AP's Ken Kusmer Talks About Barnes & Thornburg Conflict In Representing State In Lawsuit Against IBM

The AP's Ken Kusmer is a regular reader of this blog and others and often gets his story ideas here. For example, when I first broke the conflict of interest former FSSA Secretary Mitch Roob had as a former executive with ACS in entering into the privatization agreement with IBM that included ACS as a key partner, Kusmer quickly picked it up and ran with it as a story for AP. Last weekend, I raised questions about ACS's continuing influence at FSSA with the presence of another former ACS consultant, Michael Gargano, chief of staff to Roob's successor, FSSA Secretary Ann Murphy, who recently announced she is leaving the agency to work  in government relations for Community Health Network. Gargano is also married to Ann Lathrop, another former ACS executive who also served as president of the CIB. I discussed in my post last weekend how Gargano was a leading contender to take Murphy's place, as well as the irony in ACS's hired gun lobbyist, Barnes & Thornburg, being hired by the state to represent the state's interest in a lawsuit against IBM over the termination of the IBM welfare privatization agreement that resulted in a hybrid approach which includes the participation of former IBM partner, ACS. Fellow blogger Paul Ogden posted on the details of  Barnes & Thornburg's $5.2 million legal contract in follow up to my post. Today, Ken Kusmer picks up on that legal contract and how it has watchdogs and Democrats screaming foul:

Indiana's human services agency is paying $5.25 million to a private law firm, including the brother of a key aide to Gov. Mitch Daniels, to represent the state in its fight over a canceled IBM Corp. welfare outsourcing contract.


Barnes & Thornburg of Indianapolis was hired despite several conflicts of interest arising from the fact that it also represents former IBM partners involved in the welfare deal. Bryan Corbin, a spokesman for the state attorney general's office, said in an e-mail to The Associated Press that "hiring this firm was a specific request of the Governor's Office."

Daniels' press secretary, Jane Jankowski, said the hire "made the most sense given the scope and complexity of the case."

The law firm's contract with the Family and Social Services Administration outlines its conflicts, and Barnes & Thornburg even suggests in the document that the agency consider hiring a co-counsel to handle conflict-of-interest issues as needed. The contract was obtained by the AP.

"They're very good litigators and that's why they were chosen," family and social services spokesman Marcus Barlow said of Barnes & Thornburg. Barlow said the $5.25 million is "a small fraction" less than 1 percent of the $1.3 billion in damages the agency is seeking from IBM.

Indiana House Speaker Patrick Bauer, however, called it foolish for the agency to hire outside counsel when the Indiana attorney general's office could represent it for no cost in attorneys' fees.

"To spend another $5 million is bad money after bad money, and the taxpayers are the losers," said Bauer, a Democrat from South Bend.

Daniels, a Republican, fired Armonk, N.Y.-based IBM last October from a 10-year, $1.37 billion contract to introduce call centers, document imaging and other automation to the process of applying for food stamps, Medicaid and other benefits. IBM and Indiana sued each other in state court last May.


The $5.25 million contract with Barnes & Thornburg also calls for the human services agency to pay attorneys' expenses. Barlow said the money would come out of the agency's administrative budget, which includes legal costs.

The Barnes & Thornburg team includes longtime Republican activist Peter Rusthoven at a rate of $475 per hour, John Maley at $465 and Brian Burdick at $405. Burdick is the brother of Betsy Burdick, Daniels' deputy chief of staff.

Signed by Brian Burdick and members of the Daniels administration in August, the contract covers Dec. 18, 2009 a few days after IBM's state contract ended through June 30, 2012. The case is scheduled to go to trial next September.

"This just smells to the highest heaven," said Rep. Charlie Brown, a Democrat from Gary and chairman of the General Assembly's Health Finance Commission.

Brown questioned the legality of a contract not signed until eight months after work began, but Barlow said it's normal for the state to sign contracts after a vendor has started a project.

Three pages of the 9-page contract detail Barnes & Thornburg's conflicts of interest from having represented ACS Human Services, a division of Dallas-based Affiliated Computer Services Inc.; Arbor Education and Training; and other subcontractors involved in the IBM deal. Arbor and ACS have new eight-year contracts with the state totaling $853.2 million.

The contract says Barnes & Thornburg attorneys, in representing the human services agency, expect to make claims against its other clients but will not share with the state any "potentially relevant" information gained from representing them. It said the state's case will be screened from other clients.

The state agency also should expect IBM's attorneys "will look for creative ways to exploit the fact that (the firm) represented and continues to represent" the other clients, the contract says.

Julia Vaughn, policy director for the government watchdog group Common Cause/Indiana, said the conflicts of interest were "handing IBM a potential hornet's nest to bat around."

"For a lot of different reasons it screams that Barnes & Thornburg isn't an appropriate firm to put in charge of this case. It looks like their political connections overrode common sense," Vaughn said.

Barlow, the human services agency spokesman, said "any law firm that could handle a lawsuit of this size would have conflicts."

Barnes & Thornburg spokesman Ty Gerig said the firm would not comment on the contract.

IBM spokesman Clint Roswell had no immediate comment. The company is suing the state agency for $52.8 million it claims it is owed under the contract.

Naturally, Kusmer makes no mention of the earlier reports about the controversial legal contract on the blogs. Mainstream reporters knock the blogs all the time, but rip off their reporting without attribution on a daily basis. He does add another crony tie to the mix, noting Brian Burdick, one of the attorneys who signed the contract on behalf of Barnes & Thornburg, is the brother of Gov. Daniels' chief of staff. I would add that Burdick is not a litigator. He is a bond lawyer and everyone involved knows that is the case. His involvement in the case is nothing more than sister helping brother make bigger bucks at his law firm. Here's how Burdick's bio at the firm's website describes his credentials:

Brian L. Burdick, a partner in Barnes & Thornburg LLP’s Indianapolis, Indiana office, concentrates his practice in the areas of government services and public finance. In the public finance area, he serves as special counsel to commercial and investment banks, money management firms, and registered investment advisors advising them on issues in the tax-exempt marketplace including Indiana public-fund banking and investment issues. Mr. Burdick also represents governmental entities as well as underwriters and credit providers in their various roles in public debt offerings. He serves as general counsel to the Indiana County Treasurers’ Association and the Indiana Bond Bank. His government services practice focuses primarily on representing both public and private clients before state and local regulatory bodies and administrative agencies, counseling them on public contracting and bidding, state and local government ethics laws, and financing transactions. As a registered lobbyist, he represents numerous public and private clients before the Indiana General Assembly and advises them on Indiana’s lobbying, election and campaign finance laws. Mr. Burdick was selected for inclusion in The Best Lawyers in America® 2010 in the fields of government relations law and municipal law.

Note that Burdick's bio doesn't use the word "litigation" once. Burdick once worked as a Deputy Treasurer in the State Treasurer's office, where he directed bond work to Barnes & Thornburg's Bob Grand, who hired Burdick to work for the firm in consideration for all the legal work he sent to the firm while he was at the State Treasurer's office. Will you have a follow up report on Michael Gargano and his relationship to ACS, Ken? Glad to help you out in doing your job. Well, at least you're reporting on the obvious and not ignoring it like the Indianapolis Star.