LESLIE RUTLEDGE: Judge orders release of records indicating a spotty record as attorney for children in state custody. Brian Chilson

Circuit Judge Tim Fox today ordered the state Department of Human Services to turn over personnel records of Attorney General Leslie Rutledge by 5 p.m. today and said he was “concerned” about how DHS had handled the requests for records of her work in 2006-07.

Rutledge yesterday voluntarily released records DHS had refused to release in both 2014 and this year. They reflect a lackluster record as attorney (graded at a C level in a department not known for the quality of its work). Records showed she’d been called down for poor job performance (including being late to a trial, mishandling a witness and mishandling adoption cases) and that she’d quit without notice to join the Mike Huckabee campaign for president despite a full allotment of cases involving foster children and other children in need. Her supervisor subsequently called the separation a termination, said she should not be rehired and said, in response to a 2009 filing by Rutledge for unemployment benefits, that she’d been guilty of gross misconduct. Rutledge was seeking benefits after leaving a job in Washington and they checked her past employment history in the course of setting a benefit. She was defensive Wednesday in explaining why she sought benefits (as well she might be given her opposition to Obamacare and other such “welfare” and given her party’s reduction of unemployment benefits in Arkansas.) Among her comments in seeking govenrment help to get by at a tough time:

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I think I was paying at that time, a rent in DC, I made light of this earlier, but it was like $1650 month rent for a one bedroom one bath apartment in Washington DC. So that is a challenge, to make that kind of rent payment and to live off anything other than Ramen noodles. Which I’m a big fan of, I don’t know if anybody else is. I’m a big fan of the Ramen noodle. Ten cents, you get a full meal — now, you might be completely, uh, swollen the next day because of the sodium, but they’re delicious at the time.

In light of the termination notation, Fox said the personnel records were clearly open under state law. Rutledge has insisted she quit voluntarily and said the decision sets a dangerous precedent. Fox wrote:

The court is extremely concerned by the actions taken, or those failed to be taken, by the Department of Human Services relating to Ms. Rutledge’s official personnel file. Ms. Rutledge’s termination from employment with DHS occurred in 2007. The documents the court is ordering to be released relate to several instances in 2006-2007 in which Ms. Rutledge was cautioned and/or disciplined relating to her responsibilities as a DHS attorney concerning cases involving the welfare of foster children. The documents indicate Ms. Rutledge was counseled about the matters. There is absolutely no indication of any further problems or issues of any nature in Ms. Rutledge’s performance. There are no other indicia of other disciplinary action of any kind or nature in Ms. Rutledge’s personnel file. No further incidents. No procedural escalation of potential sanctions in accordance with DHS policy. Nothing. The only additional record is a form from January of 2009. The form document is the response of the defendant DHS to a filing by Ms. Rutledge for the payment of unemployment benefits. The form states she had been terminated for “gross misconduct.”

Testimony was presented that DHS had received a similar FOIA request in 2014 and that DHS knew about the subject eight pages. From the record presented before the court, DHS did absolutely nothing, either in 20l4 or at any point in time subsequent to 2014, to make an official correction, if an official correction was in fact warranted, to Ms. Rutledge’s personnel record to show that she resigned as opposed to being terminated for “gross misconduct.” At the hearing DHS orally took the position, through both argument and testimony, that its written records in Ms. Rutledge’s personnel file were false, and that Ms. Rutledge was not terminated for gross misconduct.

This court has no opinion and makes no finding or conclusion as to whether Ms. Rutledge resigned or was terminated in2007.

This matter, however, is an action pursuant to the FOIA. The request was for the disclosure of official records. The official records indicate Ms. Rutledge was terminated for gross misconduct.

In the Stilley case, supra, the Arkansas Supreme Court stated that, “It follows that when the public’s interest is substantial, it will usually outweigh any individual privacy interests and any disclosure will be favored.”

In the Young case, supra, the Arkansas Supreme Court stated that relevant public interests include whether release of the documents would “shed light on an agency’s performance of its statutory duties” and whether release would, “otherwise let citizens know what their government is up to.”

Fox said DHS had properly withheld Social Security information and made other proper redactions of private information. But he said withholding personnel records was a violation of the law and disclosure was in the public interest. 

He observed:

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It has been more than a month and a half since the FOIA request was submitted to the defendant. The Arkansas General Assembly has established an expedited procedure for the hearing and resolution of FOIA disputes. Accordingly, the defendant is ordered to email the subject documents to counsel for the plaintiff by 5:00 p.m. today.

Fox notes there are some additional documents that neither DHS nor Rutledge has released.

The suit was filed for Reed Brewer, a Democratic Party employee, by Chris Burks. In a news release, Burks commented:

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“Judge Fox’s order details the flawed and incomplete process DHS conducted in responding to Mr. Brewer’s FOIA request,” Chris Burks, lawyer for the plaintiff Reed Brewer. “The order also stated that additional documents exist but have yet to be released. If DHS or Attorney General Rutledge process these documents, they should be released to the public immediately.”

I’m seeking comment from Rutledge and DHS, defendant in the suit. Rutledge has said she hopes the matter will be appealed.

DHS itself released the documents Rutledge had released yesterday.  Spokesman Amy Webb said the agency was “still reviewing options” on whether to appeal. As to any implicit criticism in Fox’s order, Webb said as the agency had said yesterday that it had failed to notify Rutledge of changes in her personnel file in 2007 and should have done so.

Rutledge’s Democratic opponent, Mike Lee, issued a statement later:

There is no excuse for failing our state’s children, particularly children who have no one but the state’s attorney to represent them. Yesterday, Leslie Rutledge released her personnel file form her time as an attorney at the Department of Human Services.

“The release of these files confirms that Leslie Rutledge failed to represent the most vulnerable of our children. These files, released under a judge’s order, document the repeated shortcoming of an attorney who was in over her head.” says Mike Lee. “I say to the voters of Arkansas, ‘do not re-hire’ Leslie Rutledge. I ask Arkansans to compare my record to hers, which has a ‘gross misconduct’ red flag. I take responsibility for my actions and ask Leslie Rutledge do the same.”

Rutledge campaign spokesman Joh Mesker responded:

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“The Democrats are desperate to be relevant and disappointed that the Court’s order affirms that DHS acknowledged that records in the Attorney General’s personnel file were false and that she resigned and was not terminated.

“As the Attorney General said in a two-hour media availability, at which she fully disclosed her employment files at her choosing, she took her work advocating for foster children extremely serious just as she takes her job as the state’s chief legal officer protecting the lives of the unborn, arresting pedophiles, and holding criminals accountable.”