending. “The only group that lost in this scenario were the title lenders,” said Steve Hinkey, a South Dakota pastor who as a then-Republican lawmaker spearheaded the referendum.

Illinois reported similar findings after that state passed a 36% cap on interest rates for consumer financial products.

In 2020, Georgia Republicans tried again to rein in the industry, which issues new title pawns for about 75,000 vehicles per year in the state. State Sen. Randy Robertson, a Republican from Cataula, introduced a reform bill after hearing from a constituent who was stuck paying the high-interest debt on her stepfather’s title pawn after he moved into a nursing home.

Robertson’s bill aimed to bring title lending under the purview of the state Department of Banking and Finance and banking laws instead of pawn shop statutes, which would have capped interest rates at 60%. The bill also aimed to close another loophole: Georgia pawn shop statutes allow title lenders to keep the profits from selling cars that they repossess due to nonpayment — even if the profits from the car sale are greater than the original debt.

"Just because something is legal doesn’t mean it is moral,” Robertson, a retired police officer, told The Current and ProPublica.

The bill passed in committee, despite industry pushback, when Sen. Hufstetler, the committee chairman, broke a deadlock by voting in favor of the measure. Senate leaders, however, did not schedule a floor vote.

State Sen. Chuck Hufstetler, who chairs the Senate Finance Committee, believed a bill to reform the title lending industry would have enough support to pass a full Senate vote this year. It didn’t happen. (John Amis/AP Photo)

Two senior Republican lawmakers, speaking about private discussions among state GOP leaders on the condition that their names not be used, told The Current and ProPublica that they support a change in the title lending laws. But one of the reasons party leaders tabled reform legislation in 2022, they said, was for fear of angering deep-pocketed corporate supporters at a time when GOP incumbents were fighting tough primary battles with insurgent pro-Trump members of the state party.

With the war chests accrued from donors like TitleMax’s PAC, House and Senate Republican caucuses spent months trying to protect state leaders, such as Kemp and Attorney General Chris Carr, from GOP rivals during primary races. They also wanted to keep people like Aycox, a known Donald Trump loyalist, on the Kemp side of the party candidate list. “It was a battle royal, and we couldn’t afford any defections,” said one of the senior Republicans about the 2022 primary races.

When the 2023 legislative session commenced in January, Hufstetler told The Current and ProPublica that, if a new reform bill were introduced, he believed it would have enough support to pass a full Senate vote.

But that didn’t happen. On the evening of Jan. 26, the same day the Senate GOP caucus released its legislative priorities, Select Management held a $10,000 dinner open to the Senate’s Republicans, according to a lobbyist disclosure report filed by White. It was the most money paid by an individual corporation — rather than an association or trade group — for a lobbying event during the first two months of the legislative session, and the sixth-highest lobbying expenditure overall during the same period. Georgia campaign disclosure laws do not require any further disclosure by lobbyists about who attended the dinner or the location of the event.

Hufstetler said he did not attend the January dinner. A spokesperson for Jones said the event was not listed in his diary but could not confirm if he attended. No other Republican senator responded to questions about the dinner.

When asked whether he considered the dinner a success, White declined to comment.

Meanwhile, TitleMax sponsored a breakfast for the House majority whip’s team on the same day Bonner’s bill was scheduled for its committee hearing.

Almost immediately after introducing his reform bill, Bonner received his first baptism from the industry. Within three hours, he got a call from the TitleMax vice president of government relations — a Republican legislative veteran who lives in Bonner’s district. On this call and in meetings with lobbyists, he heard the same arguments the industry has made for nearly 20 years.

Bonner, though, wasn’t convinced by their arguments. In fact, he became more supportive of reform after he heard that the Consumer Financial Protection Bureau had found TitleMax to be in violation of the Military Lending Act. The federal regulator found that the company sold their high-interest title loans to military members and their families in multiple states, including Georgia. TitleMax has denied wrongdoing.

Bonner, who was a military intelligence officer and now chairs the Georgia House Defense & Veterans Affairs Committee, considered that behavior beyond the pale. “Frankly, if a law is good enough for our servicemen and women, it should be good enough for all Georgians,” he said.

By Bonner’s count, 11 of the 28 members of the House Banks & Banking Committee had signed their support for his bill by the time the chairman scheduled a hearing. But Rep. Noel Williams Jr., a Republican who hails from Cordele, a city of 10,000 residents and four title pawn shops, told The Current and ProPublica that he warned Bonner in advance that he wasn’t going to call a vote.

Bonner, a military veteran, was outraged by the threat that the title lending industry poses to consumers, especially military members and their families. (Nicole Buchanan, special to ProPublica)

After a marathon day of voting on the House floor, the committee hearing came to order in the late afternoon. Bonner was last on the agenda. He spent approximately five minutes speaking on behalf of the 46-page bill. “There is no state-level oversight of this industry, which often operates in underserved communities and can often trap people in a cycle of debt that can last for years,” he told the committee.

At least six industry executives and lobbyists were in the dark-paneled chamber ready to argue the other side, after a brief summary of support by the lobbyist for Georgia Watch, a consumer advocacy group.

Travis Bussey, the vice president of government relations at TMX Finance, spoke first, telling the lawmakers that the company was “not opposed to reform,” just deeply opposed to Bonner’s bill. The company’s general counsel chimed in saying the legislation was poorly written.

John McCloskey, a vice president and general counsel for Select Management, said the bill would make it impossible for title lenders to survive in Georgia.

When Republican Rep. Emory Dunahoo, who favors reform, asked McCloskey in a soft-spoken Southern drawl to explain how a financial services company would not turn a profit by charging 60% interest, McCloskey demurred.

Rep. Will Wade, a floor leader for Kemp, was one of several on the Republican side who expressed ambivalence about the bill, saying he understood the current regulatory environment made it difficult for lenders to make money.

As Williams gaveled out, he said he looked forward to working with stakeholders to advance the bill at a later time. The cluster of industry executives and lobbyists moved forward to shake his hand. Six of the industry executives and lobbyists in attendance declined to answer questions posed by The Current and ProPublica.

Later that evening, Bonner sounded vexed as he dissected his failure.

“They used the tired but time-honored excuse that they look forward to working with me in the future,” he said with a sigh. “I was hoping that future would start sooner. ”

by Margaret Coker, The Current, and Mollie Simon, ProPublica

Judge Dismisses Sex Abuse Case Against Alaska’s Former Acting Attorney General

1 year 7 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with the Anchorage Daily News. Sign up for Dispatches to get stories like this one as soon as they are published.

An Alaska Superior Court judge has dismissed a sex abuse case against former acting state Attorney General Clyde “Ed” Sniffen. In an order Friday, Judge Peter Ramgren sided with Sniffen’s lawyer, who argued too much time had passed for him to be charged with the alleged 1991 crime.

A grand jury indicted Sniffen in September on three counts of sexual abuse of a minor by an authority figure, based on his alleged sexual relationship with a then-17-year-old student. Sniffen was 27 at the time and a coach for the West Anchorage High School girls’ mock trial team.

While Alaska state law currently has no statute of limitations for felony sexual abuse of a minor, Ramgren dismissed the charge based on the argument that the law was different in 1991, when a five-year statute of limitations was in place.

The alleged victim, Nikki Dougherty White, learned of the dismissal Saturday morning by email. She called the ruling a “huge disappointment.”

“A huge sense of being let down by the court system,” she said.

White said that despite the dismissal, she does not regret going public with her story in January 2021, after she learned Sniffen had been appointed attorney general by Gov. Mike Dunleavy. Sniffen resigned as the Anchorage Daily News and ProPublica prepared to publish an article about the allegations.

“Because the truth is important. And because Alaska has too long been a place that favors abusers, that does not provide a safe space for victims, for women, for girls. For anybody who doesn’t fit, you know, the white male profile,” White said in a phone interview.

