State ends stalemate over funds

After a five-week stalemate over $1.5 million in child welfare funds, the state Department of Health and Human Services has reversed course and agreed to release the money to the Clark County district attorney's office.

Department Director Mike Willden had been withholding the money since mid-August because of a conflict in how the district attorney represented the county's Department of Family Services in child abuse and neglect cases.

State law requires the prosecutor to represent the public in such cases, independent of the child welfare agency. But the Legislature's latest budget bill required the prosecutor to represent only the wishes of the agency.

In withholding the funds Willden sided with the legislative intent of the budget bill, but he changed his mind last week to coincide with an attorney general's opinion that said budget bills cannot change state law.

Part of the reason for Willden's reversal was a potential lawsuit against the state by Clark County, said Ben Kieckhefer, spokesman for the Department of Health and Human Services.

Clark County District Attorney David Roger said he had been preparing to sue the state in Carson City if the money was not released.

"I'm glad we didn't have to file a lawsuit against the state over this issue," he said.

The $1.5 million is earmarked for the next two fiscal years.

The dispute centers on differing philosophies about the role of prosecutors in child abuse and neglect cases, which take place in Family Court after children have been removed from their homes.

Nevada uses the prosecutorial model, which gives prosecutors freedom to disagree with recommendations by Family Services case workers if they think children would be put in harm's way.

Roger said the model creates checks and balances for Family Services, a county agency that has been under scrutiny in recent years for problems involving the safety of children under its care.

"DFS gets it wrong sometimes," Roger said. "We believe, morally and legally, we have an obligation ... to step in when children are in danger."

The other model, called the agency representation model, requires a district attorney to obey the wishes of the child welfare agency.

The American Bar Association recommends that model, citing the expertise of child welfare case workers in making decisions about safety, among other reasons.

Willden hoped to push Clark County toward that model, Kieckhefer said.

"Mike tried to play the middle and make some movement toward a system that's in the best interest of children," he said.

Critics of the current system point to potential conflict and confusion involving lawyers in the district attorney's office.

Roger's office represents the Department of Family Services in civil matters such as lawsuits and legal opinions. Sometimes those same civil attorneys ended up in court on behalf of the agency arguing against a prosecutor who was also from the district attorney's office.

Roger ended that practice last month.

State lawmakers had tried to change the law during the past legislative session.

In the final days of the session, Assemblywoman Debbie Smith, D-Sparks, chairwoman of the Assembly Health and Human Services Committee, introduced an amendment to an unrelated bill that would have changed state law and require the district attorney to represent only the child welfare agency, not the public.

Roger scrambled to Carson City to lobby against it, and he got support from the governor's office and senators who refused to pass the amended bill, which died.

But in the state budget bill, lawmakers inserted a requirement that the district attorney represent only the child welfare agency or lose a chunk of state funding.

After weighing the intent of legislators and conflicting legal opinions from the Legislative Council Bureau and the attorney general's office, Willden withheld the money.

Roger challenged the decision as unconstitutional and demanded the money, and Willden changed course last week.

Roger said he expects the issue to rise again in Carson City, and he is prepared to fight to maintain the independence of prosecutors in child abuse and neglect cases.

Without those checks and balances, he said, "we would have to stand mute and watch a child return to a dangerous household."

Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.