AUGUSTA — State officials who have been subpoenaed by a legislative committee to explain the destruction of public documents justifying $4.7 million in public health grants could give their testimony in an unprecedented private hearing.

Attorneys defending the Department of Health and Human Services and the Center for Disease Control and Prevention against a lawsuit asked the Government Oversight Committee last week to interview the five subpoenaed officials, including CDC Director Sheila Pinette, in a closed-door meeting. The five officials are scheduled to appear before the committee Friday.

The request for privacy is the first in the five-year history of the oversight committee, which reviews state programs and agencies for inefficiencies or suspicion of mismanagement of public funds or duties. The request puts the 12-member panel in the position of choosing between transparency and the possibility that it could learn more about the case if the officials testify privately.

Sen. Emily Cain, D-Orono, the committee’s Senate chair, said the request contradicts the duty of the committee.

“This entire investigation and the fundamental goal of the Government Oversight Committee is to increase transparency and trust in government,” Cain said. “I’m concerned that if we do this we will be adding to the secrecy around this issue.”

The committee originally intended to take testimony in public. If it agrees to the private session, it will be limited in the amount of information it can share with the public.

The committee subpoenaed the five officials last month after the Legislature’s investigative arm determined that supervisors in the CDC ordered staff members to destroy grant documents and found “strong indications” that supervisors manipulated selection criteria for the Healthy Maine Partnerships program. The probe by the Office of Program Evaluation and Accountability stalled because of the missing documents and inconsistent stories from CDC officials.

The oversight committee appears to be divided on the request for a private session, the prospect of which was raised by Rep. Paul Davis, R-Sangerville, during a meeting on Feb. 28, a week after the vote to take testimony under oath.

Rep. Chuck Kruger, D-Thomaston, the committee’s House chair, said Wednesday that he’s “on the fence.”

“On the one hand we could learn more information (in a private session) that could fix the problem,” he said. “But the other part of this is, how do we share what we’ve learned with the public?”

The panel has six Democrats and six Republicans. Beth Ashcroft, director of the Legislature’s investigative arm, said it will take a majority on the “no” side to prevent a closed meeting. If the committee splits down the middle, the session will be closed.

The five CDC officials are Pinette; Debra A. Wigand, the CDC’s director of public health; Andrew Finch, senior program manager for Healthy Maine Partnerships; Zukas, the deputy director; and Lisa Sockabasin, director of the Office of Health Equity.

All of them were initially invited to testify voluntarily, but all declined, citing an email from an attorney in the DHHS.

Since then, the private attorneys representing the department and Pinette in a federal whistleblower lawsuit have tried to delay the legislative probe, saying it could interfere with their legal defense.

The request for the private session was formalized in a letter to the committee dated March 3. Jonathan Shapiro and Eric Uhl, labor attorneys representing the department, argued that the legislative probe has a greater chance of complicating the civil case since two of the CDC officials – Zukas and Sockabasin – were added as defendants in the lawsuit filed by Sharon Leahy-Lind, former director of the CDC’s Division of Local Public Health.

Leahy-Lind alleges that her supervisors told her to shred the grant documents after the Lewiston Sun Journal requested them through the Freedom of Access Act.

Leahy-Lind resigned, citing a hostile work environment and harassment after she made her story public. Katie Woodbury, a current CDC employee, has joined her as a plaintiff in the lawsuit.

The department’s attorneys wrote that the oversight committee may learn more about the document shredding and grant manipulation in a private session.

“By providing testimony in executive session, these employees will be better able to respond to the committee’s questions, so that the committee may be fully informed regarding any decision it makes,” they wrote.

The request was made on behalf of all five CDC officials. That leaves questions about why the two who aren’t named as defendants, Wigand and Finch, would need to testify privately.

Ashcroft said the oversight committee could make decisions about private testimony on a “witness-to-witness” basis.

Ashcroft said she was not surprised by the request, given the lawsuit. She said some legal questions remain, such as whether the judge in the civil case could later order closed-door testimony released for evidence in a trial.

“We haven’t been in this position before,” she said.

The Freedom of Access Act severely limits private meetings by public officials, but Ashcroft said the Attorney General’s Office found that the right-to-know law is superseded by the Legislative Investigative Committees law, which allows for closed sessions at the request of witnesses.

Ashcroft said she has been aware of the law that allows witnesses to testify privately since she prepared for the oversight committee’s investigation into wrongdoing in the Maine Turnpike Authority in 2011. None of the witnesses in that case asked to give testimony privately.

The Government Oversight Committee will decide Friday morning, in public, whether to grant the request for privacy.

Ashcroft said she is not making a recommendation either way. She does not expect the committee to take public testimony on the issue.

Steve Mistler can be contacted at 791-6345 or at:

smistler@pressherald.com

Twitter: @stevemistler