“The Alaska judicial system isn’t built for us and it doesn’t protect us,” she said.

Sniffen pleaded not guilty to the charges. He could not be reached for comment Saturday. His attorney, Jeffrey Robinson, was out of state Saturday for a professional obligation and had just received the judge’s order on Saturday afternoon, he wrote in an email.

“I’ve not had any time to review it,” Robinson wrote.

The special prosecutor in the case, Gregg Olson, said Saturday that no decision has been made on whether the state will appeal the order.

Another Superior Court judge, Erin Marston, presided over the case in January when Sniffen’s attorney argued it should be dismissed on the grounds that the statute of limitations had expired and that the long delay between the alleged abuse and the filing of charges violated Sniffen’s right to due process.

Marston on Jan. 26 rejected a motion to dismiss the case related to alleged due process violations. Ramgren replaced Marston as the case judge on Feb. 7 due to Marston’s retirement. Ramgren was appointed to the bench in 2019 by Dunleavy.

In his Friday order, Ramgren wrote that a five-year statute of limitations was in place for the crime of sexual abuse of a minor at the time of the alleged offense, May 1991. The Legislature reduced or removed time limits to charge people for certain crimes in 1992 and again in 2001, the judge wrote, but he concluded those changes did not apply to Sniffen’s case.

“The court finds the applicable statutes and legislative history indicate these changes cannot be applied to the alleged offenses,” Ramgren wrote. “For that reason, the statute of limitations governing Mr. Sniffen’s conduct has expired and he cannot be subject to indictment.”

Sniffen led the state Department of Law, as Alaska’s top lawyer and legal adviser to the governor, for roughly five months in 2020 to 2021. His predecessor, Kevin Clarkson, resigned as attorney general when the newsrooms reported Clarkson had sent hundreds of unwanted text messages to a junior colleague.

by Kyle Hopkins, Anchorage Daily News

The True Dangers of Long Trains

1 year 7 months ago

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Just before 5 a.m., Harry Shaffer’s wife called to him from across the living room, where he’d fallen asleep on the couch, exhausted from installing an aboveground pool. Did he hear that sound, that metallic screeching from up the valley? She opened the door of their double-wide trailer and walked outside as Shaffer closed his eyes.

A moment later came a thunderous crack of splintering lumber. Debris shot through the living room. Shaffer opened his eyes again to find a hulking train car steps from where he lay. It had shorn off the roof, exposing the murk of the pre-dawn sky. He jumped up and ran outside and saw the garage next door in flames.

Though it sat at the floor of a valley along a busy stretch of railroad tracks, the quiet town of Hyndman, Pennsylvania, hadn’t seen a major derailment in recent memory. Trains didn’t frighten residents like Shaffer even though 21 of them trundled through the town’s center day and night.

But unbeknownst to them, the corporations that ran those trains had recently adopted a moneymaking strategy to move cargo faster than ever, with fewer workers, on trains that are consistently longer than at any time in history. Driven by the efficiency goals of precision scheduled railroading, companies are forgoing long-held safety precautions, such as assembling trains to distribute weight and risk or taking the proper time to inspect them, ProPublica found. Instead, their rushed workers are stringing together trains that stretch for 2 or even 3 miles, sometimes without regard for the delicate physics of keeping heavy, often combustible tanker cars from jumping off the tracks.

Rail safety grabbed headlines this February after a Norfolk Southern train passed sensors designed to flag mechanical issues and catastrophically derailed in East Palestine, Ohio; Republicans and Democrats alike are now calling for tighter regulations on company operations, especially in light of precision scheduled railroading.

ProPublica’s reporting suggests they should start by looking at federal regulators’ ponderous response to the mounting warnings about the dangers of long freight trains.

Before that morning in Hyndman in August 2017, regulators had already investigated seven long-train accidents in which the length was a culprit, and the nation’s largest rail worker union had sounded alarms about a pattern of problems.

None of this caused the Federal Railroad Administration, the agency in charge of train safety, to intercede — even as more long trains crashed in the years after the Hyndman derailment, sending cars spilling into other communities.

Today, the rail administration says it lacks enough evidence that long trains pose a particular risk. But ProPublica discovered it is a quandary of the agency’s own making: It doesn’t require companies to provide certain basic information after accidents — notably, the length of the train — that would allow it to assess once and for all the extent of the danger.

“It’s one of our biggest frustrations, without question,” said Jared Cassity, the alternate national legislative director for the International Association of Sheet Metal, Air, Rail and Transportation Workers, or SMART. The union representative said the agency can track train length for accidents “and they’ve chosen not to.”

In the absence of data, the industry insists that long trains have actually helped to improve rail safety, pointing to an overall decline in derailments. The Association of American Railroads, the industry lobby, says safety is the priority when building long trains and notes that regulators have never cited length as the direct cause of an accident. The nation’s seven largest rail companies, the so-called Class 1s, echo these points, defending their safety practices and saying that PSR has led to fewer problems.

To make sense of this gap in information, ProPublica reviewed court and regulatory records of thousands of incidents involving trains of all lengths, as well as technical and investigative notes in federal files from nearly two decades of long-train incidents. We conducted more than 200 interviews, including candid conversations with rail personnel who described how companies have sidestepped best practices when building and running long trains. Then we went to Hyndman to learn what happens to a community in the aftermath of a preventable catastrophe, uncovering damage that cannot be repaired, even with millions in rail company checks.

An aerial view of the Hyndman crash (CSX Train Derailment with Hazardous Materials Release via National Transportation Safety Board)

That summer morning, the sky was burning red when Shaffer, a thin, stoic man of 50, surveyed his neighborhood. Mounds of what looked like grain had spilled from the train cars and molten sulfur, like lava, crawled across the grass. He spotted his wife standing on a neighbor’s porch, but before he could process the relief, he saw another neighbor, Kristina Sutphin, screaming from a second-story window. “Help me!” she yelled. “I can’t get out!”

Sutphin, 27, had thought it was an earthquake when her house started shaking, and she’d rolled on top of her 2-year-old daughter, Mia, to protect her. When it stopped, she hit the lights and found drywall dust everywhere. Her house, too, had been struck by a train car, knocking a wall panel studded with nails over the stairs, trapping her and her daughter as the fire outside grew.

Shaffer ran for a ladder, but the train car had demolished one side of his home, including the bedroom where, on any other night, he and his wife would have been sleeping and where his German shepherd, Diamond, had her kennel. He couldn’t see Diamond, and he wouldn’t learn until a few days later that she had been crushed to death.

By the time he got to Sutphin, her brother had run across the street and a neighbor had arrived with a ladder. Her brother climbed up and carried Mia down as Sutphin followed behind. Volunteer firefighters, fear on their faces, raced door to door, urging people to evacuate.

Kristina Sutphin and her daughter, Mia (Jamie Kelter Davis for ProPublica)

For longtime residents, it felt like another dark chapter: In 1949, a Christmas tree fire burned through dozens of businesses and homes; a flood in 1984 lapped at door frames and swamped basements; and in 1996, another flood submerged window sills in brown, swirling water.

But this disaster, thought Bobby Walls, Hyndman’s 36-year-old emergency manager, was something else. He’d grown up in Hyndman, starting a family in the green, peaceful valley. Now a flaming geyser towered over the rooftops, and Walls wondered: Was anyone dead? As he ran toward the blaze in his firefighting gear, Walls didn’t know that the tanker car at its center contained propane — enough that if it erupted and set off the six others around it, the explosion could engulf the entire town of some 900 people.

The tanker car still howled about seven hours later as Walls and a number of first responders waited in a cinderblock-walled classroom for word from a train company crew that was monitoring the fire. Then, the door flung open. The room quieted as a CSX worker hustled to the whiteboard and began to write.

