A Just Cause (9 page)

The controversy over the governor's refusal to comply with the decisions of JCAR regarding the FamilyCare expansion was the most recent and well-known incident, so it seemed wise to begin the hearings with that. It was ongoing, received extensive press coverage, and served the committee's purpose: to cast the Blagojevich administration as operating contrary to the law, violating the principle of separation of powers, and usurping legislative prerogative. Currie and Ellis initially sought to legitimize their claim of malfeasance, wrongful conduct by a public official. To add credence to the contention, the committee asked Professors Andrew Morriss and Robert Rich to appear as witnesses and to explain and justify—from a scholarly perspective—the concept of balance of power, the provisions of the Illinois Constitution, and the authority of JCAR. The committee was well aware of JCAR and its functions, and in fact, some members of the investigative committee were concurrently serving as committee members of JCAR. The professors' appearance was meant to legitimize the claim of malfeasance to the general public, to provide sanction of Illinois' system of rule review by a respected academic institution, and to show that the governor was ignoring the system by usurping a legislative prerogative and was conceivably violating the Constitution.

Andrew Morriss was the first witness. The law professor carefully explained JCAR's structure and Illinois' rule-making process and procedures. It was important, for public acceptance, that the committee establish the institutional validity of the JCAR process to uphold the charge that the governor usurped legislative prerogative. Morriss, a lawyer with a PhD in economics, met the committee's expectations. His scholarly recitation, delivered in a measured and professional manner, served to legitimize the JCAR incident as a valid inquiry by the investigative committee.

Robert Rich next gave his testimony, which focused on the particulars of the FamilyCare controversy. Rich provided facts and figures that would result from the program's expansion and also speculated about potential welfare fraud being attributed to state workers who enrolled someone for a state subsidy that exceeded the limits of the program established by the
legislature. He further asked whether doctors who treated people and then billed the state could be party to welfare fraud and whether they would ever be paid. If the state refused to pay the bills, he wondered, would applicants be subject to economic hardships? And where would the state obtain the $200 million projected to be the costs of expanding FamilyCare? “In my judgment what was done here represents a real problem,” Rich said, and “in my judgment these actions are irresponsible, not consistent with appropriate, constitutionally provided checks and balances” (208–9).
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Ed Genson sat quietly but took note of Rich's remarks.

To present the functions of JCAR, again for the benefit of public observers, the committee invited Vicki Thomas, JCAR's executive director. Thomas was a career bureaucrat who had served in that capacity for seventeen years. She grew up in Olney, Illinois, and after graduating from Southern Illinois University, she followed the suggestion of a career counselor and applied for a position with the Illinois senate Democrats. She was hired and worked on the staff of the senate president, Phil Rock. When Rock retired, she became executive director of JCAR. The methods and mannerisms of Vicki Thomas exemplified the epitome of a competent and dedicated public servant. She managed JCAR in a precise and scrupulous fashion. She was an ideal witness to expound on the authority of JCAR and to provide solid, factual evidence for the committee to use in constructing impeachment charges.

Similarly to the two professors, Thomas reinforced the legitimacy of JCAR and presented an overview of the intricacies of its workings. Her testimony, advised by Democratic members of the committee, consisted of a meticulous review of JCAR's functions, including the number of rules submitted each year, the relationship to the General Assembly, and the process of filing and modifying rules—JCAR 101, as she called it (224).

She focused especially on past difficulties her agency had experienced when dealing with the Blagojevich administration. Reciting the particulars of JCAR's operations and describing specific incidents when the governor attempted to obfuscate his actions or ignore JCAR's role resulted in Thomas giving extended testimony. To some in the audience, Thomas's statements had become tedious. Currie politely asked the witness to get to the point: the emergency rule and JCAR's rejection. Lou Lang, one of Thomas's advisors, came to her defense and informed the chairman that what Thomas was relating was critical. Attempting to move things along and maintain unity, Currie instructed Thomas to “carry on.” Thomas reminded the committee
that she had been asked to put the FamilyCare incident into “a framework of past experience to lead into the actions of the Department of Healthcare and Family Services (HFS).” Currie encouraged her to “go right to that” (232). Thomas presented a step-by-step review of the emergency rule, JCAR's rejection of the rule, the impact to the state budget of the expanded program, and the response of HFS.

