OFFICE OF THE CONTROLLER

Mark Pinsley, MBA Nanton Johns, CFE

COUNTY CONTROLLER DEPUTY CONTROLLER

To:
• Board of Commissioners (BOC)
• Executive Philip Armstrong
• Solicator’s Office

Re: October 6th LSR #2023‑505; AUTHORITY OF THE BOARD OF COMMISSIONERS…

Date: October 16, 2023

Dear Board of Commissioners:

I am writing to share my worries about the legal advice the Solicitor’s Office provided in their
response to LSR #2023-505. This advice is about the authority the Board of Commissioners
(BOC) has in making policy changes to the County’s Office of Children and Youth Services
(OCYS).
Before delving into the specific elements of the Solicitor’s advice, it is paramount to outline the
primary points of contention which is the blend of legal facts and personal opinions in the
advice. These concerns stem from a potential conflict of interest that the Solicitor’s office may
be experiencing for example: one contributor to the Solicitor's LSR #2023-505 was the Children
and Youth spokesperson. The Solicitor has provided past legal opinions in cases where he used
the doctor as an expert witness. This doctor is the same doctor whose diagnoses are now being
questioned. The Solicitor may have a conflict of interest or bias when evaluating concerns
about the doctor's practices. The Solicitor likely has a close working relationship with the doctor
that could influence his objectivity. Some lawyers in the Solicitor's office have been directly
involved in child removal. With such close ties, it seems virtually impossible for unbiased
counsel. We need to keep this in mind when weighing the Solicitor's current opinions related to
this doctor's diagnosis.
In the opinions of the controller, the policy guidance reflects this affiliation bias. An
independent perspective is imperative to ensure impartial legal advice focused solely on
objective facts, untainted by personal affiliations.
In this letter, I aim to distinguish between the legal facts and the opinions included in the
Solicitor’s advice. It’s essential to make sure that everyone understands what the law says. This
information will help the BOC and the public make decisions for the people in our community.
Even though the Solicitor’s report is 152 pages long, the main points are found in the first nine
pages. The most important information for the public is in the “Discussion – Actions Available to
the BOC” section on pages seven to nine.

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FAX: (610) 871-2897
Lehigh County Government Center. 17 South Seventh Street. Allentown. PA 18101-2400 http://controller.lehighcounty.org
 OFFICE OF THE CONTROLLER
Mark Pinsley, MBA Nanton Johns, CFE
COUNTY CONTROLLER DEPUTY CONTROLLER

LEGAL ADVICE
The Solicitor’s advice is a mix of legal facts and personal opinions, which can complicate our
understanding and decision-making process. It is important to delineate legal fact from opinion
for informed, unbiased decisions, especially concerning sensitive OCYS policies. By clearly
separating legal advice from personal views, we ensure that actions are legally sound and in our
community’s best interest.
The Solicitor’s letter states: “You [referring to the Board] have asked what role the Board of
Commissioners (BOC) might have in directing or setting policy for the operation of the County’s
Office of Children and Youth Services (OCYS)…”, our notes will highlight instances where the
Solicitor’s advice extends into opinions, which may lead to some confusion.

REFERRAL TO DHS
The Solicitor acknowledged the BOC’s referral of “The Cost of Misdiagnosis” report to DHS on
August 23. It’s crucial to note that the Controller’s Office initiated this referral the same day.
Further, State Senator Jarrett Coleman contacted DHS on October 2, 2023. We anticipate DHS’s
acknowledgment that this is a county matter.

ADVISORY BOARD
While the Solicitor emphasizes the Advisory Board’s role, the Controller asserts that the public
has already articulated their concerns. The BOC should act promptly, utilizing the Advisory
Board’s guidance in the implementation phase.

POLICY MAKING
Solicitor’s Statement on Policymaking Abilities of BOC:
• The Solicitor states: “The County may establish additional policies for OCYS if done after consultation
with the agency administrator and with approval of DHS,” further elaborating that “…the regulations
and bulletins [from DHS] in some instances set the floor or threshold for OCYS actions, and do not
preclude going beyond the minimum requirements.”
• Controller’s Response: The Solicitor confirmed that the BOC could implement a requirement for OCYS
to obtain a second opinion before or immediately after a child’s removal.