The tanker car is rapidly failing.

An explosion is imminent.

We need to evacuate now.

Footage from the Hyndman derailment (Associated Press via YouTube)

For generations, railroad workers considered a 1.4-mile-long train huge.

Then Hunter Harrison came along.

Harrison was a railroading innovator with only a high school education, hired as a car oiler in a Memphis yard in 1963. By the 1980s, he had moved into the top management of Illinois Central, a carrier he viewed as bloated and fatally unprofitable. It was an era when most railroads, including his, had an operating ratio in the 90s, meaning that the company had to spend about 90 cents to make a dollar and was netting less than a dime, or 10%, in profit.

Harrison, a self-described “stern, disciplinarian taskmaster,” was obsessed with efficiency. At a time when other executives feared computers, he used them to track every boxcar and locomotive and learned which ones sat idle. “Railroads,” he once said, according to the biography “Railroader,” “only make money when cars are moving. ... So why would we lay down tracks just to have cars sit idle?”

When he became CEO in 1993, Harrison looked for even the smallest ways to cut costs, from tearing up unused tracks to eliminating document storage and overnight stays for train crews. By 1998, he had managed to drop the operating ratio to 62.3, a significant jump in profitability. But the savings were never enough. He flew around in a corporate jet with a tail number that read OR59, his aspirational operating ratio.

In the years that followed, Harrison made his mark as a senior leader at Canadian National after it acquired Illinois Central; he sold off 35% of its locomotive fleet and focused on moving cars in and out of yards at breakneck speeds. To do this, the employees had to work harder, and so did the trains. “I’m impatient,” he once told Progressive Railroading. “I’m also demanding. But I’m asking people to stretch.” By then, he was CEO.

Longer trains would become integral to the management philosophy he dubbed precision scheduled railroading. The rail industry makes its money by the weight and distance of the freight it hauls. A long train makes in one trip what a short train would make in two or three or four, and with fewer employees. There was no need to design a new breed of super trains; these behemoths could be built from more of the same components: more cars with engines spliced into midsections to help move, and stop, more weight.

By 2013, Harrison was CEO of Canadian Pacific when he wrote in its annual report: “We’re driving longer and longer trains, which means fewer train starts, faster network velocity and better service at lower cost.”

Hunter Harrison in 2015 (Chris Goodney/Bloomberg via Getty Images)

America’s largest railroads took note. They began making their trains longer and their staffing margins smaller; in 2015, companies started laying off what would become a fifth of the workforce at the largest railroads. That year, CSX bragged to its investors about its “train length initiative” and how longer trains helped to reduce staff needs. Harrison left Canadian Pacific to run CSX in 2017; that year, the company reported $249 million in “efficiency savings.” CSX told ProPublica that it “impugns the assertion that its management philosophy promotes dangerous practices.”

Harrison died nine months after taking over CSX, but he’d already secured his legacy. Many of the biggest railroad companies operating in the U.S. had adopted precision scheduled railroading. They were running long trains. The Association of American Railroads told ProPublica the industry has been safely running long trains for more than 80 years. It says they are more fuel efficient and allow companies to run fewer trains, which means fewer chances of collisions at railroad crossings.

In April 2017, the Federal Railroad Administration got a letter from the nation’s largest railroad union, SMART. Workers had been seeing troubling patterns related to these long trains, wrote John Risch, the union’s national legislative director at the time. “While I am fully aware that there are no federal regulations limiting the size of trains, running these monster trains [is] inherently unsafe and FRA has broad authority to investigate the practice and put an end to it.”

By the time Risch sent his note, the agency was well aware that the growing length of trains was creating unique issues. ProPublica’s review of more than 600 investigative reports on train accidents over almost two decades found that the FRA had known of problems for years.

The reports revealed that some long trains were too big to fit into sidings off of main tracks that were often built to accommodate trains no longer than 1.4 miles, and passing trains were crashing into their rear ends. It happened in September 2005 when a 1.5-mile-long BNSF train tried to fit into a siding in Missouri that was 1.4 miles long. The same thing happened the following year in Utah to a 1.5-mile-long Union Pacific train.

An October 2017 derailment in Atlanta (John Spink/Atlanta Journal-Constitution via AP)

The hulking trains could generate forces powerful enough to break the heavy-duty materials their cars were made of. In March 2008, the rear end of a 1.5-mile-long BNSF train ran forward as the front of the train decelerated, sandwiching the train and cracking an old repair on a tanker car. The train broke in two in Minnesota, dumping 20,000 gallons of ethylene glycol, commonly used in antifreeze, into a tributary of the Mississippi River.

And long trains that were assembled with too much weight in the rear and too little up front were hurtling out of control and jumping off of tracks. It happened in Virginia in 2006, in Wisconsin in 2015 and in Iowa in May 2017. Short trains can derail in the same way, but experts say longer trains can cause more damage when they fling dozens of cars and their contents through neighborhoods.

The companies involved in these accidents did not comment on them specifically, but Union Pacific and Norfolk Southern, in separate statements, said they spend more than $1 billion annually maintaining and improving infrastructure for safety and work closely with regulators. See what they said about their broader safety practices here. BNSF did not reply to a request for comment.

On July 31, 2017, CSX assembled Train Q38831 in a rail yard in Chicago, destined for a city outside of Hyndman. It had five locomotives at the front and 136 cars trailing behind, about half hauling hazardous material: propane, isobutane, ethyl alcohol, phosphoric acid and molten sulfur heated to 235 degrees Fahrenheit. It was a bomb train, as some workers refer to them, given its combustible cargo. When it left the yard and traveled east, the train grew. In Lordstown, Ohio, workers added 28 cars. In New Castle, Pennsylvania, they added 14. Now the train was 2 miles long.

Engineer Donald Sager, who boarded the train on the night of Aug. 1 in Connellsville, Pennsylvania, about 50 miles west of Hyndman, was uncomfortable with it. It was, he later told federal investigators, “big and heavy and ugly.” It had 38 empty cars near the front with almost all the train’s tonnage behind them, so the empty cars would be lurching around as all that weight bore down on them. He said the train would be bucking.

Sager took the train with his conductor, James Beitzel, from the Connellsville yard at 8:28 p.m. under a clouded sky and began climbing the backside of the mountain outside Hyndman. The climb was steep and the train needed a push from an extra locomotive, which coupled onto the rear. The locomotive broke off when the bulk of the train crested the mountain, passing a sign that read: “Summit of Alleghenies, Altitude 2258.”

The long, winding descent into Hyndman is one of the steepest in all of CSX territory, and the train weighed 18,252 tons, heavier than 200 fueled and loaded Boeing 737s. An engineer on a train like that has to closely watch the speed. It’s best to operate the brakes proactively, but as the train started down the mountain, Sager’s instruments were telling him the air brakes were beginning to fail. He stopped the train at 11:36 p.m. and radioed dispatchers.

“Got a problem with the train.”

Beitzel climbed down from the engine with his light and began walking in the gravel along the tracks. He had to manually set the brakes on 30% of the cars to be sure the train didn’t start moving on its own. Per company rules, he applied them on 58 cars near the front, cranking around and around a big steel wheel at the end of each car. Then Beitzel walked nearly 2 miles to the rear, where he found the problem at Car 159. A brake line had cracked and air was hissing out. That type of malfunction typically affects the brakes on all of the cars, like a chain reaction.

About two and a half hours later, when he finally got back, his shift had ended and Sager was briefing a new crew. Mechanics replaced the brake line while Ron Main, the new engineer, and Michael Bobb, the new conductor, waited. It was around 2 a.m. The train wouldn’t budge with the hand brakes on, so Bobb climbed down and walked back, knocking off brakes as he went. He released 25 and left the remaining set because the descent was steep, a practice at odds with accepted rail safety then and now, investigators and railroad workers say. Then finally, at 4:17 a.m., the train began rolling down the valley into Hyndman.

