Former congressional candidate Bruce Peller (front) and lawyer Jerry Jordan leave Forsyth County Court on Monday.
A Winston-Salem dentist who made an unsuccessful bid for Congress earlier this year went to court today to try to mitigate the damage of confidential patient information allegedly released to a political consultant whom he fired a couple weeks before the primary.
Superior Court Judge Lindsay Davis ordered political consultant Chris Church to destroy all physical documents containing confidential patient information obtained from Dr. Bruce Peller’s office, to delete any electronic files and to not use the information for any purpose.
“We’re here to protect the personal information of some 10,000 of Dr. Peller’s patients,” Jessie Fontenot, the former candidate’s lawyer, told the judge. “It’s our belief and contention that this information is currently in the possession of Mr. Church. This information, as Dr. Peller has testified, includes not only names, addresses and telephone numbers, but most importantly patient identification numbers, dates of birth, treatment dates and other similar information. It is our belief and contention that Mr. Church gained access and compiled this information through unauthorized and illicit means. What is at issue here is our attempt to try to secure the information to try and mitigate any negative consequences to the patients as a result of Mr. Church’s access to and possible distribution of the information.”
Peller notified his patients and several media organizations, along with the US Department of Health and Human Services, which enforces the Health Insurance Portability and Accountability Act, or HIPAA, of the breach.
The judge turned down a request by Peller for access to Church’s computers, online storage accounts and other electronic media storage so that an independent expert could conduct a forensic analysis to ascertain that the material had been deleted and determine whether it had been shared with anyone else. Jerry Jordan, a local lawyer who represents Church, scored a partial victory in preventing Peller from looking at his client’s computer.
“Mr. Peller comes into this court with unclean hands,” Jordan argued. “By that I mean that Mr. Peller, by his own testimony, was negligent by allowing or giving Mr. Church these lists or he was complicit and actually took part by e-mailing these lists to Mr. Church. Now he’s coming to court looking for an equitable remedy when he himself testified that he gave the lists to Mr. Church. Now he wants to come in and seek injunctive relief to go in and search Mr. Church’s electronic files. Which I can assure you Mr. Church has a whole lot of confidential information regarding the various clients he’s had throughout the state that’s in his job as a campaign manager.”
Jordan himself availed himself of Church’s consulting services in an unsuccessful run for district court judge in Forsyth County earlier this year.
Peller submitted a list of patients that included dates of birth to the court. He told Judge Davis that the list had been e-mailed as an attachment from Church to David Wyatt, who was responsible for maintaining the candidate’s website.
“The document that Mr. Wyatt forwarded to me had information that had never been in a report before,” Peller testified, “namely dates of birth and e-mail addresses. There’s several criteria for information that needs to be protected. One of the criteria is date of birth. So there wasn’t a problem with an e-mail, or a list that had someone’s name and address and phone number, but once date of birth was included it rose to a different level.”
Jordan asked Peller if it was true that he e-mailed lists with patient information to Church.
“Mr. Church received physical lists from me, which had patients’ names, addresses and phone numbers,” Peller testified, later clarifying that the lists were distinct from the report Church allegedly ran that contained dates of birth and other sensitive information.
“And when you were giving Mr. Church these lists you knew that you were violating the HIPAA law,” Jordan said.
Peller responded, “The names, addresses and phone numbers weren’t in violation of HIPAA.”
Judge Davis expressed irritation at Jordan and Fontenot at one point when they were arguing about redactions to the report showing alleged breaches of protected patient information.
“You know, I watched all the tennis I wanted to this weekend,” the judge said. “When I have questions, I’ll ask you.”
After the hearing, Peller said he did not recall e-mailing the lists that included names, addresses and phone numbers to Church.
“I made up the list,” he said. “I was the one who called up people and asked for their support. As you know, I funded my entire campaign. I asked people if I could put my sign in their yard.”
In another legal development related to Forsyth County elections, Judge Davis ruled that three former employees of the Forsyth County Board of Elections are not entitled to the protections of the NC Whistleblowers Act because they are not state employees.
Jeremy Leonard, a Raleigh employment lawyer with Hairston Lane Brannon who represents Pamela Johnson, Terry Cox and Deena Head, argued that it’s not completely clear that the three weren’t state employees as opposed to county employees. In the absence of case law, he characterized the litigation as “somewhat of a matter of first impression,” meaning that his argument was untested and could have set precedent.
Leonard recommended that the court utilize a factor balancing analysis to determine whether his clients should be considered state employees. He noted that each member of the county board of elections is appointed by the state, and the director of the county elections office is appointed by the state and can only be terminated by the state. By that logic, anyone hired by the elections director should be considered a state employee as well, he argued.
Leonard said there was insufficient evidence that the employees were not state employees to meet the legal certainty standard required to dismiss the claim.
“I’m not looking for evidence,” Davis retorted. “I’m looking at allegations. There are none that these are state employees. Motion is granted.”
Sonny Haynes, a lawyer with Womble Carlyle Sandridge & Rice who represents Forysth County, the local board of elections, and Elections Director Rob Coffman, acknowledged there was no case law on whether the former board of elections employees are protected under the state law, but submitted a Winston-Salem Journal article to the judge that quoted a UNC School of Government professor as saying they should be considered county employees.
The whistleblower claim was only one of five made by the three former employees.
Plaintiffs Johnson and Cox “rightfully reported to their superiors in the Forsyth County Board of Elections and others in state government activity that violated both the county policies and state law,” the complaint reads. “This activity included the misappropriation of county funds and multiple violations of election laws of North Carolina.”
The Forsyth County Board of Elections investigated claims by Johnson, Cox, Head and others in early 2011 and “found no credible evidence of intentional violations of the voting laws.” In a testament to how closely knit the Forsyth County legal and political community is with the local elections system, Jordan was a member of the board of elections at the time that it made that finding.
With regard to the whistleblower claim, the lawsuit states, “Plaintiffs Johnson and Cox were subjected to adverse action by defendants, including recurring harassment, verbal abuse and humiliation which led to the untimely retirement of plaintiff Cox and the termination of plaintiff Johnson’s employment with defendant Forsyth County Board of Elections.
The three plaintiffs still have claims against Coffman, the board of elections and the county for wrongful termination, negligent hiring, negligent retention, and negligent and intentional infliction of emotional distress.