— By Brad Friedman

In a statement given to the media last week, in response to a federal fraud/false claims act qui tam suit finally unsealed last week, a representative from the defendant, voting machine company, Hart InterCivic, alleged the suit’s whistleblower, William Singer, was a “disgruntled employee.”

Employee “Performance Evaluation” records written by company management, included in the complaint itself, however, would seem to strongly contradict the claims of company spokesperson Pete Lichtenheld, as given to a reporter last week.

Additional claims by Lichtenheld, as reported by Kim Zetter at Wired’s Threat Level blog on Thursday, are also dispelled by a document from the U.S. Dept. of Justice, obtained by The BRAD BLOG. The DoJ, after requesting and receiving extensions for two years, has finally decided against joining the federal qui tam suit, for the time being, allowing it to become unsealed last week, so that it may now move forward in federal district court.

The lawsuit, posted in full by The BRAD BLOG after it became unsealed last Thursday, details an extraordinary list of fraudulent behavior by Hart InterCivic, as related by one-time employee Singer, who alleges the company deceived Election Officials in Texas, Ohio, Colorado, and elsewhere in hopes of receiving federal monies as distributed via the Help America Vote Act of 2002.

Allegations made in the suit include stunning revelations that Hart failed to test its products properly, and frequently at all, withheld information from prospective clients about the potential loss of votes in its voting systems, dummied-up machines, reports, and test results presented to clients in sales presentations, and much more in an attempt to win state and county contracts.

Much of the response to the suit by company spokesperson Lichtenheld, however, is easily dismissed upon examination of the evidence so far available in the case…

The Old “Disgruntled Employee” Card

Wired’s Zetter reported last week that the Hart spokesperson attempted to downplay concern about the case by claiming that “none of Singer’s allegations are true” and that Singer was a “disgruntled employee who had trouble getting along with fellow workers.”

Yet, a quick read of the 45-page complaint itself [PDF] reveals that Singer — who at times served as the company’s only computer technician during the several years he worked there– received high marks from the company in employee evaluations, which found him to be “highly effective” in his many roles at the company, and describe his “tireless dedication and willing spirit” on the job.

From the complaint:

The document goes on to detail Singer’s key role within the company, where he worked — often accompanying company executives during sales presentations — from November 2001 until January 2004, when he “resigned from Hart under protest, citing many of the fraudulent
acts and misrepresentations giving rise to this action,” according to the complaint.

Singer’s 2002 Performance Review, referenced in the complaint as Exhibit 7, goes on to sing his praises on a host of scores, indicating the company’s high degree of faith and appreciation for Singer’s work at the time. That review is available in full here [PDF].

When he resigned, his detailed, 5-page resignation letter (Exhibit 8 with the complaint, as available here [PDF]), says that he was leaving “[d]ue primarily to unresolved ethical differences” with Hart. The complaint points out that his letter “cited specific acts of misconduct and fraud and closed with his hope that this letter has some positive impact in creating change . . . so that I am the last person that has to leave for the sake of their conscience.”

Lichtenheld told Zetter that “Singer left the company in 2004,” adding, “I think it’s interesting (that) that’s four years ago. It’s a good sign of the depth of his disgruntlement.”

Though Lichtenheld failed to note that Singer had attempted, as early as July 2004, to notify the Secretaries of State of both Texas and Ohio about his numerous and serious concerns about what he described as criminal behavior, false claims, and fraud by the company. Indeed, when The BRAD BLOG originally posted Singer’s letters to OH and TX in full in July of 2006, he told us he had shared his resignation letter with many people when he left, so the company would not later be able to label him successfully as “disgruntled.”

“At the time of my resignation,” he told us in 2006, “I provided several people with my resignation letter, so everyone knew that I had resigned and given notice. I wasn’t fired.”

He also pointed out that he was soon thereafter hired by Tarrant County, Texas — which had a close relationship with Hart — to program its voting systems. “Would Tarrant county have hired me to be their Election Programmer if I had been fired by Hart?” Singer pointed out to us in our original 2006 report.

DoJ Faith

In Lichtenheld’s comments to Zetter, he also attempted to downplay both the severity of the allegations, and the competency of the attorneys who filed the suit. Both claims are also easily dispelled.

“The government didn’t join the lawsuit, so that’s a sign right there of the lack of faith they have in this lawsuit,” the spokesperson told Wired, in reference to the DoJ chosing not to excercise their option to join the case after two years. Federal qui tam suits are filed by a “Relator,” in this case, the whistleblower Singer, on behalf of the United States of America, which then has 60 days to decide if it wishes to join the suit along with the Relator. The DoJ asked for, and received, extension after extension from the court while deciding whether or not to join, for nearly two years since the case was originally filed and sealed.

Contrary to Lichtenheld’s assertion, however, the DoJ’s 3-page letter, finally declining to join the case, as obtained by The BRAD BLOG and available here [PDF] notes specifically, in its first point, that their decision to decline does not reflect their “faith” in the merits of the case as Litchtenheld charges.

“Our decision to decline should not be construed as a statement about the merits of the case,” the DoJ’s Robert McCauliffe writes in the letter to Singer’s attorney, Matt Schultz. “Indeed,” McCauliffe continues, “the Government retains the right to intervene at a later date upon a showing of good cause.”

Additionally, Levin Papantonio told us last week that “the fact that DoJ declined to join the case does not deter us for a moment.”

Hart InterCivic: An American Company

Finally, for now, the last, and perhaps most pathetic, claim by Lichtenheld was a seeming attempt to take a shot at the competency of the attorneys who filed the suit, which claims on page 2, that “Defendant Hart InterCivic, Inc. is a foreign corporation that has since 2000 been registered to do business in Colorado.”

Zetter reports that, in response, “Lichtenheld adds that Hart InterCivic is not a foreign company but is wholly owned by Americans.”

While it may be the first time that Lichtenheld has been asked to respond to such a lawsuit, Levin Papantonio confirmed to The BRAD BLOG that “foreign corporation,” in such a suit, refers to the fact that Hart, “whose principal office is in Texas,” according to the very next line of the lawsuit, is a “foreign” company to Colorado, where the lawsuit has been filed in federal district court.

UPDATE/CLARIFICATION 4/7/08: Wired’s Kim Zetter writes, in regard to the final section above, concerning our points about the “foreign corporation” comment, to say that the matter was not one raised by Hart. Rather, it originated with her own, understandable, original confusion about the term after noting it in the complaint. During her conversation with Hart’s spokesperson Lichtenheld, she says, it was she who asked him whether or not the company was, literally, owned by a foreign outfit. (Foreign ownership of voting machine companies has been an issue in the past, with companies such as Sequoia for example. Details here.) Lichtenfeld, who was also unaware of this particular legal use of the phrase, explained to her, in response, that Hart was American owned. Zetter notes, therefore, that is inaccurate to characterize the exchange as one where Lichtenheld or Hart were “tak[ing] a shot at the competency of the attorneys who filed the suit,” as we suggested. Our contention that it was a “seeming attempt” to do so, she explained, would not be an accurate conclusion to take from her report on that particular matter. We thank Zetter for that clarification.