Bobb’s approach created a dangerous problem, investigators would later conclude. The 33 cars with hand brakes left on were toward the head of the train, and 13 of those were empty. There were also 25 other empty cars near the front. This meant the lightest section of the train was doing the bulk of the braking. It also meant that the heaviest section of the train — literally the rest of it — was bearing down on them. Such forces can pop empties or lightly loaded cars off the tracks, as had already happened in at least three long-train derailments investigated by the FRA.

The other part of the problem was in the hand brakes themselves. They play the same role as emergency brakes in an automobile; conductors usually put them on when they need to park a train. Applied and functioning properly, they immobilize a train car’s wheels. But driving a train with the hand brakes set can damage it, and that’s what happened to the Hyndman train. Its speed fluctuated as its locked steel wheels ground along the tracks, beginning to deform and lose purchase.

It’d be easy to blame Bobb or Main for what was about to happen. But they were only following CSX policy when they set the hand brakes on this huge, heavy train and sent it rolling down the long, steep hill. A safe and proper move would have been to break the train into two at the top of the hill and drive each section down separately, said Grady Cothen, a former FRA attorney who has written a widely cited white paper on the challenges of operating longer trains. But it would have taken more time, and the train was already delayed. CSX at the time was the only one of the seven largest train companies to allow the use of hand brakes to control the speed of a train down a hill.

It would also be easy to blame the crew in New Castle that had added eight empty and six loaded cars to the head of the train, making it longer and less stable. Or the crew before it in Lordstown that added 28 cars, all empty, to the head of the train. But these crews, too, were following a CSX policy, which dictated they could ignore a more sensible policy — don’t put so many loaded cars behind empties — if they were pressed for time. It was a risky edict considering crews are always pressed for time in the age of precision scheduled railroading.

That August morning, the train hit a speed of 29 miles an hour as it reached the bottom of the hill, passing the house where Shaffer slept on his living room couch. Main and Bobb felt a lunge in the cab. The train’s emergency brakes kicked in and it screeched to a stop.

“Hey, Alex,” Main called to the dispatcher. “We just went into emergency. ... I’m not sure what’s going on back there, but the conductor’s getting ready to get on the ground.” (Main, Bobb and Sager could not be reached, and Beitzel declined to comment. Their remarks are from transcripts in the federal investigation of the accident.)

Bobb climbed down from the cab and began walking toward the problem. Suddenly, there was an explosion and a fireball rose into the night about a half-mile back from the engines. Main, up in his locomotive, hadn’t noticed. He didn’t learn about it until a man drove up to his window and yelled the news into the cab.

Federal investigators would later learn that Car 35 — empty, hand brakes set — had jumped the tracks on a curve, and two cars ahead of it and 30 behind it had followed.

Early on the morning of Aug. 2, 2017, CSX Train Q38831 was traveling east toward Hyndman, Pennsylvania.

The train was 2 miles long and weighed over 18,000 tons.

It was loaded with innocuous cargo like paper and corn syrup as well as hazardous materials such as propane and molten sulfur.

Ninety percent of the train’s weight was behind the leading 42 cars.

Because of a previous brake failure, 33 cars had their hand brakes on as the train rolled downhill toward Hyndman.

With its wheels locked and over 16,000 tons of weight trailing it on a downhill, the 35th car was the first to derail west of Hyndman.

Thirty-two more cars derailed as the train entered Hyndman on a 1.7% downslope while rounding a curve.

The derailment caused massive destruction, and three of the loaded cars released hazardous material.

After the derailment, the National Transportation Safety Board recommended in a letter that CSX prohibit using hand brakes on empty cars to control a train’s speed down a hill. It also recommended that large blocks of empty cars be placed near the end, not the front. “We would appreciate a response within 90 days of the date of this letter, detailing the actions you have taken or intend to take to implement these recommendations.”

But CSX responded more than two years later and only after ProPublica began asking recently why it had ignored the NTSB. In its response letter, CSX says the agency was wrong; the train’s makeup did not contribute to the crash. However it still reformed the policy, requiring, among other things, placing more weight near front of the train and prohibiting trains from “having more than a third of its weight in the trailing fourth of the train.” It also adopted the NTSB’s other recommendation on hand brakes, prohibiting their use on empty cars in “mountain grade territory,” a company spokesperson told ProPublica. It said the derailment was caused by “hand brakes on empty rail cars to control train speed on steep grade ... not PSR.”

By that afternoon, emergency manager Walls and the other first responders had evacuated everyone who would agree to leave Hyndman. The tanker burned for two days and yet did not explode. Though it came close: The pressure inside the car caused the steel wall of its inner hull to stretch as thin as a credit card. They’d come 1 millimeter, Walls said, from disaster.

Bobby Walls (Jamie Kelter Davis for ProPublica)

The U.S. House Transportation and Infrastructure Committee took note of the derailment and asked the Government Accountability Office to study the safety and impacts of long trains. The committee’s two ranking members hadn’t even signed the letter before CSX derailed another long train in Georgia, just two months after Hyndman.

It was 2.4 miles long, and like the Hyndman train, a bulk of its tonnage had been loaded in the rear. When the engineer began to brake, the back of the train slid forward and shoved a car ahead of it off the tracks on a curve, and 13 other cars followed. One car crashed into a home and the person inside was rushed to a hospital. The man survived. CSX did not comment on this accident but did tell ProPublica the company is committed to operating safely and is constantly evaluating its rules, specifically on train handling. See what else it said about its safety practices here.

The 2017 derailment in Atlanta that sent a person to the hospital (John Spink/Atlanta Journal-Constitution via AP)

It was only after all of this happened that the FRA, in March 2018, replied to the union officials who had expressed concerns that previous spring. In a letter, the agency said it “began looking at the length of trains as a potential contributing cause of FRA reportable accidents/incidents” in 2016. The agency still did not have “the sufficient data or evidence to justify an Emergency Order limiting the length of trains.”

In May 2019, the GAO completed its study, coming to a similar conclusion: long trains may be dangerous, but more information was needed. Its effort was partly stymied, the GAO said, because most rail companies refused to hand over enough of their private train-length data to allow investigators to make findings. The FRA also told ProPublica it has asked companies for this data but never gotten it.

On Thursday, the FRA told ProPublica it is starting the process of requiring companies to disclose the train length for every reportable accident, a move prompted by the Infrastructure Investment and Jobs Act. But there is no guarantee the regulators will succeed. The FRA said it first needs to publish a notice of the new data-collection effort and ultimately the Office of Management and Budget would need to approve the measure.

Had the FRA issued an emergency order as the union requested in 2017, a rare and extreme step, the railroads would have likely gotten a judge to block it, said Cothen, author of the white paper on longer trains. He acknowledged that most of the long trains in the country arrive at their destinations without incident, but he feels the railroads are operating with an unreasonable degree of risk. He believes the FRA has the evidence it needs to start crafting a rule to limit train lengths, a process that would include input from the industry. “My issue to this point,” Cothen said, “has been that effective action has not been taken.” The FRA says it disagrees.

Across the country, worried state lawmakers have tried to cap the lengths of trains that roll through their communities. Since 2019, in Arkansas, Iowa, Kansas, Georgia, Nebraska, Washington, Arizona and other states, lawmakers have proposed maximum lengths of 1.4 to about 1.6 miles. But every proposal has died before becoming law. Opponents, which include Class 1 railroad companies, claim that the efforts are driven by unions to create jobs and that the proposals would violate interstate commerce laws.

Georgia state Sen. Rick Williams, a Republican, attempted to work around this angst by offering a simple resolution last year that would have urged the FRA to limit train length. Even that died. “It’s frustrating,” he said, “when you see something that happens, like in East Palestine, Ohio, and you know it very easily could happen here and we could suffer the same consequences.”

