Is justice on the horizon in North Dakota?

For over two years I’ve been following – with a strong sense of outrage and disgust – the travails of Sandy Blunt as he’s been pilloried by the prosecuting and investigatory authorities in North Dakota. At long last it appears there’s hope justice will be done.
The prosecutor who’s vindictive and unethical practices have made a travesty of justice is about to face her own fate. At the end of June, Cynthia Feland will be tried by a Disciplinary Board under the authority of the North Dakota Supreme Court for prosecutorial misconduct.
While Ms Feland tries to make light of the charges, the facts (something she’s quite unused to dealing with) are most definitely not in her favor.
In 2009, there were 17 cases that went thru the Disciplinary Board Panel Hearing; that’s where Feland is headed. And the odds aren’t good.
Only 2 cases were dismissed. Of the remaining cases, the Panel reprimanded the attorney in 6, the Supreme Court suspended the attorney in seven, and disbarred the offender in 2.
Let’s do the numbers.
– Feland has a twelve percent chance of acquittal – or about one in eight. She’s got equal chance of being disbarred outright.
– She’s got a thirty-six percent chance of reprimand, the next ‘most favorable’ outcome.
– It’s more likely (forty-two percent chance) she’ll be suspended (which would likely mean she loses her judgeship, which she won in an election last year).
So Feland has an 88% chance of being disciplined, disbarred, or having her license to practice suspended.
This has been going on far too long, and at a personal and professional cost to Sandy that’s just appalling. But it’s not just Sandy who’s suffered. All of us who work in this industry, who push hard to do the right thing, to deliver better results for injured workers, their families, and employers, are being penalized by this injustice.
Sandy Blunt was persecuted because he didn’t accept the status quo. He wasn’t willing to go along to get along. He required more of his employees at the North Dakota state work comp fund, more than just punching a clock and doing their time. Sandy set standards for performance and responsiveness that some couldn’t meet, and rather than acknowledging their own shortcomings, they turned on the person the State tasked with turning around their poor performance.
And the justice system, and many – but assuredly not all – of the people of North Dakota were complicit.
Feland’s hearing will take about two days. It’s to be held in the largest hearing room in the court building. It’s going to be gratifying to see the person who’s tried to ruin one of the finest people I know get her comeuppance.

What’s the latest from North Dakota?

Gosh, since the judge in Sandy Blunt’s case rejected his request for a new trial, a lot has happened. As winter settles in on the plains, allow me, dear reader, to separate the wheat from the chaff (a bit of a NoDak metaphor, doncha know…).
First, Blunt’s attorney appealed his case to the US Supreme Court. It was highly unlikely those worthies will consider the case, but in a case as unfair as Sandy’s, one can always hope. Unfortunately, his case will not be heard.
Second, one of the prosecution’s chief witnesses against Blunt, James Long, lost in his effort to gain whistleblower status. Long had filed a civil suit against WSI (the ND State WC fund) seeking to get back pay, (Long was fired by the agency Blunt led) but lost; the jury found he did not qualify for whistleblower status and thus was not protected from dismissal
Even more telling, during the course of the discovery process for his trial, it became clear that Long and his attorney both communicated with Cynthia Feland, (the prosecutor in the Blunt case) yet not one of these statements/communications was ever acknowledged or provided to Blunt during discovery.
This withholding goes to the heart of the issue I (and others) have been pounding on for over a year; Long in his email was requesting some type of special assistance or consideration from Feland due to his part in presenting allegations against Blunt, yet Feland withheld exculpatory evidence from Blunt, evidence that would have proved the main charge against him was without merit.
Sources indicate Cynthia Feland’s ethics trial is on schedule and word is things are not looking good for her. The ethics trial relates to her purposely withholding evidence from Blunt.
Meanwhile, back over at WSI, things are progressing about as well as one would expect in an organization led by a person with absolutely no qualifications for the job. That’s not to say there aren’t a number of quite competent and highly effective people at WSI, but they are a bit…hamstrung by the current leadership.
To wit – the ongoing effort to implement a new IT platform at the ND state work comp fund continues to proceed – over time and over budget, despite Executive Director Bryan Klipfel’s strenuous efforts. (note Klipfel’s still listed as the Superintendent of the North Dakota State Police). In fairness, Klipfel had zero experience in workers comp, and less in managing complex IT projects before he was appointed ED at WSI.
Then again, Klipfel has been in the job for a couple years; the outside consultants working the project are, by all accounts, extremely capable; and there was a clear workplan and timeline in place – and in progress – when Klipfel walked into the executive suite.
It is interesting to note that in Klipfel’s recent report to the ND Legislature on WSI’s 2010 performance, many of the ‘positives’ listed by Klipfel were the result of efforts initiated, or significantly enhanced, by Blunt – Klipfel’s predecessor.
Some may think I’m being too harsh on Mr Klipfel. As I’ve said before, Klipfel may, or may not, be a highly motivated, diligent, and hard-working guy. He walked into a tough situation – but he did so of his own volition. No one forced him into the job – a job for which he was completely unqualified. Now, the taxpayer and employers of ND are suffering the consequences.
One has to wonder what Klipfel would have thought if roles were reversed, and the former Executive Director of the ND state WC fund had been installed as Superintendent of the ND State Police.

