Center for Open Government: Molina argued their MCO consultant wasn't covered by ethics code, despite signed NDA
We were interested in Molina Healthcare’s attempt to convince the Kentucky Court of Appeals that Emily Parento — a CHFS transition team co-chair for Gov. Andy Beshear and member of Molina’s Medicaid managed care team — wasn’t subject to the state’s ethics statutes.
Their argument flew in the face of a non-disclosure agreement (NDA) signed by Parento that included specific language stating she agreed to abide by “the provisions of the Executive Branch Code of Ethics.”
To dig a little deeper, the Center for Open Government obtained a copy of Molina’s appeals court brief.
Their argument started with “the Trial Court’s finding that Ms. Parento was subject to and violated the Ethics Code was erroneous and…should be reversed.”
Addressing the signed NDA, Molina’s attorneys offered that in an affidavit Parento “unequivocally refuted (the trial court’s) interpretation” that she “expressly bound herself to the requirements of the Executive Branch Code of Ethics, KRS Chapter 11A, by signing an NDA [nondisclosure agreement].”
Their brief attempted to undermine the NDA’s validity with the instrument’s reference to “‘review team’ members, which Ms. Parento was not.” (p.19) We obtained copies of the ‘review team’ NDAs in an earlier open records request. It is clear to anyone who has worked in state government that — given the compressed timeframe of the transition — CHFS utilized a readily available document to meet the needs of the moment. Parento signed it without modification.
Ultimately, Molina failed to convince the court. According to their ruling:
There is no ambiguity in the language of the confidentiality statement. It plainly states that Parento agreed to be bound by the EBCE at least with regard to her involvement with the 2019 RFP. Molina’s argument that Parento “expressly and unequivocally refuted that interpretation in her affidavit testimony” is insufficient to invalidate the agreement where the language of the instrument is unambiguous.
We return to a question we posed in our September 15th post: why does it matter if Parento was bound by the ethics code?
The Molina documents included some new facts that might help answer that question.