Fired lawyer opposed no-bid contract, released emails on Kemp’s handling of pandemic

Gov. Brian Kemp, Dr. Kathleen Toomey, Commissioner Georgia DPH, and U.S. Army personnel along with members of the Federal Emergency Management Agency (FEMA), the Georgia Emergency Management Agency (GEMA), Fulton County Board of Health and Fulton County arrive for a press conference as operations get under way for Mercedes-Benz Stadium to become the largest Community Vaccination Center in the southeast serving an average of 42,000 citizens a week on March 23, 2021, in Atlanta.  “Curtis Compton / Curtis.Compton@ajc.com”
Caption
Gov. Brian Kemp, Dr. Kathleen Toomey, Commissioner Georgia DPH, and U.S. Army personnel along with members of the Federal Emergency Management Agency (FEMA), the Georgia Emergency Management Agency (GEMA), Fulton County Board of Health and Fulton County arrive for a press conference as operations get under way for Mercedes-Benz Stadium to become the largest Community Vaccination Center in the southeast serving an average of 42,000 citizens a week on March 23, 2021, in Atlanta. “Curtis Compton / Curtis.Compton@ajc.com”

Credit: Curtis Compton / Curtis.Compton@ajc.com

Jennifer Dalton was a career government lawyer, approaching retirement at age 61, when she took on a new role at an urgent moment: general counsel of Georgia’s public health agency amid the worst pandemic in a century.

Almost immediately, however, Dalton began objecting to what she calls “potential violations of state and federal law” by the agency and its commissioner, Dr. Kathleen Toomey.

The protests cost Dalton her job, she says.

In a letter seeking compensation under the state’s whistleblower protection law, Dalton alleges she was unlawfully fired in retaliation for questioning a $14 million, eight-month contract for scheduling COVID-19 vaccinations, awarded without competitive bidding to a company represented by a lobbyist whose family apparently is close to Toomey.

Dalton’s letter also says she faced reprisals for releasing emails that became the basis for a critical story in The Atlanta Journal-Constitution about Gov. Brian Kemp’s handling of the coronavirus pandemic. Redacting the emails, as Dalton claims she was asked to do, would have violated the state’s Open Records Act, she says.

Toomey fired Dalton four days after that story was published, immediately ejecting her from the agency’s downtown Atlanta headquarters.

“After a lifetime of public service,” Dalton’s lawyer, Kimberly Worth, wrote to Toomey and Kemp, “she was perp walked out of DPH with a security escort in tow.”

Dalton’s reputation, Worth wrote, “is now tarnished by her sudden and unlawful termination,” making it impossible to obtain another job in state government. Dalton is seeking almost $800,000 in lost pay and retirement benefits and to cover legal costs.

The whistleblower complaint raises questions about the health agency’s stewardship over millions of dollars in federal pandemic aid, while also challenging Toomey’s public image as a soft-spoken bureaucrat who is aloof from politics.

Nancy Nydam, a spokeswoman for Toomey, said the health agency does not comment “on matters of potential, pending or post litigation.” She declined to answer specific questions about the no-bid contract, awarded to Reston, Virginia-based Maximus Inc. Kemp’s spokeswoman, Mallory Blount, also declined to comment.

Through her lawyer, Dalton declined to discuss her complaint.

Dalton spent 23 years in the state attorney general’s office, working in both Democratic and Republican administrations, before joining the Department of Public Health last October.

She discovered that the agency’s legal office was a “fiasco,” her lawyer’s letter alleges. The office had failed to respond to “thousands” of records requests, Dalton says, exposing the agency to legal fees and possible judgments for violating the open records law.

Among the requests was one the Journal-Constitution had submitted in May 2020 seeking emails between Toomey and the governor’s office. The agency initially told the newspaper it had suspended its compliance with the records law for the duration of the coronavirus emergency. Then it said it would provide the records at a cost of about $2,700. The newspaper paid the retrieval fee, but the agency still did not turn over the documents.

Dalton overhauled the agency’s response process, according to her lawyer, and cleared the languishing records requests in her first few months in the job. She turned over more than 15,000 pages of emails to the Journal-Constitution in late January.

During this time, Toomey “relied” on Dalton, her lawyer says, and “demanded things of her at all conceivable times.” As the coronavirus surged in early 2021, Dalton worked seven days a week.

Despite the demands of the pandemic, Toomey assigned Dalton to an unusual task in February, according to her lawyer: to research a private legal matter involving her friends Abit Massey, president emeritus of the Georgia Poultry Foundation, and his wife, Kayanne, a one-time Miss Georgia. Their connection to Toomey is not clear.

During the same period, the Masseys’ son — Lewis Massey, who was Georgia’s secretary of state from 1996 to 1999 — was lobbying the health agency to award a contract for a vaccination call center to one of his clients, Maximus Inc.

Lewis Massey said Monday he couldn’t comment on the contract because of possible litigation. He said any allegation involving his parents is untrue.

He had first contacted the health agency on behalf of Maximus in October 2020, records show. By the time Dalton received a draft agreement for review in February, the contract had apparently been in the works for several weeks but had not been put out for competitive bids, according to her lawyer.

Dalton says she told other officials that public health districts across the state already had their own vaccination scheduling systems. By rushing through the contract with Maximus, her lawyer says, she worried that the agency “would be viewed as sneaking the contract through a non-bid process costing taxpayers millions of dollars for no reason.”

In a tense exchange, Toomey yelled at Dalton, according to her lawyer. “I’m not going to argue with you,” Dalton quoted Toomey as saying. “Get it done.”

Toomey stopped speaking with Dalton after the confrontation, according to Dalton’s lawyer, and the Maximus contract was handled by another office in the health agency.

On March 16, Kemp’s general counsel, David Dove, summoned Dalton to his office in the Capitol, according to Dalton’s lawyer. Dalton did not report to Dove. Nevertheless, he urged her to resign from the health agency and then, in six months, apply for a part-time state job that offered lower pay and no benefits. In an email on March 22, Dalton rejected Dove’s suggestion.

Then, on March 26, the Journal-Constitution published a story based in part on the emails Dalton provided. It reported that Kemp had repeatedly disregarded advice from Toomey and other public health experts; the governor’s office had largely dictated public messaging about the coronavirus, including Toomey’s public statements; and the state had withheld information showing the pandemic was worsening as Kemp relaxed virus-control measures. At the time, a spokesman for Kemp disputed some of the Journal-Constitution’s conclusions and said many other states “fared no better against COVID-19 than Georgia did.”

Four days later, Dalton lost her job.

A letter from a human resources official gave no reason for the termination, other than her “failure to satisfy” a six-month probationary period. She was ordered to leave the agency’s offices immediately, before she could even gather her personal belongings.