What part of ‘must disclose’ do you not understand?

That’s the question North Dakota prosecutor Cynthia Feland should be asked by Judge Bruce Romanick if and when she appears in front of him to discuss Sandy Blunt’s request for a new trial.
The tortured history of Feland’s prosecution of former North Dakota state fund CEO Sandy Blunt is entering a new phase, as Feland will shortly have to respond to a State inquiry into her conduct during the trial, conduct which may well have included a failure to provide the defense with exculpatory evidence.
This isn’t a routine or common issue, despite what Feland says. In fact, it is quite rare for a prosecutor to be the subject of this type of inquiry, and once it gets to this stage, it is highly likely Feland will face disciplinary action by the State Supreme Court.
That’s one repercussion for Feland.
Another may be equally harsh. As anyone who’s watched any legal show on TV knows, the prosector must give all its evidence to the defense. Otherwise the defense has no idea what it is being charged with. This is absolutely basic to the US legal system, a core principal that is fundamental to our system of justice.
Blunt’s attorney has filed a request for a new trial or dismissal of Blunt’s conviction on charges brought against him by Feland. As I’ve discussed here repeatedly, the fact that these charges led to a court case in and of itself is incredible; Blunt’s felony conviction for authorizing gift cards, trinkets, and food for employee meetings and refusing to require a terminated worker to repay moving expense is beyond comprehension.
Nonetheless, that’s what happened. So here’s what’s new.
According to the article in the Grand Forks Herald, “Prosecutors did not turn over copies of a Bureau of Criminal Investigation agent’s interviews with four Workforce Safety and Insurance executives and a state auditor, Blunt attorney Mike Hoffman said in a court filing. Hoffman said he had requested copies of all law enforcement interviews in the case…
Prosecutors also said Blunt allowed a senior WSI executive, Dave Spencer, to keep almost $8,000 in moving expenses that he should have repaid, and to exhaust his sick leave when he was not ill, a benefit worth about $7,000.
Spencer’s employment agreement said he would have to repay some of his moving expenses if he resigned within two years; he left WSI in September 2006 after working there for about 19 months.
Hoffman said a Bureau of Criminal Investigation interview with the auditor, Jason Wahl, that was not disclosed to him[emphasis added] quoted the auditor as saying Spencer’s repayment of the money was a “nonissue” because Blunt forced Spencer out of his job. That would have undercut prosecutors’ arguments that the money was an illegal benefit to Spencer, Hoffman said. (according to North Dakota state policy, “In the event of a voluntary resignation, you will be responsible to repay the relocation reimbursement according to the following schedule: Before 1 Year 100%, Between 1 and 2 Years 50%, After 2 Years 0%.”; Spencer’s termination was not voluntary, thus Wahl’s memo proved there was no crime.)
Feland’s argument that the prosecution file was open to Hoffman does not absolve prosecutors of their obligation to turn over relevant material to the defense, Hoffman contended.
“An ‘open file’ policy does not abrogate or dilute the requirement that prosecutors disclose evidence” that the defense requests, Hoffman said. [emphasis added]
Not even in North Dakota.
By the way, I asked Feland repeatedly if she had provided this information to Hoffman or Blunt; she never answered the question.
Now, she’ll have to.
I can’t wait.

If this could happen to him, it could happen to you

Sandy Blunt was the victim of prosecutorial misconduct on the part of a North Dakota state prosecutor, accused and convicted of ‘crimes’ that the prosecutor knew – in advance – were not crimes.
That’s the conclusion of an article authored by Peter Rousmaniere in today’s Risk and Insurance magazine.
Here’s an excerpt from Rousmaniere’s article:

In late 2006, state prosecutor Cynthia Feland began to investigate Blunt. In April 2007, she charged him with criminal misapplication of entrusted property. Virtually all of the evidence was trivial, such as the $320 the fund spent on lunches at an employee summit and others sums for gift certificates, flowers and small employee bonuses.
Blunt was also charged with misusing an employee’s license plate number in trying to identify who had leaked WSI’s payroll data to reporters.
Blunt, no stranger to public bureaucracies, responded that this spending was normal even for public enterprises and consistent with prior WSI practices. He also said that neither he nor his advisors knew the expenses were illegal.
In August 2007 a district court threw the case out as lacking merit. The prosecutor won a reversal from the North Dakota Supreme Court. In December 2007, the state fund board, under political pressure, terminated Blunt.
Blunt’s criminal trial took place in December 2008. Feland, lacking a respectable case, tarted up the criminal count with three more heavier-looking allegations, one of which the judge threw one out (claiming that Blunt had improperly awarded a grant to a volunteer firefighter association).
The two remaining new charges dealt with Blunt’s handling of an employee he had recruited, then forced out. Supposedly, Blunt had allowed the departing employee to earn his unused sick leave and also did not seek repayment of relocation expenses incurred when the person came onboard.
After Blunt was convicted, it came to light that neither the prosecutor nor the state auditor’s office had disclosed in discovery or in court testimony a state auditor’s memo that exonerated Blunt of error relating to the forced-out employee. [emphasis added]”

