David Plymyer: Audit of COVID Test Kit Purchases Raises Questions That Deserve Answers

Audit
Cargo is removed in April 2020 from a Korean Air passenger plane, which delivered COVID-19 test kits to Maryland through "Operation Enduring Friendship," an effort to secure testing in Maryland that involved top South Korean officials, First Lady Yumi Hogan and the Hogan administration. Photo from the governor's Twitter page.

I believe that Maryland Department of General Services Secretary Ellington Churchill Jr. has a problem, and he knows it. According to a report by the Office of Legislative Audits, he authorized the ill-fated purchase of 500,000 COVID-19 test kits from LabGenomics last April. More scrutiny of what Churchill did, or failed to do, is necessary.

Although the deal was negotiated by Gov. Larry Hogan with the assistance of his wife, Yumi, Churchill formally approved the procurement from the South Korean company. He instructed the former director of procurement for DGS, Danny Mays, to initiate the $9 million purchase through a letter of intent dated April 2, 2020.

Here is the problem: Churchill made the emergency procurement on behalf of the Maryland Department of Health. He attributed the decision to purchase the tests from LabGenomics to MDH. He told the Office of Legislative Audits, however, that he could not identify the specific individual from the health department who made the decision. That seems odd.

Bobby Neall was secretary of MDH at the time. Dennis Schrader, who is now the secretary, was his deputy. Both stated that they were not involved in the process and did not know who decided to approve the purchase from LabGenomics. OLA could find no paper trail documenting the purported decision by MDH.

The governor personally intervenes to obtain COVID-19 tests from a foreign country and the top two officials at MDH did not know who in their department participated in the decision-making, and there is no paper trail of the decision? That seems even odder.

DGS itself recognized the practical importance of having MDH make the decision, conceding that it lacked the knowledge or expertise to determine if the LabGenomics test kits were suitable for the purpose for which they were intended. DGS issued a statement asserting that it relied upon “the expert opinions of clinicians and others within MDH who have made the determination that [the 500,000 LabGenomics] tests will meet the needs of the State and that costs are fair and reasonable.”

David A. Plymyer

OLA found no documentation of the “determination” or the opinions on which it allegedly was based. That is more than odd; it is suspicious and puts Churchill’s credibility in doubt.

When the OLA report states that Churchill “could not identify” the MDH official who approved the transaction, it is not clear whether that means that he never knew who it was, or he simply did not remember. It appears unlikely that Churchill, a veteran of government, would not verify the identity of the MDH official who approved the purchase before initiating such an extraordinary, high-profile transaction. Sometimes ordinary prudence and covering one’s backside are one and the same thing.

On the other hand, the idea that Churchill forgot who it was from MDH who gave his or her blessing to this blockbuster deal less than a year earlier also strains credulity. Another possibility therefore comes to mind: The possibility that the governor told Churchill to get the deal done and Churchill did not concern himself with making sure that the leadership of MDH was onboard.

If that were the case, Churchill may have a legal problem in addition to a credibility problem. He and his agency clearly understood the risks inherent in the emergency procurement, effectively acknowledging that they had a duty to obtain the approval by someone in authority at MDH to make sure that the $9 million was not misspent. Churchill exposed himself to a charge of misconduct in office if he proceeded in the absence of that approval.

Indeed, it may take the state prosecutor and a grand jury to find out whether corners were cut and, if so, by whom. The consequences of the purchase of the flawed tests certainly justify a criminal investigation.

The purchase was more than a waste of money. It delayed the procurement of more reliable tests, which in turn impeded Maryland’s efforts to control the pandemic.

The higher incidence of both false negatives and false positives from the tests also posed more direct dangers. A spate of false positives at nursing homes resulted in COVID-free patients being moved to areas of the facilities where patients with COVID were isolated, needlessly exposing healthy residents to residents with the disease.

The Hogan administration responded with typical defiance, the chiefs of staff of the Department of General Services and the Maryland Department of Health describing the OLA report as “politically-driven.” It was an ironic choice of words, given the political mileage that Hogan milked from the purchase, featuring the “game-changing” achievement in his memoir, “Still Standing.”

The state prosecutor can cut through the bluster and bravado. Marylanders have the right to know if their money was wasted and lives endangered by the recklessness of state officials anxious to give the governor a political moment in the sun.

— DAVID A. PLYMYER

The writer is a former county attorney in Anne Arundel County. He can be reached at [email protected] Twitter: @dplymyer