A Department of Health employee’s mission to expose alleged unfair hiring practices and improper handling of public funds took a hit May 27 when the DOH’s attorney successfully argued to dismiss two counts of the civil complaint filed last fall.

First Judicial Court Judge Barbara Vigil dismissed two counts related to breach of Diane Moore’s employment contract with the DOH, ruling that the State Personnel Board has the exclusive authority to remedy those complaints. Moore was moved to a different department within the DOH after alleging she knew of rampant nepotism in DOH hiring practices and possible fraud in the handling of federal food assistance money in the Women, Infants and Children program.

The SPB already denied a complaint Moore filed, and the time for her to appeal lapsed. Moore tells SFR that the SPB remedy would have been more applicable had she been fired or demoted from her position. 

Moore’s additional complaint for violation of the Whistleblower Protection Act and for retaliation under the Fraud Against Taxpayer Act still stands, though DOH attorney Quentin Smith argued at the hearing that improper expenditure of state funds isn’t a protected activity under the Fraud Against Taxpayers Act. That law would only protect Moore if she was reporting that state funds were fraudulently paid out to a contractor or other entity, Smith argued. He cited another case where a woman was fired for reporting that a state agency was “not utilizing government funds in the manner that it was prescribed to be used.” That was ultimately dismissed because the alleged wrongdoing reported didn’t technically constitute fraud, even if the money was improperly spent.

Vigil ruled that there are sufficient facts to allow the Fraud Against Taxpayers Act retaliation claim in this case to move forward, however.

“It’s felt like a lot of obstruction,” Moore tells SFR. “Up until now, we’ve been prevented from moving forward by a number of tactics that have been practiced by the state: ignoring things, not acting on filings; even this, trying to get everything dismissed.”

Meanwhile, the external audit report on WIC funds expected to come out last year still hasn’t seen the light of day. The audit was conducted after Moore helped bring to light allegations that $1.7 million in WIC funding was moved to cover up accounting problems at the DOH.

“The reason they’re taking this long is because there’s something to look at,” Moore says. “I’ve heard they’re going to come out that there’s fraud.”