After the Grand Jury was led down the path in the garden of good and evil by county attorney Tidwell, Mitchell and Galle were arrested and charged with Misuse of Official Information under Section 39.06(b) of the Texas Penal Code: “A public servant commits the offense of Misuse of Official Information if with the intent to harm another he uses information for a nongovernmental purpose that (1) he has access to by means of his employment and (2) has not been made public.”
Because Mitchell and Galle were employed by a county hospital they are considered public servants for the purposes of this criminal statute. Since the information they sent to the Texas Medical Board was accessed by means of their employment and was not public information, it is considered ‘Official Information’. So all that was left to be guilty of the crime was to use the information for a nongovernmental purpose with the intent to harm another. To come to the conclusion that reporting the information to a state agency, namely the Medical Board, constitutes a nongovernmental use of information, requires some advanced mental gymnastics unique to lawyers. Indeed the prosecutions result in this activity was to argue that the operating word ‘use’ should not be defined by how the information was physically used, i.e. sent to a medical board as the basis of a complaint, but rather ‘use’ should be defined by the INTENT behind it. In other words if the intent was to harm another by using the information, the actual manner in which the information was used was immaterial. The problem with this is that it creates a redundancy in the statute. There is no need to say ‘nongovernmental purpose use with the intent to harm another’, since ANY use withe the intent to harm would be criminal. It also makes reporting factually true violations to the Board, if the complainant hopes the physician is punished or looses his license, a crime. Of course the statue as written would apparently allow governmental purpose use of Official Information with the intent to harm another.
So how and why did assistant district attorney Fostel, county attorney Tidwell and sheriff Roberts come to the conclusion that official information had been used for a nongovernmental purpose with the intent to harm Dr. Arafiles? Because Arafiles told them so apparently. You see, Dr. Arafiles was already under the gun at Memorial Hospital for issues over his restricted medical license and the quality of his medical practice. Mitchell and Galle were in charge of Quality Improvement as well as Medical Staff Co-ordination as previously noted. As such they dealt with any complaints or concerns of a physician’s clinical practice. And complaints and concerns there were. As the Chief of the Medical Staff, Dr. Khoa Pham had the responsibility of signing off on medical staff privileges and resolving any issues of the quality of the medical practice of other hospital physicians. Mitchell had received multiple complaints about Arafiles and sent him a letter reminding him that he may not perform unapproved procedures or use unapproved medications. Dr. Pham was so concerned that when the hospital insisted he approve Arafiles for full privileges against his wishes, he entered into an agreement with hospital administration that if he approved Arafiles they would allow him to terminate his own contract with them early should he wish. It seems that medical staff chief Pham was so concerned with having Arafiles on staff at this tiny 25 bed community hospital where physicians worked very closely together by necessity, that he insisted on having a difficulty free exit available. Indeed according to trial testimony Pham tried to exercise that option but the hospital reneged and enforced his contract. So, when Arafiles received notice from the Medical Board that a complaint had been filed against him concerning 10 patients he knew that someone on the inside, rather than the 10 patients individually, had likely filed the complaint. And he wanted to know who. Since the Medical Board wasn’t talking, how could he find out? “Let’s see”, he must have thought, “Who do I know that investigates things, has access to restricted records and information, can open doors and get things done, and who would do me a favor?”
Enter Winkler County Sheriff Robert Roberts, Arafiles’ golfing buddy, previous patient and 1/2 of a husband/wife team who were Amway-like distributors for a nutritional product, Zrii, promoted by Arafiles at numerous seminars held in the local community. Some of the complaints regarding Arafiles were centered around his ‘prescribing’ nutritional products he had a financial interest in to his patients (and also his obtaining email addresses of hospital patients to send them promotional materials without their consent). Arafiles goes to his friend the sheriff complaining that someone is out to get him and that any complaints against him have been dealt with at the hospital, and apparently that any complaint to the Medical Board is harassment. The sheriff seems to have bought this hook line and sinker. Since it is highly unlikely that Dr. Atafiles knew of, or understood Section 39.06(b) of the Texas Penal Code, his intentions were, at the least, to find out who complained. Who first proposed utilizing the sheriff’s office to take action against the complainant(s) once determined, we may never know.
