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The House Special Investigation Committee hears testimony from State Auditor and Inspector Gary Jones on Thursday, Dec. 14, 2017. (William W. Savage III)

The political investigation into financial trouble at the Oklahoma State Department of Health has resulted in the state of Oklahoma functionally suing its own House of Representatives.

Late Wednesday, the OSDH filed a “cause of action” to modify a subpoena issued by the House Special Investigation Committee that requires testimony and document provision from the agency’s chief financial officer, Mike Romero.

Chairman Josh Cockroft (R-Wanette) subpoenaed Romero on Tuesday, Jan. 2, to appear before the House committee at 9:30 a.m. today. The Health Department’s court filing argues that the House of Representatives saddled the agency and Romero with too onerous of a task in providing documents with less than 48 hours notice.

The filing concludes its factual background by noting:

Production of said documentation necessarily involves OSDH and Mr. Romero gathering various types of data from a 1978 COBOL financial accounting system, which will literally involve the production of well over one thousand documents drawn from across a multiplicity of financial accounts and programs. This cannot be accomplished in the time frame demanded by the House.

The OSDH modification application argues that the House committee’s subpoena power is authorized under a statute that also requires discovery rules to apply as they would in district court.

Hearing cancelled, motion questioned

The House of Representatives sent a media advisory at 7:17 Thursday morning canceling its scheduled hearing.

The meeting of the House Special Investigation Committee that was scheduled for this morning at 9:30 a.m. has been cancelled. Mike Romero, current chief financial officer at the Oklahoma Department of Health (sic) was scheduled to testify. The meeting will be rescheduled for a later date.

In an interview with NonDoc, Cockroft said he was concerned by a statement toward the end of OSDH’s filing, which said the agency asked for additional time to comply with the subpoena but was “denied.”

“The first time I heard from the State Department of Health was last night at 4:36 p.m. telling me they were filing this injunction,” Cockroft said. “It does concern me that we’re making claims in a court of law that cannot be backed up by fact. We’ve been promised that the culture of deceit has changed at the State Department of Health, but for them to say they reached out to us and a request was denied — which is false — is concerning.”

OSDH general counsel Julie Ezell sent NonDoc a statement Thursday morning about the legal filing:

Oklahoma State Department of Health Chief Financial Officer Mike Romero was served a subpoena yesterday, January 2, 2018, by the House Special Investigative Committee looking into the previous financial mismanagement of the Department.  The subpoena required Mr. Romero to appear less than two (2) days later on January 4, 2018 to testify and demanded that he provide any and all documentation relating to mismanagement and abuse of funds at the Department.  The documentation sought under the subpoena numbers in the thousands of pages.  While Mr. Romero and the OSDH want to be as helpful and transparent as possible to the Investigative Committee, the less than two (2) day timeframe in which to comply does not allow Mr. Romero nor the Department adequate time to gather all of the documents and prepare.  Based upon the advice of legal counsel, an Application for Order Modifying Legislative Subpoena has been filed in Oklahoma County District Court to seek more time for Mr. Romero to properly respond to the subpoena.

‘He has information readily available’

The court filing appears to be the tip of the iceberg in the ongoing drama with the House Special Investigation Committee. Multiple people speaking on the condition of anonymity have told NonDoc that growing fear exists that the House committee is complicating the state’s official criminal investigation into OSDH mismanagement.

“Any time we have an investigation that has this wide of a scope, and then you’ve got other investigations on top of ours, there’s going to be concern and there’s going to be caution for all entities to tread carefully,” Cockroft said. “We believe the Constitution is very clear that we have the constitutional grounds to conduct this investigation, and we’re going to continue to do that.

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“What is going on outside of our investigation is going to continue to happen.”

Beyond concerns that the House committee is complicating the state’s grand jury investigation, parties close to the situation are also worried about how Romero has been characterized in the committee investigation.

“Everybody believes this is one of the good guys,” said one person familiar with discussions between House leadership and OSDH. “There’s a series of bad guys, but Romero is not one of them. So we need to keep him. We need talent in state government.”

Cockroft said he has not perceived any frustration from Romero.

“I haven’t gotten any indication of any of that,” Cockroft said. “I do know that he has obviously put forth the information to the agency in an attitude of integrity, wanting to make sure that taxpayer dollars were used right and certain processes were followed.”

But Cockroft said he asked OSDH leaders Wednesday evening whether Romero would still testify Thursday if the document provision element were removed. Cockroft said he was told “no.”

“He has information readily available that he is willing to present and testify,” Cockroft said. “We thought [two days] was an ample amount of time (to prepare).”

The House of Representatives committee held its initial hearings Dec. 11, pressing acting Commissioner of Health Preston Doerflinger and two other state bureaucrats for a timeline of when they knew of OSDH financial troubles. The committee later heard from State Auditor and Inspector Gary Jones who challenged Doerflinger’s timeline of events. Most recently, it heard from Deborah Nichols, former chief operating officer at OSDH.

Cockroft said the committee will soon announce the expansion of its investigation to include examinations of two other state agencies. In the meantime, he said the OSDH investigation will continue.

“We’re not going to cry over spilt milk,” he said.

After the publication of this story, Doerflinger released a statement responding to Cockroft’s claim that the agency had been denied the chance to have Romero testify without presenting the documents today.

Doerflinger’s comment in full:

The newest accusation from the chair of the House of Representatives Investigative Committee again takes the path of political theatrics versus having legal understanding that issuing a subpoena for thousands of pages of documents 48 hours in advance is not appropriate under the law. The agency simply made an application to modify the original subpoena to allow additional time to produce the requested information. Multiple attempts have been made to contact the chair throughout this investigation, including yesterday. Requests were also made to the House Majority Floor Leader to modify the subpoena for much of the day yesterday. Regardless of this latest attack on our leadership, the focus of this committee and investigation must remain on solutions that protect taxpayer dollars and not jeopardize the efforts of the Attorney General, FBI and the HHS Office of Inspector General to hold those responsible for this mismanagement accountable.

OSDH filing

(Editor’s note: This story was updated at 4 p.m. Thursday, Jan. 4, to include Doerflinger’s statement.)