Democratic Arizona state Rep. Consuelo Hernandez’s bill to limit train length was approved by two committees this session with bipartisan support. But Republicans refuse to put the bill on the floor for a general vote, and so it has stalled. ProPublica spoke with her the day after a 1.9-mile-long BNSF train derailed there. “The train companies are so powerful,” Hernandez said. “What it comes down to is public safety versus corporations.”

Many states have passed laws that would punish railroads for blocking road crossings, but that power, state courts rule every time, rests solely with the federal government.

At any moment, Congress could intervene and limit the length of trains. If it did, independent experts say, there’d be more trains, moving faster with fewer breakdowns and derailments, and customer service would improve. But the rail companies, which move 40% of the country’s cargo, have a lot of leverage. For more than a century, the industry has convinced lawmakers that the success of America is tied to the success of the rails; it’s a view that persists today, sustained by the $10 million the Association of American Railroads spends some years lobbying Congress.

So long trains have continued jumping the tracks.

In June 2019, one month after the inconclusive GAO study, a 2.2-mile-long Union Pacific train derailed in Nevada. It was so long and the terrain so mountainous that at times sections of the train climbed uphill while other sections climbed downhill, which made driving it a nightmare. Ultimately the engineer couldn’t manage it, and the train lifted a car up and dropped it on the ground. Twenty-seven cars followed.

In July, a 2.5-mile-long Union Pacific train derailed for the same reasons elsewhere in Nevada.

In August, a 1.6-mile-long Union Pacific train going 48 miles an hour derailed in Texas. The company ran computer simulations after the crash and concluded it never should have been operating the long train at that speed at that spot on the tracks.

In September, Union Pacific crashed yet another long train. It was 1.5 miles long and broke in two in Illinois. Half of the train rolled out of control away from the other half. It then slowed, stopped and began rolling back. The two halves collided and exploded. The fire spread underground through a storm drain and ignited a holding pond at a chemical plant. More than 1,000 residents and at least 1,000 schoolchildren were evacuated.

And then in October, in separate instances, Norfolk Southern derailed two long trains, both in Georgia. One was 2 miles long. The engineer had struggled to control it, and his use of the brakes caused the rear of the train to run into the front and lift a car off the tracks. The other train was 1.6 miles long. Its autopilot had the brakes applied in the front and the engine in the middle giving it gas, and as it reached the bottom of a hill the opposing forces popped 32 cars off the tracks. They ruptured a pipeline, which released nearly 2.3 million gallons of natural gas.

The following summer, in June 2020, a 2.3-mile-long Union Pacific train derailed in Idaho because it was too big, the FRA determined. It was constructed unevenly with 34 empty cars coupled near the front and loaded, heavy cars behind them. The heavy cars pushed the light cars off the tracks. The FRA also determined the engineer lacked the training necessary to operate a train of that length.

In July 2020, a 2-mile-long BNSF train derailed in Arizona for similar reasons: a long block of heavy cars coupled behind a set of empty cars squeezed them off the tracks.

The companies involved in these accidents did not comment on them specifically. See what they said about their safety practices here. BNSF did not comment at all.

First image: A 1.5-mile-long train that broke in two in Illinois. Second Image: A 2.2-mile-long train that derailed in Nevada. (First image: Derik Holtmann/Belleville News-Democrat via AP. Second image: Nevada Department of Public Safety via AP.)

Finally, in September 2020, the FRA launched a study examining the brake systems in long trains. The agency did not say why it took three years after the Hyndman derailment and the warnings from the union to begin examining the issue. It plans to complete the study this year. Also, late last year, it completed a small survey of rail workers, labor unions and railroad managers. Managers claimed long trains pose no new dangers, but government employees and labor unions said they are concerned.

The National Academies of Sciences, doing a separate assessment of trains longer than 1.4 miles at the request of Congress, must report its findings by June 2024.

Three days after the evacuation of Hyndman, Walls and his family returned home. They’d been gone only 72 hours, but it felt like a reunion with neighbors they hadn’t seen in years. He mowed his grass. It felt good doing something so pedestrian.

But Shaffer and his wife never returned to their doublewide trailer. It wasn’t safe, Shaffer recalls being told by CSX. “Pretty much had to fight with them to get my guns and stuff out of there,” he said. The company paid out a settlement the couple used to buy a big house with a big porch 7 miles out of town, far away from the railroad tracks. But even years later, the derailment haunts him, whether he is waiting uneasily in his truck at a railroad crossing or watching the news. When the East Palestine disaster appears on his TV, he has to get up and walk away. “It’s definitely still with me,” he said.

Sutphin and Mia bounced from her aunt’s house out of town to a hotel with her stepdad then to a house on Myrtle Beach, an upscale vacation town on the coast of South Carolina, and stayed there for a year. Every time an airplane flew over the house, Sutphin shook and ran to the window, afraid that something was about to crash into them. Mia rarely slept through the night. Sutphin financed their long vacation with a $50,000 check from CSX. The railroad also bought her a brand new Hyundai Santa Fe valued at $32,000.

Sutphin and Mia play on a swing set in Sutphin’s grandmother’s yard in Hyndman. (Jamie Kelter Davis for ProPublica)

After it nearly razed the town, CSX handed out a lot of money. It bought residents clothing, medicine, food, gas and hotel rooms. It reimbursed businesses for lost revenue. It paid volunteer firefighters every day about $1,000. It gave residents so-called inconvenience fee payments of about $300 a day. It gave one family $10,000 for veterinarian bills and damage to its property. It gave the fire department $190,000. A church pastor said residents welcomed the payments, but he also said they felt like “hush money,” and that’s the effect the money appears to have had on some residents. When ProPublica asked about the derailment, many said that the railroad did “all right by” them. Cleaning up and rebuilding the town and the tracks, according to the FRA, cost $9.6 million. CSX defended the money it spent around town, saying it did not ask the residents to release their legal rights in exchange for the payments. “Such actions,” a spokesperson told ProPublica, “are part of CSX’s industry-leading standard of care when incidents like the derailment in Hyndman occur.”

Walls remembers a CSX official walking up to him while he was standing on the front steps of the charter school on the morning of the derailment, a gray column of smoke from the tanker car still billowing into the sky. “I know we came in and messed your town up,” the official said, “but we’ll make it right before we leave.” Walls appreciates the money CSX spent on the town and its people. But that was the railroad’s responsibility. What would make things right, he said, is “making sure that the trains coming through here are safe.”

Hyndman (Jamie Kelter Davis for ProPublica)

Do Blocked Railroad Crossings Endanger Your Community? Tell Us More.

Correction

April 3, 2023: This story originally misstated the brand of Kristina Sutphin’s car. It is a Hyundai Santa Fe, not a Honda.

by Dan Schwartz and Topher Sanders, with additional reporting by Gabriel Sandoval and Danelle Morton, graphics by Haisam Hussein

Minnesota Lets Nurses Practice While Disciplinary Investigations Drag On. Patients Keep Getting Hurt.

1 year 7 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. This story was co-published with Minnesota Public Radio and KARE-TV.

Amy Morris started working at Hilltop Health Care Center in Watkins, Minnesota, in June 2021 with a clean nursing license that belied her looming troubles.

Morris, a licensed practical nurse, had been fired from a nearby nursing home seven months earlier for stealing narcotics from elderly residents. The state of Minnesota’s health department investigated and found that the accusation was substantiated, and then notified the Board of Nursing, the state agency responsible for licensing and monitoring nurses.

But even though state law requires the board to immediately suspend a nurse who presents an imminent risk of harm, it allowed Morris to keep practicing.

In September 2021, supervisors at Hilltop discovered that pain pills were disappearing during Morris’ shifts and called the sheriff. Only then did Hilltop learn of allegations of narcotic theft that had been made nearly a year earlier at the other nursing home.