The Solicitor’s Opinion on Multidisciplinary Investigative Teams and Second Opinions:

• The Solicitor states:, “…a MDIT [Multidisciplinary Investigative Teams] approach to investigating child
abuse allegations is to minimize the number of times a victim is subjected to interviews or
examinations. See 23 Pa.C.S. §6365(c).” (emphasis added)

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FAX: (610) 871-2897
Lehigh County Government Center. 17 South Seventh Street. Allentown. PA 18101-2400 http://controller.lehighcounty.org
 OFFICE OF THE CONTROLLER
Mark Pinsley, MBA Nanton Johns, CFE
COUNTY CONTROLLER DEPUTY CONTROLLER

• The Solicitor continues: "While the BOC may consider such a policy [second opinion], the following
must be addressed by the BOC in so doing. Initially, because such a policy would likely not be
consistent with the MDIT goal referenced above of limiting the number of exams and interviews to
which a child may be subject..." (emphasis added) the solicitor then goes on to give his opinion on
how a policy should be enacted.
• Controller’s Response: When the Solicitor claims that getting a second medical opinion goes against
“minimizing” exams, he is giving his own personal take. This is not an objective legal opinion.
The Solicitor is interpreting the word “minimize” based on his own views. He is assuming his personal
definition is the only way to satisfy the goal of “minimizing.”
But reasonable people can disagree on what “minimizing” really requires in this situation. There are
no clear laws defining this term. The Solicitor has shifted from legal facts into his own subjective
opinion.
The public needs to understand when the Solicitor moves from objective legal advice to promoting
his own personal perspectives, that these are two different things. One is based on the law. The
other is just one person’s opinion.
Most importantly, if anyone disagrees with what “minimizing” means, that question should go
straight to the Department of Human Services (DHS). The Solicitor’s office should not decide what
satisfies “minimizing” - that’s for DHS to advise.
The Controller’s office recommends making this query to DHS public to promote transparency and
comprehensive understanding, ensuring diverse perspectives are considered. The critical point is
that reasonable people can disagree on what satisfies “minimizing.” The goal of ensuring our
children and families are safe should drive the policy.

D. The Solicitor’s Expansion into Policy Recommendations:

• The Solicitor states: requiring a second opinion might undermine OCYS’s ability to make decisions
within the regulated time and could complicate cases with differing medical opinions.
• Controller’s Response: Consistent with the current process, these issues would naturally escalate to a
judge for resolution. Currently, judges receive limited input from just one doctor’s opinion. If an
additional conflicting opinion is presented, the courts are equipped to handle that situation. The goal
should be providing comprehensive information to get the right outcome for the child and family,
not restricting information given to a judge. Greater information leads to more just outcomes, even
if added complexity results. The Solicitor should focus on legal obligations, not steering policy based
on personal reservations.

BOC’S ABILITY TO HIRE AN INVESTIGATOR

Solicitor’s Confirmation:
• The Solicitor confirmed the BOC’s ability to hire a third party to review OCYS policies and procedures.

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FAX: (610) 871-2897
Lehigh County Government Center. 17 South Seventh Street. Allentown. PA 18101-2400 http://controller.lehighcounty.org
 OFFICE OF THE CONTROLLER
Mark Pinsley, MBA Nanton Johns, CFE
COUNTY CONTROLLER DEPUTY CONTROLLER

• Controller’s Response: This confirmation aligns with the need for an unbiased, objective examination
of the current policies and procedures to enhance child welfare and family support systems.

Confidentiality Concerns Raised by the Solicitor:

• The Solicitor argues “The BOC could hire an outside entity to conduct an investigation, but based on
the confidentiality restrictions, the BOC could not provide case files for review, which such an entity
would likely need to provide a balanced and well-informed evaluation of how OCYS handles abuse
cases.”
• Controller’s Response: Despite the Solicitor’s claim, viable legal mechanisms exist for third parties to
access needed data while upholding confidentiality. Specifically, data-sharing agreements have
allowed entities like PennState to partner with multiple counties for research purposes while
protecting sensitive information. These precedents debunk the Solicitor’s stance, implying OCYS
cannot share confidential data with external experts. The confidentiality barrier suggested by the
Solicitor appears manageable, given appropriate mechanisms have already proven workable through
examples like PennState.

