JANET T. MILLS arromsv GENERAL STATE or MAINE TEL: (207) 626-8800 OFFICE or THE ATTORNEY GENERAL AUGUSTA, Mama 04333?0006 January 31, 2014 Fernald LaRochelle Deputy District Attorney District IV Kennebec County Superior Court 95 State Street Augusta, Maine 04330 Re: Maine CDC Issues Dear Fern: REGIONAL OFFICES 84 HARLOW ST. 2m: FLOOR BANGOR. MAINE 04401 TEL: 94130310 FAX: 941?3075 415 CONGRESS ST. STE. 301 Ponnann, MAJNE 04101 TEL: 63220260 FAX: (207) 822.0259 14 Access HIGHWAY. STE. 1 Cannon. MAINE 04736 In; 496-3792 . Fax: 4966291 Thank you for accepting the responsibility for following up on the December 12, 201.3, OPEC-A report. With your authority as Deputy District Attorney of Prosecutorial District Four, I have asked that you investigate and examine the facts and that you exercise independent judgment to pursue or not pursue any violations of state civil or criminal law. Please feel free to speak with anyone you choose and take whatever action appears appropriate. Because of the many facets of the CDC matter, as we discussed last month, this of?ce wishes to avoid even the appearance of a con?ict of interest. I . thank you for assisting us in this regard and'I thank District Attorney Maloney for allowing you to do this. Very Truly Yours, Janet T. Mills Attorney General KENNEBEC COUNTY COURTHOUSE 95 State Street, Augusta, ME 04330 5234158 or 6234157 Maeghan Maloney District Attorney Fax: 522-5339 Femand LaROChe'ie SOMERSET COUNTY COURTHOUSE Deputy DtSirlCt Attorney 41 Court Street, Skowhegan, ME 04976 474-2423 01' 474-5517 Fax: 474-7407 STATE OF MAINE OFFICE OF THE DISTRICT ATTORNEY PROSECUTORIAL DISTRICT-IV December 12, 2014 Honorable Janet Attorney General, State of Maine Office of the Attorney General 6 State House Station Augusta, Maine 04333-0006 Re: Healthy Maine Partnerships . Dea-raAttomey General_Mills,_ . HIV. .E?u?gt?iioar'request I have i??yi?wed?ih? materia?lr?re?latihg its tif? a?I'IEE?d?aestiu?ction 0r treasurezistms their: 3012- andlarn to yo'uas tojwhether anyone'i?nvcilved should inc?ur criminal liability: . i sought to make the following determinations: fitst,_vvere documents destroyed; seoond, if so, were these documents ?public defined by 1 M.R.S.A. 402(3); third, whether the conduct constitutes a civil infraction (1M.R.S.A. ?410), or a provable violation of any potentially appliCable criminal statute; in this cause, 1 MRSA. 452, or17~A M.R.S.A. 456. In making these determinations, I. have reviewed the recordings of the proceedings before the Government Oversight Committee which were supplied to me by the investigative division of your office, the reports of OPEGA, and a binder of intra-' department emails for the period in question compiled by the Ombudsman in your office. Documents relating to the reconfiguration. and funding .of the Healthy Maine Partnerships for 2013 were intact destroyed, but the question is Whether any were ?public int 402(3), keeping in mind that 1 401states that the :prpyisionsz of the s?ubchapter'relating to public records f. tie?liberally construed-1hWhile it is cle?arr'th'at the deVeIOpment cf 'Oriteria for the recon?guration and I distribution- .of funds was. acollaborative effort among some of the Hit/1P staff, and considered to be a so?called ?iterative? process lasting several months, during which different criteria were proposed, examined, discussed, and either retained or rejected, it does appear that at some point in June 2012, a document had been developed that would meet the definition of ?public record? contained in 1 M.R.S.A. 402(3), and would not fall into any of the exceptions thereto. I will refer to this as the June 6 document. From all available evidence, the Deputy Director of the MCDC acknowledges directing that all copies of that document be destroyed. Her stated purpose for doing this was to prevent confusion about what document would be the Department's actual final document - what she referred to as ?version control". The laSt time anyone recalls seeing that document was June 13, 2012, but we have no evidence to establish exactly when, after that date, it was destroyed. While it was clearly the practice of the department to retain documents prepared or submitted in connection with the standard RFP process, this was not an RFP process. Rather, it was an ad hoc process used by the department to try to identify relevant and meaningful criteria to determine how to allocate funds for the HMPs in Fiscal Year 2013. It appears that the Deputy Director and others at MCDC considered everything but a finai document to be a working draft, and OPEGA noted in its report that it not identify formal guidance at the State or Department ievel on what documentation should be retained for agency processes or decisions in situations such as this". (OPEGA report at page 30) The question therefore comes down to whether, under either Title 1? 410 or 452, or 17-A 456, there is probative evidence of intentional or knowing conduct on the part of the Deputy Director.1 it is noteworthy that 456 specifies that the conduct must have been intentional, and . .knowing that (s)he lacked authority to do so? 2(1749 M.R.S.A. 456 (1 in my view, to establish the necessary culpable mental state under any of these three statutes, we would have to prove that the Deputy Director knew that she was destroying or ordering the destruction of a public record. Given the lack of formal guidance either on the State or Department level as noted by OPEGA, it is not clear to me that she did know. Accordingly, I do not beiieve that there are provable civil or criminal violations. I am, - - Fernand LaRochelle Dep. District Attorney 1 1 M.R.S.A. 410 prescribes "wilful!" conduct, which in 34 (1) of Title and in common parlance (Random House Unabridged Dictionary (2d ed. 1993), means intentional, knowing or deliberate conduct. 2 The 1975 Comment to section 456 says: "This section shares with others in this chapter the aim of promoting the integrity of governmental functions. lt'is drafted however, so as not to include inadvertent mishandling of material.?