Although Thomas's testimony was lengthy and went into great detail, it met the committee's objectives. She gave the impression of a consummate bureaucrat representing a legislative agency struggling to accomplish its tasks in accordance with established legal procedures, within the context of the Constitution, and in spite of political interference from the governor. She further institutionalized the role of JCAR and demonstrated that what HFS had attempted usurped legislative prerogative, was fiscally irresponsible and unconstitutional, and demonstrated poor governance. Her presentation helped sanction the charge of malfeasance. Ellis and Lang later apologized to Thomas for the committee's confusion over the scope of her remarks.
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The investigation then moved on to the most publicized element of the JCAR controversy. The prosecution witnesses were plaintiffs in the Caro case, Ron Gidwitz and Greg Baise, and their attorneys, Tom Hecht and Claudette Miller, from the Chicago law firm of Ungaretti and Harris. The Caro lawsuit had been covered by the press since its filing a year before, but it had emerged as a major topic in the last few months. Originally filed by Riverside attorney Richard Caro, the lawsuit was joined by Gidwitz and Baise, who in turn retained Ungaretti and Harris. Ron Gidwitz was a well-known Chicago-area businessman who had been active in Republican politics since the 1980s and had developed a reputation for his work in civic and charitable organizations. Greg Baise was a veteran of state government and the president of the Illinois Manufacturers' Association (IMA), a leading business trade association. Both Gidwitz and Baise served as symbols of the business community and became parties to the Caro litigation as Illinois taxpayers. The involvement of Gidwitz and Baise brought financial resources and a team of lawyers to the case. The Caro lawsuit expressed the substance of the committee's argument regarding the JCAR controversy: by ignoring JCAR and expanding the FamilyCare program without legislative approval and appropriation, the governor was acting in violation of the Illinois Constitution. The Caro case had not yet been settled, and Gidwitz reviewed the details of the proceedings to date.

To emphasize the investigation's impartiality and balance the testimony presented by the University of Illinois professors, the executive director of JCAR, and the litigants in the Caro lawsuit, the committee invited representatives of HFS, the defendants in the Caro case, to give testimony. The nature of the testimony presented by the preceding witnesses had been advised by the committee. In contrast, HFS was provided short notice and received the committee's request to appear only the day before. The department seemed to be a crew adrift without a captain. After Currie requested that the department appear, little thought or direction concerning the committee's request was forthcoming from the governor's office, where things were in disarray. Ed Genson was only peripherally aware of the JCAR controversy. Who made the decision that HFS would comply with the committee's request to appear is difficult to ascertain. Barry Maram, the director of HFS, agreed to appear voluntarily. He later would not comment on the decision to attend the impeachment hearings and declined to discuss his role.
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The committee had subpoena power and could have exercised it, but committee members felt that Maram was confident that he could deal with the committee's questions. Maram, HFS chief of staff Tamara Tanzillo Hoffman, and attorney Larry Blust were sworn in before the committee.

Maram and Hoffman were the first and only representatives of the Blagojevich administration to appear before the committee. Their appearance did not serve to support the governor's position. The committee was intent on establishing, for the record, that the governor was responsible for the decision to ignore the verdict of JCAR and proceed with the expansion of the FamilyCare program. The committee also intended to show that no funds had been appropriated by the legislature for expansion of the program, that the expansion had cost Illinois taxpayers millions of dollars, and that the governor had been fully aware of the consequences, as illustrated by his own press statements. If the committee could prove that the governor had engineered these violations, then it had proof of administrative malfeasance.

Maram began his testimony with a tedious review of the federal government's State Children's Health Insurance Program (SCHIP) and reported that actions by the Illinois legislature, Congress and President George W. Bush had reduced the program. The committee and the audience immediately sensed that Maram's initial remarks were an attempt to obfuscate the JCAR issue with a recitation of known facts. John Fritchey, a member of JCAR who was familiar with the facts, quickly interrupted and focused
on the committee's interests. He asked Maram why, instead of submitting an emergency rule to restore only the people dropped from the FamilyCare program because of the federal pullout, the administration had sought to expand the program. Trying to implicate Blagojevich specifically, Fritchey wanted to know who had made the decision to expand the program.

