Did Northam, Herring willfully violate Virginia Procurement Act?

Payments to outside law firms indicate that the Attorney General Mark Herring is possibly guilty of violating the Virginia Procurement Act (VPA). Actions by Governor Northam also point to tacit knowledge, and that the Governor has conspired with the Attorney General to remove some of the limits to his financial dealings.

Going back to December of 2018, an Eastern Shore resident requested records of the Attorney General’s retaining outside counsel. One of Herring’s top aides, Rita Davis, was asked to inform Governor Northam regarding the suspicious procurement of outside council by the Attorney General. Oddly, Davis was then ‘transferred’ to the governor’s office where she holds a position with no real job description.

Later, Governor Northam “vetoes” bills that were intended to place restraints on the Attorney General’s procurement of “special outside counsel”. Those bills would have capped the contingency fees that private law firms can earn when the attorney general hires them to represent state agencies. 

The inquiry has to do with the payment of close to $2 million to the law firm of Sands Anderson. The Attorney General office is comprised of 200 assistants that work for the rate of $60 per hour—using outside council for work that could and should be done in-house costs taxpayers as much as $890 per hour. 

While Sands Anderson was contracted, there were no required newspaper ads placed, and hence no competition, which is a violation of the VPA. Also, besides ignoring the mandatory “cap” of $350, 000, this firm was paid $2,000,000.  This single source acquisition squelched competition and the legal bills were paid without oversight.  AG rules call for a limit of one outside attorney, yet there appeared to always be at least two present and sometimes three. 

The VPA is in place to ensure that there is competition for the government.  Without this competition and oversight, firms like Sands Anderson are free to charge and do whatever benefits them.

While Governor Northam apparently refuses to enforce the VPA, and even enables the AG in its violation, the taxpayer is once again being fleeced as public funds go directly to firms like Sands Anderson.

Gathering information from either the Governor or Attorney General has been frustrating as inquiries have been blocked on several instances with claims that they fall outside of Freedom of Information Act rules. FOIA was meant to create more transparency, not be leveraged in a cover-up. Efforts to gain access to documents concerning the Attorney General for the years 2016, 2017 and 2018 were rejected because they had apparently been sent to the Library of Virginia for archiving.  This appears to be another violation of state code, where “when an elected official takes office, all of the existing records must be left in the office and cannot be archived when there is no one to receive the documents.”

Efforts to gather information on $2 million for a case involving Virginia Information Technologies Agency was also denied due to being “records of the judiciary”.

Oddly, in Virginia records associated with the Judiciary are not available to FOIA. Placing travel records and bills to Sands Anderson under the purview of ‘judicial records’ seems to be a stretch.

The Attorney General’s, as well as the Governor’s tacit approval, are violations of the VA Procurement Act (VPA) and are mainly concerned with the refusal to advertise his so-called “need” for outside counsel in a newspaper or on the General Services website. Each of these VPA violations has cost the taxpayers’ money while enriching others.

The questions asked were very simple. The office of the Attorney General paid out millions to one particular law firm. Did the state advertise and solicit proposals from other firms, which is required by law, by the Virginia Procurement Act? If not, why not?

Competition in the marketplace is a bedrock principle in the Commonwealth where the rivalry between sellers (sales, profit, and market share) produces the best practicable combination of price, quality, and service.

Two hearings are scheduled for May 6, 2019.  One concerns the VA Procurement Act requirement that the Attorney General must place an ad in a newspaper (§ 2.2-4302.2.A2.) concerning each procurement of outside counsel. (GV 19000924-00). The other concerns the requirement that there must be competition by two or more offerors (§ 2.2-4302.2.A4) (GV 19000560-00).

New campaign finance records show Virginia Gov. Ralph Northam’s fundraising efforts dried up after a scandal involving blackface. First quarter reports show Northam, Lt. Gov. Justin Fairfax and Attorney General Mark Herring all struggling to raise money after a series of scandals (two women accused Fairfax of sexual assault).

All three have resisted calls to resign.

While the blackface incident may have hurt fundraising, the Governor and Attorney General may have bigger problems.