The state Senate may not wind up paying a law firm for all the work it performed on lawmakers’ investigation into the mistaken early release of prisoners.
OLYMPIA — During the GOP-led legislative committee hearings into the state’s mistaken early release of prisoners, lawmakers have often encountered Seattle attorney Mark Bartlett.
But at last week’s hearing, Bartlett, who was hired by the Senate to help with its probe, was absent. After the hearing, Sen. Mike Padden, R-Spokane Valley, said it boiled down to money.
“I told him … it would make good sense to not keep, you know, having additional expenses,” said Padden, chair of the committee and one of two Republican senators leading the legislative investigation.
Documents obtained by The Seattle Times show that by the time a Senate committee authorized a second payment for Davis Wright Tremaine, the firm already had run up costs to that amount.
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The firm continued to work beyond the sum authorized by the Senate on Feb 23 of $125,000.
Now, the Senate may not pay Bartlett and the firm for the work it did after that.
When asked how much work Davis Wright Tremaine has conducted since then and whether the firm expected to be paid, Bartlett declined to comment. “You can talk to the Senate,” he said.
Padden said that according to the Senate’s contract with the firm, any work done beyond what the Senate authorized on Feb. 23 was done at the firm’s own risk.
“At this point, I think all they’re entitled … is for what they billed us for,” Padden said. “He obviously incurred some additional expenses,” he added, referring to Bartlett. “But that was the risk they took.”
The development puts GOP lawmakers in the position of ponying up more money from the Senate’s budget to pay the firm, or possibly making it harder to produce the investigation’s report.
Legislative staff may wind up stepping in to prepare a report of Davis Wright Tremaine’s work — which included a review of more than 70,000 pages of documents and interviews with more than two dozen witnesses.
“We’ll do the best we can,” Padden said.
The probe, led by Padden and Sen. Steve O’Ban, R-University Place, is intended as an independent review of the prison-sentence calculation problem that allowed some of the system’s most violent prisoners to be freed earlybetween 2002 and 2015.
Though the software-programming error was identified in 2012, the state Department of Corrections (DOC) didn’t begin manually calculating prison sentences to stop the early releases from continuing.
And a programming fix requested late in 2012 to solve the problem was delayed 16 times — and not made until earlier this year.
At the firm’s risk
On Feb. 23, the Senate Facilities and Operations Committee authorized $75,000 more to pay Davis Wright Tremaine to help with the investigation, bringing the total amount for the firm’s work to $125,000.
That day, Padden told lawmakers on the committee, which oversees Senate expenses incurred during legislative sessions, “I don’t know if we would use all that; I tend to doubt it.”
But Davis Wright Tremaine by Feb. 22 had already tallied $124,968.50 in billings, according to an invoice obtained by The Seattle Times.
The invoice, sent by Bartlett to the Senate on March 8, details the work he and four others performed up to Feb. 22.
Among other things, the work included collecting and analyzing documents, interviewing witnesses, preparing reports and preparing for Senate hearings.
Davis Wright Tremaine continued its work after Feb. 22, helping to interview and prepare statements for several more witnesses, including former DOC Secretary Dan Pacholke.
Bartlett and another investigator interviewed Pacholke on Feb. 24, according to a summary of the interview.
The firm also prepared a report dated Feb. 25 analyzing the sentence-calculating error. And Bartlett appeared seated alongside lawmakers at two of the committee’s public hearings — on Feb. 25 and Feb. 29.
In an email Friday, Hunter Goodman, secretary of the Senate, wrote that he hasn’t received any new invoices from Davis Wright Tremaine.
In the Feb. 23 meeting that approved the second payment for Davis Wright Tremaine, Goodman told lawmakers that he had emphasized to Bartlett that any work done beyond that authorization would be at the firm’s own risk.
Sen. Jamie Pedersen, D-Seattle, estimated that the firm’s additional work could amount to between $75,000 and $125,000.
“I think it could easily, based on this rate of accumulating bills, it could easily be $200,000 to $250,000 [total] at this point,” said Pedersen, an attorney and the highest-ranking Democrat on the Senate Law and Justice Committee.
Senate report to come
An investigation commissioned by the office of Gov. Jay Inslee is estimated to have cost $140,000, according to Jaime Smith, spokeswoman for the governor.
That investigation, begun in late December by two former federal prosecutors with the Seattle firm Yarmuth-Wilsdon, produced a report in February. It concluded that flawed advice, ignored emails and a lack of communication allowed the sentence-calculating problem to continue for years after its discovery in December 2012.
The report also named several state employees who it said shared blame for the failures. After its release, Inslee announced the resignation of a former DOC employee from his current state job and the demotions of two others.
Those came after three people resigned in February, including Pacholke, who at the time called out Padden for “blaming and shaming” corrections staff and using the early-release error to wage political warfare.
The governor’s investigation has finished, Smith wrote in an email, but its investigators are available if additional help is needed.
Padden and O’Ban launched their investigation in January, saying the governor’s investigation couldn’t be considered independent.
On Jan. 19, Republicans on the Senate Facilities and Operations Committee approved a vote along party lines to issue subpoenas to Inslee’s office and DOC for records related to the problem.
On Jan. 28, the committee — again on a party-line vote, with Democrats dissenting — authorized $50,000 to hire Bartlett and Davis Wright Tremaine to help with the probe.
The Senate’s investigation has included public hearings where DOC staff and officials have spoken about the issue and failures to fix it. It has also focused on former Corrections Secretary Bernie Warner, who held DOC’s top job between July 2011 and October 2015, and criticized the governor’s report findings.
Padden said he expects the Senate investigation to produce its own report in April or early May.
DOC’s hunt for records
Meanwhile, DOC’s new acting secretary, Dick Morgan, sent Padden a letter noting the strain that the Senate’s subpoena is causing the agency.
DOC staff have spent 2,178 hours compiling 71,521 pages of records in response to the Senate’s subpoena, Morgan told Padden in a March 16 letter.
In all, the agency has reviewed nearly 1.2 million documents, according to the letter.
As its search continues, the agency is finding far fewer related records and “respectfully requests that the Senate consider whether further searching is necessary and whether the Department’s response may be deemed sufficient and complete,” Morgan wrote.
Padden said Friday said that he was still reviewing Morgan’s request.
“Even with the law of diminishing returns, there could be some valuable information there,” Padden said.
A recent DOC review of more than 1,500 potentially affected inmates freed since December 2011 showed three-quarters of them had been mistakenly released early.
If that projection holds to cases going back to 2002, about 2,800 offenders might have been freed before their correct release dates.