Ex-S.C. agency director’s new job with key agency provider raises legal questions

June 6, 2018

Investigative Reports

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By RICK BRUNDRETT

Beverly Buscemi didn’t publicly – and apparently neither privately to key people – reveal specifics about her new job with her resignation at the end of last year as the longtime director of the S.C. Department of Disabilities and Special Needs.

“At this time, I feel it is important to move onto other opportunities outside of South Carolina while continuing to follow my passion of supporting individuals with disabilities,” Buscemi wrote in a letter to staff and service providers under contract with the department when her resignation was initially announced in October.

As it turned out, Buscemi, who became the agency head in November 2009 and left on Dec. 8, 2017, took a new job on Jan. 2 with Community Options Inc., a large, New Jersey-based nonprofit organization that currently has an approximately $11 million contract in South Carolina with DDSN and is regulated by the department.

Buscemi said Tuesday she didn’t believe it was necessary to seek a legal ethics opinion before taking her new job because she works out of state.

S.C. ethics laws pertaining to Buscemi’s situation are not well-defined, which allows plenty of wiggle room for interpretation.

After being contacted Monday by The Nerve, Patrick Maley, the interim DDSN director who was hired by Buscemi last year, said the department would seek a legal opinion from the State Ethics Commission.  The commission is tasked with policing the ethical conduct of government workers and officials –  though discipline of state lawmakers is left up to their chambers’ respective ethics committees.

State ethics law requires former public employees to wait a year after leaving their government jobs before taking a new position with an employer that is regulated by the public agency they formerly worked at, and involves a matter that the ex-government employees “directly and substantially participated” in – which isn’t defined – during their public tenure.

Another state ethics law bans public employees who participated “directly in procurement” from taking a job with an employer under contract with the government agency if the contract “falls or would fall” under their “official responsibilities” in their public jobs.

Criminal violations of ethics laws generally are misdemeanors punishable by a maximum sentence of one year in prison and a $5,000 fine. Civil sanctions can include a maximum $2,000 penalty for each offense, and forfeiture of “gifts, receipts, or profits” obtained through the violations, under state law.

The Ethics Commission by law is supposed to refer potential criminal cases to the state attorney general.

No one has publicly accused Buscemi of violating any ethics laws. Asked Tuesday by The Nerve if any formal complaint has been filed against Buscemi with the Ethics Commission, Meghan Walker, the commission’s director, declined comment, saying only, “We can neither confirm nor deny the existence of a complaint.”

Walker, a former assistant solicitor who took over as agency head in February, said she was not aware of any DDSN representatives contacting her office for a legal opinion on Buscemi’s situation, adding she didn’t know whether her predecessor had been contacted about the matter.

‘Abundance of caution’

In an email response Monday to The Nerve, Maley, a retired FBI agent and former state inspector general who was appointed by then-Gov. Nikki Haley, said based “solely on the DDSN information collected compared to the SC Code of Ethics and my experience with criminal violations, I did not see evidence of wrongdoing or criminal conduct.”

Still, Maley, a former DDSN program manager who was hired away in February 2017 by Buscemi from his state inspector general job, said that out of “an abundance of caution,” the department would contact the Ethics Commission “for an opinion and stand ready to assist if further investigation is warranted.”

In an email response Tuesday to The Nerve, Buscemi said an official ethics opinion was “not sought because I am not working in the state of South Carolina.” She said she is director of clinical services for Community Options’ national office in New Jersey, noting she is responsible for “Nursing and Behavioral Supports.”

“Community Options in South Carolina does not directly provide Behavior(al) Supports or Nursing services,” Buscemi said, adding the “current scope of my responsibilities does not include involvement with the Community Options offices in South Carolina.” Svetlana Repic-Qira, a regional vice president for the organization, earlier told The Nerve that Buscemi “spends a lot of her time in Pennsylvania and New Jersey operations,” and “doesn’t provide any services in South Carolina.”

The state ethics law requiring the year-long, cooling-off period for ex-government workers who “directly and substantially participated” in similar work activities in their former public jobs doesn’t define the terms “directly and substantially.” Walker told The Nerve that the State Ethics Commission has not issued a legal opinion specifically defining those terms.

The mission of Community Options, which has over 40 offices in 11 states, including several in South Carolina, is to “develop housing and employment for persons with developmental and intellectual disabilities,” according to its website. DDSN’s website says the state agency “serves persons with intellectual disability, autism, traumatic brain injury and spinal cord injury and conditions related to each of these four disabilities.”

Federal income-tax records show that in the fiscal year that ended last June 30, the nonprofit Community Options collected more than $138 million in total revenues, including $38 million in government grants and $99.5 million in program service revenue.

Multimillion-dollar contracts

According to information provided by Maley, approved contracts between DDSN and Community Options under Buscemi’s tenure increased from about $6.6 million in fiscal year 2016 to more than $10.9 million this fiscal year – a nearly 66 percent hike.

Maley said the “last material Community Options contract increase decision” was made before the fiscal 2017 year began, when “decisions were made to increase Community Option residential beds,” adding that “every residential provider was offered opportunities to obtain these high management beds, but very few providers were willing to meet the needs of this difficult population to serve.”

Buscemi did not directly respond to The Nerve’s questions about specifics of her duties and roles in connection with Community Options’ contracts when she was the DDSN director, though she said she received “regular briefings on the performance of all DDSN contracted providers, including Community Options.”

“All DDSN contracted providers are subject to quality assurance reviews, Medicaid program audits, DDSN audits and reviews as well (as) other quality assurance measures and protocols,” she said. “Community Options is included in all of these required processes.”

Asked if she had any other involvement with Community Options outside contractual matters, Buscemi said she was asked to speak at the organization’s national conference in Charleston last September – the month before she announced her resignation.

In a 2008 opinion explaining the state ethics law dealing with government workers who participated “directly in procurement” as part of their “official duties,” the State Ethics Commission said the definition of “procurement” under state law is “quite broad and covers more than the mere award of the contract,” noting it includes “all phases of contract administration.”

The commission concluded, “A state employee is prohibited from seeking employment with a vendor which was recently awarded a contract in which he participated in the procurement as a public employee and would continue to oversee the contract if he were to remain in the public position.”

In his email response Monday, Maley said nine top DDSN managers, including himself, did not have “any information Dr. Buscemi worked on Community Options’ contract with DDSN since leaving DDSN employment, which appears to be a key element in potential State Ethics Code violations.”

Maley said he didn’t know about Buscemi’s new job until contacted Friday by two unnamed DDSN commissioners; and that two executive staff members “became aware within the past two weeks due to a national conference brochure having Dr. Buscemi’s picture and Community Options title as a speaker.”

Buscemi in her written response said she did not “indicate to Commissioners or staff of DDSN specifically (about) my future employment.” She didn’t respond to a follow-up question about why she remained silent on specifics before she left her director’s position on Dec. 8, less than a month before starting her new job.

Brundrett is the news editor of The Nerve. Contact him at 803-254-4411 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

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