June 16. 2013 12:12AM

Judge to allow trial in wrongful termination suit

New Hampshire Sunday News

A health policy analyst who says she was fired from the state Insurance Department two years ago for refusing to ignore competitive bidding to hire a consultant will have her day in court.

Leslie Ludtke's lawsuit against Insurance Commissioner Roger Sevigny and Deputy Commissioner Alexander Feldvebel can proceed as a wrongful termination case because of a recent ruling by Judge Larry Smukler in Merrimack County Superior Court.

Several of Ludtke's other claims, including being fired for being a whistleblower, were previously dismissed by the court.

"We're very pleased. It means we get our day in court," said her attorney, Charles G. Douglas. "She gets to be able to have a jury decide whether politics or competitive bidding rules should be the law of land."

Ludtke's duties included giving analytical and policy advice and recommendations to Sevigny, including how to implement the federal Affordable Care Act. The consultant was going to study setting up a health care insurance exchange under the ACA

Ludtke, who formerly served as associate attorney general, has been unable to find work since her termination, Douglas said.

After the Insurance Department issued a request for bid proposals to find the best insurance exchange model for the state and develop a plan to implement it, the department recommended Wakely Consulting Group, a Massachusetts firm.

But it was turned down by the Executive Council.

Ludtke says she was fired for disagreeing with Sevigny, who wanted to then offer a no-bid contract to another firm that would be more palatable to the council.

"They were trying to get around Wakely and get the contract to someone else. That's when (Ludtke) stepped up," Douglas said. "They said she was insubordinate."

Senior Assistant Nancy Smith, who represents the state Insurance Department in the lawsuit, said the court has made it clear that Ludtke was an employee who served at the will of the insurance commissioner.

As such, Ludtke has no grounds to sue the state, Smith said.

"(The commissioner) didn't have to have cause to terminate her, and it was not in bad faith, with malice or in retaliation," Smith said.

But Douglas disagreed.

"It is a bad-faith firing because she was trying to defend the competitive bidding laws," Douglas said.

"After the Insurance Department ran into political problems, they wanted her to come up with a solution that went around competitive bidding laws."

In denying the Insurance Department's motion for summary judgment, Smukler wrote that Ludtke continued to work with her bosses to "propose an alternative that would not run afoul of New Hampshire competitive bidding law," but was suspended and ultimately terminated.

Ludtke disagreed in her suit, saying that during the termination process, "the defendants harassed her and acted with malice," Smukler wrote.

Because the pleadings document "a genuine dispute of the material facts underlying (Ludtke's) termination," Smukler denied the motion to find in favor of the state.

Instead, the case is scheduled to go to trial in January.