“I thought, ‘How is she practicing now?’” Meeker County Sheriff Brian Cruze recalled.

In an excerpt from an October 2021 Minnesota Department of Health report, a manager for Hilltop Health Care Center said the facility didn’t know about a previous incident in which nurse Amy Morris was found to be involved in drug “diversion,” or theft. (Screenshot by ProPublica)

The answer, ProPublica found, is that the nursing board’s investigations frequently drag on for months or even years. As a result, nurses are sometimes allowed to keep practicing despite allegations of serious misconduct.

It wasn’t supposed to be this way. In the face of intense criticism eight years ago, the nursing board announced changes to improve its performance. But that progress was short-lived, ProPublica found.

Since 2018, the average time taken to resolve a complaint has more than doubled to 11 months, while hundreds of complaints have been left open for more than a year; state law generally requires complaints to be resolved in a year. Some nurses, like Morris, have gone on to jeopardize the health of more patients as the board failed to act on earlier complaints.

Some of the board’s problems stem from vexingly bureaucratic issues, ProPublica found. For example, the board had started meeting every month to resolve cases more quickly. But, for the past few years, it has gone back to meeting every other month.

Some complaints get caught in a general email inbox, where they sometimes sit for weeks or months before being forwarded to staff for investigation, according to current and former staffers.

And the board, which oversees licensing and discipline for more than 150,000 nurses, has been perennially shorthanded. By state law, the board is supposed to have 12 nurses and four members of the public. But at times, it has operated with barely enough members to make up a quorum. In March, Gov. Tim Walz made five appointments to the board, leaving one vacancy.

Other problems stem from the board’s professional staff, who investigate complaints and prepare the materials the board uses to make disciplinary decisions. Several former employees told ProPublica that the lag time in resolving discipline cases could be attributed to a dysfunctional office environment and a wave of resignations, many of them since the board’s August 2021 selection of veteran staffer Kimberly Miller as executive director.

David Jiang, who resigned from the board in August because he moved out of the state, told Walz in a letter that the board’s problems “arise because of a general lack of confidence from the staff, lack of communications to the board, and, most importantly, a general lack of oversight by the Board.”

Walz’s office did not respond to ProPublica’s requests for comment about Jiang’s concerns.

David Jiang resigned from the Minnesota Board of Nursing in August, telling Gov. Tim Walz in a letter that mismanagement by Executive Director Kimberly Miller had contributed to dysfunction at the agency. (Highlights added by ProPublica)

William Hager, a former legal analyst for the board, vented his frustrations about Miller’s leadership in an email to another employee in February 2022. “I am very concerned the Director seems to have been unaware of this ‘backlog,’” Hager, who left the board a few months later, said in the email. Miller “has chosen to not learn how to work” the case management system “or engage with software and staff to oversee our work.”

Miller, who worked for the board for more than two decades before becoming executive director, acknowledged the case backlog in an interview but said she was working to “right the boat,” including by hiring a consultant to improve board performance. Although the number of pending complaints is higher now than it was after a critical 2015 state audit, the backlog has been reduced by about a quarter since peaking last summer, according to state data.

“I think that we are on a good course at this point, and we’re making the changes that we need to, and learning to work as a team, and working out our system that I think is going to be really wonderful at some point,” Miller said in an interview. She did not respond to questions about criticism of her job performance.

Miller blamed the backlog on the transition to remote work during the height of the pandemic and on a new case management system that she said board members found difficult to use. She said some cases simply take longer than others. When a nurse won’t agree to discipline as part of a settlement, she said, the board must file the case in the state’s administrative court, where Miller said scheduling a hearing can take “at least a year.”

But a spokesperson for the administrative court said that the court was not the source of delays, and nurse discipline cases are concluded on average in four months from the time they are filed.

The state’s own data, in part, counters Miller’s assertions of progress. The board closed more complaints in fiscal years 2020 and 2021, respectively, than it did in 2022, when vaccines were widely available and many industries were returning to in-person work.

It was not clear why the board did not move quickly to suspend Morris after the substantiated report of pill theft. Miller declined to discuss individual discipline cases, citing confidentiality rules.

ProPublica contacted 10 current and seven former members of the board. None responded to requests for comment.

The nursing board finally issued a temporary suspension of Morris’ license in November 2021 — a month after prosecutors filed charges in the Hilltop case. She is facing felony theft charges for both incidents and has failed to show up in court. She has not entered a plea because she has not appeared to face the charges, and authorities have issued warrants for her arrest.

She did not return messages left on her cellphone and sent by email.

Administrators for both facilities declined to comment. Records show that one Hilltop manager was frustrated by a lack of warning about Morris. The manager complained to a state inspector that there was “nothing flagged on the background study or license verification,” according to the facility’s inspection report.

“This is not a facility system problem but a state system problem,” the manager said.

Investigations Drag On

When Christy Iverson started working for the board last year on investigations of nurse misconduct, she was surprised by the backlog of cases. Some she took on were around five years old. It was embarrassing, she said, to put her name on cases that had been on hold for so long.

Then, about four months into her tenure, she said, she was instructed to help the licensing staff with an influx of applications ahead of an anticipated nursing strike at several hospitals in the Twin Cities and Duluth areas. Iverson, who had spent over a decade working in leadership positions at an area hospital, said she largely spent her days folding letters and sorting paperwork. So she quit.

The problems she observed weren’t new. A Minneapolis Star Tribune investigation in 2013 had sparked the state audit that found serious delays at the board and led to improvements for a time.

With auditors scrutinizing it in 2014, the board began to dispose of complaints more quickly. The average age of closed cases was reduced from six months to four. But delays then climbed, eventually reaching the current average of 11 months, according to state data.

And despite a state mandate to resolve complaints within a year, the percentage of cases that go beyond that mark has soared from less than 5% in 2016 to 30% now, the state data shows.

Miller said the board is mindful of the backlog and puts a priority on “all of our more egregious cases.”

Minnesota’s Nursing Board Resolved Complaints Faster After a 2015 State Audit, But Progress Has Reversed Note: Years are the board’s fiscal year, which runs from July to June, and the chart shows complaints according to the fiscal year in which they were closed. The 2023 value is the average as of March 2023. (Source: Minnesota Board of Nursing)

An internal email provided to ProPublica described how complaints can sit for weeks or even months simply because they weren’t forwarded in a timely manner. Those delays, the employee wrote, were “unprofessional” and “inefficient.”

For example, a complaint about a nurse stealing medication sat in the main inbox for more than two months before it was forwarded to the discipline staff, according to that internal email. It was the fourth complaint the board had received about that nurse. The employee’s email describing these delays was sent to several other employees and the board’s executive director in December. Miller did not answer ProPublica’s questions about the employee’s allegations.

Some delays begin in the earliest stages of processing a complaint, according to former employees and lawyers who represent nurses in front of the board. Eric Ray, a former discipline program assistant from January 2020 until fall of 2021, said in an interview that the board didn’t always meet statutory requirements to notify nurses of a complaint within 60 days of receiving it. Ray said he saw complaints “sitting for months or a year” before the board sent a notice to the nurse.

Miller said the board “did take seriously the 60-day issue” and recently made changes to the management software so that it would remind caseworkers that a letter needed to be sent out.

The notification delays can also hurt a nurse’s ability to mount a defense, according to lawyers who defend nurses in front of the board. As complaints age, they become more difficult to investigate, evidence becomes harder to locate, nurses move on to other jobs and witnesses forget key details.

“This is your professional career on the line,” said attorney Marit Sivertson. “It makes it incredibly difficult for someone to be able to fairly defend themselves.”