You read that correctly. Blunt was not only convicted on the basis of charges that the prosecutor knew were not criminal, but the prosecutor failed to provide that information to Blunt before the trial, a clear violation of the law.
Blunt’s case is currently on appeal, and he is waiting to hear on a decision from the North Dakota Supreme Court. If and when, the Court does the right thing and throws out his conviction, Blunt should sue the prosecutor and her accomplices for every dime they have and ever will have. Their behavior was that egregious.
What the state of North Dakota has done to Sandy Blunt is reprehensible.
What does this mean for you?
If this could happen to a person as above-board and completely honest as Sandy Blunt, it could happen to you.

Who’s the crook?

Few things I’ve encountered in my twenty-five-plus years in the insurance business are as outrageous as the prosecution of Sandy Blunt, the former head of the North Dakota work comp fund.
I’ve posted on this case several times; what originally caught my attention was the announcement that Bryan Klipfel, a former State Trooper had been named the head of the ND work comp fund.
According to a local paper in ND, when asked about his qualifications, Klipfel said “I’m going to work with Bruce (Furness) for a couple of weeks, and I’ll just have to learn some of that information as time goes on…My strong points are that I have leadership ability, and I understand human resources, how to deal with people. And I think that’s the big part (of the job) right now.”
That got me thinking – “He’s going to learn on the job? While getting mentoring for a ‘couple of weeks”? In a business that is incredibly complex? At a time when investments and reserving practices are critically important? And his qualifications are his understanding of human resources and leadership ability?” – with the result that I dug deep into the story, only to find out what can only be characterized as a witch hunt, conducted for unknown reasons by a prosecutor’s office that went way beyond what could be construed appropriate behavior.
The deeper I dug, the stinkier it got. Blunt was convicted of felony charges, which could only be brought because the prosecutor ‘rolled up’ several smaller charges related to gifts for workers (trinkets, food for parties, etc) and his authorization of sick leave. In fact there aren’t any charges that Blunt took money himself.
At the time, I thought ‘Ok, so Blunt made a few bad decisions and/or didn’t follow all the rules by the book. But a felony conviction for a sick leave authorization and some inexpensive ‘gifts’?’ Seemed wildly excessive – at any other big organization – public or private – this wouldn’t merit anything more than a reproachful email from the corporate compliance officer/legal counsel.
Turns out it was way more than ‘wildly excessive’; the Blunt conviction was the result of egregious prosecutorial misconduct.
The prosecutor didn’t give Blunt’s attorney exculpatory evidence – evidence that would have proven that the sick leave charge was insignificant – it wasn’t even a concern to state auditors who had gone thru the state fund’s books with a fine-toothed comb. More importantly, the prosecutor didn’t give the memo from the state auditor pertaining to this issue to Blunt’s attorney.
Anyone who’s watched even a little TV knows that prosecutors MUST give all evidence to the defense. Anyone except Cynthia Freland, the assistant state’s attorney who tried the case.

I have no idea what in the hell is going on up in North Dakota, but I do know this. Sandy Blunt is a decent, honest, very capable guy who has been absolutely screwed, apparently in no small part by a prosecutor who broke the law.

Blunt is currently appealing the case before the state supreme court, primarily on the basis of the prosecutor’s ‘roll-up’ of charges. His contention appears to be because one of the charges was thrown out, the jury should have been allowed to consider each of the other charges independently, which not coincidentally may well have resulted in acquittal as the remaining alleged offenses may not have met the standard for a felony conviction.
If there’s any justice in this country, Blunt will be acquitted and Freland fired and investigated for possible commission of a crime. Regardless, Blunt’s reputation will be forever tarnished with his professional life ruined due to some bizarre personal vendetta on the part of an at-least incompetent and possibly criminal state prosecutor.
Disclosure – I’ve come to know Sandy pretty well. I called him to hear his side of the story earlier this year. He is a very smart, humble, positive gentleman who is a consummate professional. Sandy and I have worked together on a couple projects, and I have been very impressed. Sandy’s performance at the ND Fund speaks for itself – and I can – and will – put my personal reputation on the line for him.
It’s a no-brainer.