Meg Scott Phipps

First, let me say up front that my interactions with Meg Scott Phipps were very limited. I have never known her personally outside of legal proceedings from about 7 years ago.

Meg Scott Phipps was released from Federal Prison today. She was the former NC Commissioner of Agriculture, a position elected statewide. She was convicted on Federal charges stemming from illegal campaign contributions, doctoring checks, etc. Her replacement was Britt Cobb, appointed by the Governor. Britt ran for Ag Commissioner in the next election but was defeated by Steve Troxler.

Why blog about this?

Meg Scott Phipps was an Administrative Law Judge before she resigned to run for Agriculture Commissioner. ALJs hear contested cases based upon regulatory rules (North Carolina Administrative Law).

I used to work with the NC Department of Environment and Natural Resources. I regulated, and issued permits for, Landfills. Yep – the place where your garbage goes.

Applying for, and receiving, a permit to construct or expand a landfill is a very complex, highly technical process. Landfill Permits are also very much in the public eye and can be emotionally charged for people living near a proposed site. My anecdotal guess is that 25% of the MSW Landfill Permits we (DENR) issued were subject to Petitions for Contested Case before an Administrative Law Judge. In essence – a civil lawsuit to overturn the issuance of a Permit.

Meg Scott Phipps’ very last case was the South Wake Landfill Permit (aka The Holly Springs Landfill) of which I was the Permit project manager and therefore the respondent of the petition (i.e. defendant in the lawsuit).

ALJ / Regulatory cases are usually very dry and boring. The cases are supposed to be decided strictly (by law) on if the rules / regulations / procedures were followed. They are NOT (by law) to be decided by ‘right or wrong’ – ‘fair or unfair’ - just if the rules were properly followed and applied by the regulatory agency.

The Holly Springs contest case was the first landfill hearing before Meg Scott Phipps and also her very last case. Having been through a number of contested cases, I was surprised by the relaxed way that MSP conducted her court – or rather – hearings. Forgetting to swear in a witness, no recording device available when a court reporter hadn’t been lined up, testimony that seemed to veer far and wide from the regulatory issues at hand. Actually, just kind of sloppy. I’d never experienced that before. (*See Notes below).

Her last day as ALJ was a Friday, the day she issued her ruling on this, her last case. She said she had been awake all night thinking about the case and finally decided to rule for the petitioners (plaintiffs). As she put it – no one was really right or wrong – everybody did their jobs right and in good faith. She just felt that “someone is [was] going to get screwed and I don’t [she didn’t] want it to be the people in Holly Springs”.

It seemed to me that facts and law were kind of pushed aside. She based her decision on her heart – not her head. Upon subsequent appeals, the Permit was ruled to stand. Which was the correct outcome. After all, we (DENR), and I specifically, would never issue a permit unless all the rules had been met. Why issue a permit incorrectly since it would be overturned at some point? Ultimately the Permit was upheld (Superior and Appellate Court) – my record at DENR was 100%.

MSP went on the win the Ag Comm position by a very close vote over Steve Troxler. Soon after, the scandal broke and MSP went to prison (with Martha Stewart BTW).

Britt Cobb was appointed and subsequently lost the next election to Steve Troxler.

Britt was then appointed Secretary of the Department of Administration (where I now work). He appointed Spiros Fleggas as his Chief Deputy Secretary. Prior to that, Spiros was the Director of the State Construction Office, where I work.

Personal Opinions

Britt Cobb is a very nice gentleman. He’s a pleasure to talk to and to work for. Spiros is an excellent life long State employee and serves Britt, DOA and tax payers quite well.

Meg seemed to me to be a really nice person but someone who forgot that you have to follow the rules. I don’t believe she was ever out for personal financial gain. Her shenanigans in the campaign fraud never were about personal enrichment – she just seemed to be in a political game and was in way above her head. Kind of a, sure, I’ll take a campaign donation from you. Oh, too much, over the limits? Well, we’ll just change the checks so they’ll be all right. That kind of thing.

Her decision in the Holly Springs case was long on heart but short on facts.

Another example - The very first motion hearing in that case was scheduled for a Tuesday. 3 days before, on Saturday, my mother was killed in a car accident. I was prepared to fly back for the hearing but when Meg found out from my lawyers what had happened, Meg immediately rescheduled the hearing so I could devote all my attention to family matters. Remember, we’re talking a high profile case, at least 6 lawyers (by my count), TV coverage, lots of public interest (at least 50 citizens by my count attended that first hearing when it was held) mounds of filings, motions and paperwork – all postponed at the last minute for one person with a family emergency.