The state law that requires the board to resolve complaints within a year also gives the board sweeping discretion to take longer if it determines the case can’t be resolved in that time. Still, Sivertson said that does not explain why so many cases take more than a year to resolve. She and eight other lawyers have met several times to raise these issues with Miller and assistant attorney general Hans Anderson, legal counsel to the board. In October, they presented their concerns at a board meeting. They said they are still waiting for a response.

Del Shea Perry is also still waiting. It’s been nearly five years since the death of her son, Hardel Sherrell, in the Beltrami County Jail in northern Minnesota. The incident sparked public outrage and led to reforms and consequences for some of the officials connected to his care. Sherrell died on the floor of his cell after guards and medical staff refused his pleas for help. A pathologist hired by Perry as part of a wrongful death lawsuit later ruled that he died of Guillain-Barré syndrome, a treatable neurological disorder.

Del Shea Perry, mother of Hardel Sherrell, who died in jail in 2018, founded Be Their Voices, an organization that advocates for incarcerated people and their families. (Caroline Yang, special to ProPublica)

State legislators passed a law named after Sherrell that aims to improve access to health care for jail inmates. Todd Leonard, the jail doctor who monitored Sherell’s condition via telephone, had his medical license indefinitely suspended in early 2022. And this month, Beltrami County and Leonard’s company agreed to settle Perry’s lawsuit by paying Sherrell’s family $2.6 million.

But there have been no consequences for Michelle Skroch, a nurse who worked for Leonard and was directly in charge of Sherrell’s care in the last two days of his life. According to a state administrative judge who ruled in the doctor’s licensing case, Skroch failed to provide care to Sherrell or even check his vital signs as he lay nearly lifeless on the floor of his cell wearing adult diapers soaked in his own urine.

An emergency room doctor had released Sherrell to the jail with instructions to bring him back if his symptoms worsened. Instead, Skroch instructed jail staff not to assist him because she said there was nothing medically wrong with him, according to the judge’s report.

The judge wrote that it could appear from Skroch’s notes that she had “provided some type of care or assessment” of Sherrell. “She, in fact, did not,” the judge wrote.

Video later showed she had only briefly peered into his cell twice and had missed that he was in distress: Sherrell was unconscious on the floor with a white substance coming out of his mouth.

In response to Perry’s lawsuit, Skroch testified that she was able to sufficiently assess Sherrell’s condition without touching him and that she believed his condition was improving. She also noted that emergency room doctors had diagnosed him with weakness and “malingering,” a medical term for faking illness.

In ruling that the medical board had cause to discipline Leonard, the judge also called for the nursing board to investigate Skroch’s “dereliction of duty and shocking indifference.” Noting that the doctor was both Skroch’s supervisor and her romantic partner, the judge wrote it appeared “she was unconcerned about being held accountable by the attending physician.”

Five years later, Skroch still has an unblemished license and her online professional profile identifies her as the nursing director of Leonard’s medical firm. She declined to comment.

Another nurse who provided care to Sherrell at the jail filed an official complaint about Skroch with the nursing board. But she said that after an interview with a board representative about a year after the death, she has not heard an update. The board is required to provide updates every 120 days on the status of a case.

“I have no idea what the board is doing, and it sure as hell shouldn’t take 4 years to investigate,” Perry wrote in a text message.

“A Clear Message”

When a nurse is accused of misconduct, the board can seek discipline ranging from a reprimand, which is essentially a public slap on the wrist, to a license revocation, which means the nurse can no longer work in the field. Typically, the board allows a nurse to continue working while it tries to reach an agreement or takes the complaint to the state’s administrative court.

(Matt Huynh, special to ProPublica)

But in cases when the nurse poses an immediate risk to patients, the board can use its power to issue a temporary suspension and remove the nurse from practice while it investigates.

The board rarely used that power until the state legislature changed the law in 2014. Under the revised rules, the board wasn’t just authorized to use the emergency suspension — it was required to do so in cases where there was “imminent risk of serious harm.”

As a result, the board ramped up its use of temporary suspensions, issuing 55 of them from 2014 to 2017, more than twice as many as it had in the preceding four years, according to data reported to a national database of actions taken against medical professionals.

In 2018, this increase was touted by Daphne Ponds, then a board employee. Speaking at a national seminar on nurse regulation, Ponds, who helped investigate complaints against nurses, told her peers that the Star Tribune’s stories had “made us look bad, made us look ineffective.”

She added, “The legislature had really sent the board a clear message that you have this tool of temporary suspension — you need to use it.”

But about that time, the board had reverted to its pre-audit practices. In 2018, it issued only three temporary suspensions, according to a national discipline database. And it issued only 11 over the next three years.

Miller said the board is now inclined to protect the public by pursuing a voluntary agreement to stop practicing with nurses who’ve been the subject of a complaint. She said this is because there are “more hoops” to jump through to issue a temporary suspension, while the voluntary agreements can be drafted and signed by the nurse in days.

Asked how she reconciles this with a state law requiring a temporary suspension when there is an imminent risk of serious harm, Miller said Minnesota’s attorney general had signed off on the strategy.

Hager, the former legal analyst for the board, said that while a stipulation to cease practicing may work in some cases, it doesn’t work in all of them, especially when nurses don’t want to cooperate. In one case reviewed by ProPublica, a nurse kept her license for more than a year because she refused to sign a stipulation. The board suspended her only after she was convicted of financial exploitation.

Sometimes, the delays hurt patients. In early 2018, the board received complaints about a nurse named La Vang that accused him of stealing narcotics from patients — including one allegation that was validated by the state health department.

But the board didn’t issue a temporary suspension, and Vang got a new job later that year. He stole pain medicines from another patient, LaVonne Borsheim, according to a lawsuit that Borsheim and her husband brought against Vang and the home care company that employed him.

In that lawsuit, Borsheim described pain so severe that she didn’t want to go on living. (Attempts to reach Vang for comment were unsuccessful.)

By the time the nursing board got Vang to sign an agreement to cease practicing in August 2018, the police had already arrested him on charges that he had stolen Borsheim’s drugs. Vang pleaded guilty in federal court to obtaining controlled substances by fraud. At his sentencing, Vang’s attorney said he was in treatment for drug addiction and was embarrassed that he had violated Borsheim's trust. He was sentenced to 18 months in prison.

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by Emily Hopkins and Jeremy Kohler

Lawmakers Have Renewed the Effort to Ban Asbestos

1 year 7 months ago

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Citing ProPublica’s reporting, lawmakers on Thursday reintroduced a bill that would ban the use of asbestos in the United States, bringing it in line with dozens of countries that have outlawed the carcinogenic substance.

Even though asbestos is known to cause deadly diseases, the U.S. still allows companies to import hundreds of tons of the raw mineral. It is primarily used by two chemical manufacturers, OxyChem and Olin Corp., in the production of chlorine. The legislation, called the Alan Reinstein Ban Asbestos Now Act of 2023, would ban the import and use of all six types of asbestos fibers. It would give OxyChem and Olin two years to transition its asbestos-dependent chlorine plants to newer, asbestos-free technology.

The chemical industry has long argued against a ban in the U.S. by saying employees are protected by strict safety protocols. Last year, however, ProPublica found that workers were repeatedly exposed to asbestos in some of the plants. In one OxyChem plant in Niagara Falls, New York, former workers said asbestos floated in the air and accumulated in corners and on top of machines. At an Olin plant in Alabama, a longtime janitor said she was tasked with scraping up dry asbestos but wasn’t given protective gear, even while pregnant. (OxyChem said the workers’ accounts in Niagara Falls were inaccurate but would not specify which details were incorrect. Olin did not respond to multiple requests for comment.)

“ProPublica’s recent reporting on the devastating damage of this deadly substance has underscored the need for urgent action,” said Rep. Suzanne Bonamici, a Democrat from Oregon who is sponsoring the bill in the House. “There is no safe level of exposure to asbestos, and we have seen that we cannot rely on industry to put the safety of workers first.”