Solicitor’s Bias Towards DHS Involvement:

• The Solicitor insists, “It is clear from our review of the statutes and regulations that the legislature
contemplated DHS as the primary entity to investigate and evaluate the performance of County
OCYS agencies concerning the handling of child abuse matters.”
• Controller’s Response: While DHS has a role, relying solely on them would likely delay meaningful
action. DHS guides all counties, not recommendations specific to one County. Waiting years for DHS
reforms is unrealistic. The BOC can legally hire a third party now. This independent analysis is critical
given the urgent need for potential policy improvements.
Several third parties exist beyond PennState that can assist in this research. The two found by the
Controller are:
Joseph P. Ryan, Ph.D.
Professor School of Social Work,
Director Child and Adolescent Data Lab
University of Michigan
ssw-datalab.org

Freida S. Baker,
Executive Director
The Child Welfare Policy and Practice Group
313 North Hull St., Montgomery, AL 36104
Office: 334-264-8300

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FAX: (610) 871-2897
Lehigh County Government Center. 17 South Seventh Street. Allentown. PA 18101-2400 http://controller.lehighcounty.org
 OFFICE OF THE CONTROLLER
Mark Pinsley, MBA Nanton Johns, CFE
COUNTY CONTROLLER DEPUTY CONTROLLER

Estimated costs: $250,000

– These costs equal ~10 children in foster care for a year.

– The County annually spends ~$8,000,000 on foster and kinship care.

THE NEED FOR CLARITY AND OBJECTIVITY IN LEGAL GUIDANCE

Our community’s confidence in the legal guidance is integral to fostering public trust. The
Solicitor should enhance the clarity, objectivity, and separation between legal guidance and
policy recommendations in the legal advice provided. Doing so will promote sound
policymaking by the BOC. Legal advice should offer factual, precise, and concise information
that aids objective decision-making.
My recommendations stand:
1. Immediate Enactment of Second Opinion Policy: Implement a policy requiring a second opinion
from an unaffiliated specialist before or after a child’s removal, based on case circumstances.
2. Third-party Evaluation: Collaborate with SEIU to hire an independent entity to review and propose
enhancements to current policies. Make proposed changes public within legal limits.
3. Public Appeal for Hospital Reviews: Have the Solicitor publicly request local hospitals to commission
third-party reviews of specific diagnoses, restoring public confidence.

In addition:
1. Engage with SEIU: Given SEIU’s readiness to engage, as expressed in a recent commissioner meeting,
the BOC should swiftly and publicly extend an invitation for SEIU to delineate their preferred mode
of participation in pertinent discussions.
2. Issue a letter of non-pursuit in the Orion case: The County retracted its child abuse allegations
against the parents following an investigation and court case. The investigation crossed a 60-day
threshold from the initial Childline report, it automatically received an “indicated” classification in
the Childline registry. This classification labels the parents as child abusers without formal findings, a
judge’s decision, or a jury’s verdict. Although the County has abandoned its claims, the parents must
now engage in another legal fight to erase their names from the registry.
Statistics indicate that ninety percent of caregivers successfully appeal, suggesting that the parents
can demonstrate their innocence. Currently, the Solicitor’s office maintains the position of keeping
the parents’ names on the Childline registry; we are keen to understand the reasoning behind this
stance.

The County should instruct the Solicitor’s office to issue a letter of non-pursuit in the Orion case,
avoiding the unnecessary expenditure of taxpayer dollars on a likely losing battle. Reviewing other
“indicated” cases where the County withdrew the case, yet parents are still labeled as abusers, could

--- Page 5 of 6 --- (610) 782-3082

FAX: (610) 871-2897
Lehigh County Government Center. 17 South Seventh Street. Allentown. PA 18101-2400 http://controller.lehighcounty.org
 OFFICE OF THE CONTROLLER
Mark Pinsley, MBA Nanton Johns, CFE
COUNTY CONTROLLER DEPUTY CONTROLLER

also be beneficial. Adopting this fact-based strategy can lead to the resolution of cases without
additional litigation.

The Solicitor’s reply underscores the Controller’s inclination to engage an independent external
legal counsel for his department. Addressing the BOC’s query about its role in influencing the
policies of the County’s Office of Children and Youth Services (OCYS), it might have been
prudent for the Solicitor to consider stepping back, given the close relationship between their
office and OCYS. Although likely rooted in a desire to be helpful, the current legal guidance
interweaves objective data with personal viewpoints that could potentially deter the Board
from proactive measures. An unbiased perspective from an external source could offer clear,
unbiased insights, facilitating informed decisions without seemingly discouraging specific
actions.
Sincerely,
Mark Pinsley
County Controller

--- Page 6 of 6 --- (610) 782-3082

FAX: (610) 871-2897
Lehigh County Government Center. 17 South Seventh Street. Allentown. PA 18101-2400 http://controller.lehighcounty.org