Fritchey repeatedly asked who had made this decision, but neither Maram nor Hoffman gave a definitive answer. Fritchey was a respectful interrogator, but as the questioning continued, the witnesses seemed to become unnerved. At one point, addressing the subject of lawyer-client privilege, given as a reason for not answering Fritchey's question, Hoffman sputtered, “I'm a lawyer. I don't—I don't know the rules about privilege and what is or isn't. My parents worked most of their lives two—you know two jobs for me to have my law license, and I don't know the parameters of what the code presents” (261–62). Maram and Hoffman said they could not recall any specific directions having come from the governor or the governor's office. They recalled discussing FamilyCare but could not recall who was in the meetings or any specific conversations with individuals concerning the expansion of the program, and they continued to dodge questions and give vague answers. They told Fritchey that they would check their notes, if they had them, and get back to the committee.

The witnesses appeared evasive and at times obviously befuddled. Their refusal to answer questions played into the hands of the accusers. The audience members became fascinated, and several shook their heads in disbelief. The witnesses were representatives of the Blagojevich administration, and the spectacle before them reinforced what many had long suspected: many of the governor's administrators were not dedicated, professional public servants but devious bunglers. Ellis, as the committee counsel, could not have picked better witnesses to serve his purpose. The ineptitude displayed by the representatives of HFS bordered on buffoonery and provided an impression of the governor's administration as incompetent, evasive, and hubristic.

Mike Bost, a Republican committee member from Murphysboro, continued the line of questioning taken by Fritchey and received the same vague answers from the witnesses. After a few awkward moments, Maram asked Currie if he could continue his testimony, claiming that “other people have had the opportunity to make statements” (268). Currie said he could but cautioned him to be brief and to stay on topic. Maram's statements again began to wander off topic, relating known facts, and again Currie interrupted and reminded him that the question was the governor's
authority to expand the FamilyCare program without the authorization of the legislature. He could finish his statement, Currie said, as long as he stayed on topic.

Maram continued, contending that the department's action to expand FamilyCare was taken pursuant to statutory authority and that the department had the right to set maximum income limits. The expansion, he said, was not a “huge expansion” as claimed by the plaintiffs in the Caro case and resulted in an increased enrollment of less than five thousand before the department was ordered to suspend expansion because of the ongoing Caro litigation (272). The costs of the expansion had not exceeded $6.3 million and were partly offset by premiums collected from the participants. Maram attempted to refute the Caro plaintiffs' claim that HFS lacked statutory authority to promulgate the expanded regulations and that the regulations were invalid. He argued that the courts had never contended that HFS did not have the authority to set rates based on income levels. Maram finished by reviewing statistics on previous raises of income levels and past JCAR approvals of income raises based on the impact of federal programs.

Lou Lang took up the questioning for the house majority. Lang was also a member of JCAR and was very familiar with the controversy. He wanted to establish for the record that a number of people were added to the FamilyCare program
after
JCAR prohibited the expansion and that the legislature had appropriated no funds for the expansion. Lang was a familiar voice in committee meetings and on the house floor. The tone of his questioning often bordered on sarcasm mixed with sanctimony, and he could be hectoring and at times seem irritating. His style of debating could annoy opponents, but he was skilled and his arguments were strong. Lang warned Maram that if they did not answer his questions, he would interrupt and ask the question again. He asked how many people were added to the FamilyCare program after the governor expanded it, and Hoffman responded that at one point there were five thousand and now it was about four thousand (280). Lang pounced on her answer and again asked how many people were added after JCAR prohibited the expansion of coverage. Lang wanted to establish that the department had ignored JCAR's authority and continued to enroll people in the program. He persisted, and after several back-and-forth questions and answers, the witnesses agreed to provide the committee with the true number by the end of the day.