In a press release, Sen. Jeff Merkley, another Democrat from Oregon and the bill’s sponsor in the Senate, also cited ProPublica’s reporting as a reason the ban is necessary.

“Any expert will tell you there simply is no level of exposure to asbestos that is safe for the human body,” Merkley said in the release. “We’ve known for generations that asbestos is lethal, yet the U.S. has continued to allow some industries to value profits over people.”

The bill is named after Alan Reinstein, a man who died in 2006 from mesothelioma, a cancer caused by asbestos. His wife, Linda Reinstein, has long advocated for an asbestos ban in the U.S. and co-founded the Asbestos Disease Awareness Organization, a nonprofit that works to protect the public from the dangers of the substance.

“This long overdue legislation will protect all Americans — especially vulnerable workers, disadvantaged communities, consumers, first responders, and children — who are most at-risk from being exposed to this deadly carcinogen,” Reinstein said in a statement on Thursday.

Merkley and Bonamici have tried to pass similar legislation before, but they have not been successful. The bill they proposed last year had a hearing in a Senate subcommittee and five co-sponsors in the House, but it ultimately stalled.

At the Senate hearing, industry representatives pushed back on efforts to outlaw asbestos, saying an all-out ban would be too onerous for the chemical companies. They cautioned that a prohibition could threaten the supply of chlorine in the U.S., some of which is used to clean drinking water.

OxyChem and Olin did not respond to requests from ProPublica for comment on the latest bill. The American Chemistry Council, an industry trade group, did not respond to ProPublica, either.

The Environmental Protection Agency, meanwhile, is working on its own asbestos ban. The agency proposed a rule last year that would ban only chrysotile asbestos, the most commonly used type and the one that is used in chlorine plants. The EPA has missed some legislative deadlines to enact the ban but says it will finalize the regulation by October.

Two weeks ago, the EPA invited the public to weigh in on new information the agency received about the proposed asbestos ban, including ProPublica’s reports about workplace safety.

Some advocates worry the EPA’s ban will be further delayed or be overturned in court. They point to the EPA’s failed attempt to enact an asbestos ban in 1989, which was overturned by a federal judge after companies sued the agency.

“We can’t afford to wait any longer,” said Reinstein, who believes legislation will be the most effective way to stop asbestos use. “The cost of inaction and the lives we know will be lost is far too great of a price to pay.”

Merkley and Bonamici’s bill is also endorsed by several other public health groups, including the International Association of Fire Fighters and the American Public Health Association.

by Neil Bedi and Kathleen McGrory

Two Republicans Kicked Off County Election Board in North Carolina for Failing to Certify Results

1 year 7 months ago

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The courtroom was packed when the North Carolina State Board of Elections convened on Tuesday to consider removing two members of the Surry County Board of Elections from their posts. At the Surry County GOP convention not long before, one board member, Tim DeHaan, had appealed for people to attend the meeting at the county courthouse. And now, dozens of supporters, one with “We the People” tattooed on his forearm and another with cowboy boots stamped with American flags, whispered tensely among themselves.

DeHaan and Jerry Forestieri were facing the state elections board because, at a November meeting to certify the county’s 2022 general election results, they had presented a co-signed letter declaring “I don’t view election law per NCSBE as legitimate or Constitutional.” Then Forestieri refused to certify the election, while DeHaan only agreed to certify it on a technicality.

This month, both Forestieri and DeHaan refused to certify a redo of a November 2022 municipal election. The new contest had been called after a poll worker allegedly made a mistake in telling voters that one of the four candidates had died, which could have swung a race decided by eight votes. (The results of the second race were the same as the first.)

Both elections were ultimately certified by the board’s three Democrats. But DeHaan’s and Forestieri’s refusals to certify, along with similar actions by conservative county election officials in Arizona, Nevada, New Mexico and Pennsylvania, exposed a weakness in the nation’s electoral system. If local officials failed to certify, the disruption could cascade and cast into dispute state and federal election outcomes, potentially allowing partisan actors to inappropriately influence them, according to election law experts. A ProPublica review of 10 such cases found that most officials have not faced formal consequences for their refusal to certify. DeHaan’s and Forestieri’s hearing was to be the first completed disciplinary process for such officials nationwide after the 2022 election.

At the trial-like state elections board meeting, Bob Hall, the former executive director of the watchdog group Democracy North Carolina whose complaint had launched the disciplinary process, argued that DeHaan and Forestieri could not be trusted to supervise elections because of their refusal to follow the law. Forestieri and DeHaan told the board that they could not be certain of the identities of voters or the validity of their ballots because they disagreed with a federal judge striking down a voter ID law for discriminating against minorities. Forestieri defended their actions as a “free speech issue.”

The lone Republican board member present, Stacy Eggers, made two motions to remove the men from office, and each motion passed unanimously, 4-0. “We cannot substitute our own opinions,” Eggers said, for “what the law actually is.”

As the motions passed, one woman exclaimed in the quiet courtroom: “The law is perverted! The law is perverted!”

Afterward, in the hall outside the courtroom, DeHaan and Forestieri were sought out by local supporters and election deniers who’d traveled to the hearing from outside the county. Talk swirled of appealing the decision in court, though Forestieri said a final decision about an appeal would be made at a later date.

“We took a stand for lawful, credible elections appropriate for the owners of this republic, we the people,” said Forestieri at the courthouse. “I cannot apologize for that.” Forestieri later wrote to ProPublica that he disagreed with his removal from office, and that the “NCSBE proved itself unwilling to recognize clear law in General Statutes” by striking down his and DeHaan’s arguments.

DeHaan declined to comment and did not respond to written questions.

Michella Huff, the elections director for Surry County, had watched the proceedings stoically. It was a year to the day since Huff had blocked the chairman of the county Republican Party from illegally accessing her voting machines to further a conspiracy theory, after which he launched a pressure campaign that included attempts to reduce her pay and raucous protests featuring nationally prominent election deniers, as ProPublica has previously reported. (The county chairman told ProPublica that he did not seek to cut her pay, though text messages and emails obtained via public records requests showed otherwise.)

Huff helps election workers on a day when all voting machines are tested to ensure each is functioning properly. (Cornell Watson for ProPublica)

As a result of the year’s travails, Angie Harrison, Huff’s deputy director, has said she will retire in June. “Here in Surry County and across the entire nation, people want to put more scrutiny on the election process, which is a good thing to help voters understand the law — our philosophy is to educate,” she said. But “we take it personally when people start attacking the job that we have been so proud to deliver accurately and without bias.”

In early 2022, a national survey from the Brennan Center for Justice found that a fifth of local elections officials reported they were unlikely to stay in their jobs for the 2024 election. “We’re in the middle of an exodus of election workers,” said Larry Norden, the senior director of the Brennan Center’s Elections and Government Program. An Arizona election official, whose county supervisors refused to certify November 2022 results until ordered to do so by a court, also recently left to “protect her health and safety” after working conditions became “intolerable,” as her lawyer wrote in a letter to the county.

Huff, however, is staying in her post. Last fall, after the state’s attorney general, Josh Stein, read ProPublica’s story about Huff, his office gave her an award for her “incredible commitment to democracy” as “she refused to buckle to those who lie about stolen elections,” Stein wrote in a statement. A year ago, she had felt overwhelmed by the new and unprecedented challenges inundating election officials, but now she felt more capable to confront them. “Not saying that it’s going to be easy” in 2024, she said, “but I’m a little more prepared now for the what-ifs.”

The election deniers departed the courthouse boisterously, talking about going out for lunch. Huff got in a van with another election worker and was driven past cornfields to her office. The November 2022 election was finally done, four and a half months late, and now it was time to get ready for the next one.

by Doug Bock Clark