Like I said – It seemed to me that MSP made decisions based on her heart.

I really wish Meg the best of luck. She’s made mistakes but she deserves a second chance. I hope things work out for her. She’s a nice person.

House Guests

Went by my nephew and niece’s during lunch break today to pick up a ladder. The movers were packing up and the house should be ready for showing by the weekend.

Since all the furniture will be in storage, they will be staying at my house. Don’t know for how long. Actually, I didn’t even know they were staying with me until I was getting ready to leave with the ladder; MIH pointed to 3 packed suitcases and told me to please put them in the truck as well.

LOL

I suspect they will also be spending some time with the in-laws in NoVa as well. It’s a big move back to Tokyo and GAH and CAH will want to spend as much time with their granddaughter as possible.

*Notes

This case involved a lot of firsts for me.

There was one important regulatory issue that I had questions about which I expected to be cleared up through this legal action. Instead, the petitioning lawyers took the “throw everything including the kitchen sink” approach. All of which were erroneous and mostly just plain wrong. By the time the one important question was reached – the petitioner’s credibility was already shot and the important issue wasn’t fully argued.

The petitioner’s case was finally taken on by a public advocacy group at the NCCU Law School. I was actually looking forward to some good interaction with what I expected to be top notch regulatory and public policy lawyers. Nope – these guys were no better than the local real estate attorneys who usually took these cases on as a favor to someone who lived next to the proposed landfill. Actually, in a lot of ways, these guys were worse. I sometimes wondered if they had ever even argued a case in actual court before.

Oh, and then there was one of the ‘expert' witnesses.

LOL

University edumakated PhD type feller. Who was dismissed from the stand as having no real expertise in the case at hand. These people just come crawling out of the woodwork sometimes. I actually enjoyed watching this particular narcissist self-righteous ass get humiliated by my lawyers and then dismissed by the judge. Afterwards, and I’m paraphrasing here, I overheard him say: “I’ve testified in Federal Court many times. I’ve never been treated like this before”. Boo hoo. Where's my violin?

The case eventually also involved allegations of ‘environmental racism’ and had legal filings submitted to the EPA’s Civil Rights Office. Wait a minute – you’re saying I made a permit decision based on race!?! No no – not you Bill. We know you’re a decent man and wouldn’t do that – it’s just that DENR has an institutional pattern and history of . . . blah blah blah. Wait a minute; stop right there. I did the work on this permit – you’re taking about me god dammit! That’s the only time during that case where I took some of the posturing personally. It still makes me hot remembering it. Dismissed without merit.

In one of the Superior Court proceedings – an attorney (but not representing the petitioners) was in the gallery watching the proceedings. During a critical part of that day’s arguments he decided he could shed some light on the subject – stood up in the audience and addressed the court (Judge Donald Stephens).

Now, what I just said may not sound like much – but believe me – That Shit Ain't Done!

Judge Stephens let the poor young attorney guy have all the rope he could handle – then lowered the boom and verbally strung him up right there in the court room. It was the best show the regular courtroom observers had seen in a long time. Even though the attorney was on the side suing me – I actually felt sorry for him and consoled him later after court. He was damn lucky he didn’t end up in County lock up for the night for contempt of court.

Over time I came to know and respect this guy. He later became the Town Attorney for Holly Springs. He’s a fine and decent man.

And – I have no proof – but I believe (notice I said I believe, not I know) with all my heart that one person totally / repeatedly lied – on the stand – under oath. Not about some trivial small stuff – he lied big time about big time stuff. I’d never ever seen that happen before. And not since.

Oh, and then there was the point where I ignored a Federal Judge’s order to appear for a deposition. Never did that before. It was part of playing hard ball with the petitioners when they were dragging the case out for about the 3rd or 4th year. It was kind of a “I double dare ya” to the petitioners - to see if they’d actually be stupid enough to ask for a bench warrant for my arrest (and the fact they’d have to ‘show cause’ thus revealing all their lapses and screw ups in not following court orders and rules to that point).

Long story short:

If Meg had just made the right decision based upon the facts in the very beginning – a long drawn out and costly case could have been averted.

Sometimes these cases can become wild and convoluted. This was just one case out of many I've been involved with. I’m a proponent of tort reform. Trust me – I’ve been there.