What we DO know is that Roberts began an ‘investigation’ which was certainly official in nature complete with enlisting the investigative skills of Chief Investigator of the Winkler County Sheriff’s Office, James Swanson, search warrants and interviews of numerous witnesses, including the 10 patients mentioned in the complaint and dozens of staff members at the hospital. Roberts ran the investigation as his own rather than assigning it to a subordinate as would be usual procedure, claiming at trial that he did this because he was in his final term as sheriff, was aware of a previous conflict between hospital staff and Arafiles, did not want to cause political problems for his chief deputy who wanted to succeed him as sheriff, his chief investigator’s mother has worked at the hospital for 20 years, and if any “problems come up out of this” he would “take care of it”. From the outset the investigation centered on finding out who complained to the Board and whether they had ever previously expressed negative opinions about Arafiles. No portion of the investigation was dedicated to discovering whether the allegations in the complaint to the board were true.
When all was said and done, the sheriff decided Arafiles was being harassed based multiple erroneous assumptions and conclusions of law. He viewed an anonymous complaint to the Board as suspicious, believing the complainant must have something to hide. What he was unaware of, and failed to investigate, was that there were TWO complaints to the Board which were the basis for the notification sent to Arafiles, and that the 10 patients were the result of combining the patients cited in each, and that the Board knew the identities of both parties but had decided to hold them anonymous for the time being.
The sheriff lacked any understanding of the process for reporting and addressing concerns over quality of medical care, both within hospitals and to the state board. Rather than relying on Texas statutes which compel health care professionals to report violations of the medical or nursing practice acts, he choose to beleive that the policy of a hospital and it’s administrative decisions should be the controlling authority. He found that Mitchell and Galle were harassing Arafiles when once the hospital had reviewed their concerns and elected to take no action, a report to the State Medical Board was a redundancy which could only be explained by intentional harassment aimed at affecting his medical license. (See Sheriff’s Trial Testimony) Regardless of the sheriff’s misguided interpretation or ignorance of the laws of the State of Texas, county attorney Tidwell and assistant district attorney Fostel seemingly should have excelled in this area.
The complaint filed with the Board, anonymous or not, was filed with a government agency, for a governmental purpose defined in statute. This alone was how the official information was used. Even the Texas Medical Board wrote a strongly worded letter to the prosecutor expressing its “serious concerns” with their prosecution of the two nurses and stating with clarity that the filing of a complaint with the Board constitutes use of information for a governmental purpose. One has to really WANT TO GET a defendant in order to engage in the previously mentioned unique interpretation of the penal code seen in this case. Once it is understood that a complaint to the Board constitutes a governmental purpose, whether there was any intent to harm Arafiles (which there almost has to be when ANY complaint is sent to the Board since ‘harm’ is so vague, arguably the inconvenience and anxiety of responding to a complaint is harm), is irrelevant. So the prosecution HAD to come up with their novel ‘interpretation’ in order to proceed. For reasons which still tax the mind (unless one makes the leap to simply accepting ‘good ol’ boy’ favoritism rather than an ‘applying the law as written’ thought process), the prosecution team did so, then charged a crime and brought a defendant to trial. But only one defendant. Why not two?
Just when you thought you could be no more disgusted with the abuses of power in this case, another action by the prosecution sends you over the top. On July 7, 2009, not 30 days after the Grand Jury indictment, District Attorney Michael Fostel tries to make the whole thing disappear by promising in a letter to drop all charges if the now fired nurses will “accept their firing” and if the “nurses agree to not file any type of civil action against Winkler County Memorial Hospital, Winkler County Texas, any of its entities or employees”. So in a period of 3 months the sheriff took on the case, investigated it, enlisted Tidwell who went to the Grand Jury and got an indictment, the nurses were fired, arrested and charged, and the prosecutor asked them to promise not to sue in exchange for dropping charges. That something smells REAL bad here is obvious to your kitchen table. Not to mention the very questionable and quite possibly illegal bribe attempted by Fostel. We will drop a criminal prosecution if you promise not to sue us??? I wonder if he will claim a crime has been committed under Section 39.06(b) of the Texas Penal Code when HE is the subject of a well deserved complaint to the Texas Bar for this incredibly unethical act.
Of course Mitchell and Galle refused to accept his bribe which says all you need to know about their character. The charges against Galle were dropped suddenly just before trial. It is obvious that since she did not write the latter of complaint the charges against her were without merit. What is not so explainable is why the prosecution would charge her in the first place and then wait so many months to dismiss, all the while she incurred mounting legal bills and was fired.
In Part 1: The Beginning
In Part 2: The Quack, his buddy the Sheriff and the Crooked Arm of the Law.
In Part 3: Kangaroo Grand Jury, Indictment, You’re Fired.
In Part 4: Explanation of the Charges, Prosecution Team Shenanigans Exposed
Stay tuned for Part 5: The Trial, The Verdict, What Next?
, medical board
, anne mitchell
, rolando arafiles