ProPublica

by Brandi Kellam, Virginia Center for Investigative Journalism at WHRO, and Gabriel Sandoval, ProPublica

This article was produced for ProPublica’s Local Reporting Network in partnership with the Virginia Center for Investigative Journalism. Sign up for Dispatches to get stories like this one as soon as they are published. This story was co-published with Virginia Center for Investigative Journalism at WHRO and The Chronicle of Higher Education.

This past May, we were working on a story about how the establishment and expansion of Virginia’s Christopher Newport University dismantled a vibrant Black neighborhood. When we asked university officials for archival material, we encountered something we hadn’t heard about before. We learned that in Virginia, the papers of state university presidents are largely exempt from public records laws.

We asked for several boxes containing some of the papers of Paul Trible, the university’s president from 1996 to 2022, which pertained to real estate acquisitions, board meetings and development projects. Since the city of Newport News seized the core of the Black community for a new campus in the early 1960s, Christopher Newport has bought almost all of the remaining homes there.

We hoped the records would show how Trible’s administration obtained properties in the Shoe Lane area abutting the campus and reveal any internal debates about its actions. We wanted to know whether the university encouraged or pressured homeowners to sell and whether it used or threatened to use eminent domain, the government’s right to forcibly purchase private property for public use.

As a public institution, Christopher Newport is subject to the state public records law. But the university would not let us see the vast majority of Trible’s documents. It cited a 49-year-old amendment, section 2.2-3705.7 of the Virginia code, exempting the “working papers and correspondence” of “the president or other chief executive officer of any public institution of higher education in the Commonwealth” from disclosure. Since Trible, now a Christopher Newport distinguished professor, was unavailable for an interview, the lack of access to his communications left unanswered questions, such as why the university’s governing board approved taking properties by eminent domain in 2005 after he publicly said there was no need to do so.

Virginia may have the broadest and most explicit exemption for college presidents’ papers in the country, based on a guide from the Reporters Committee for Freedom of the Press. While university presidents have said that public scrutiny would hamper frank dialogue and “reflective” decision making, the exemption renders their perspectives — and the schools’ inner workings — less visible to the media and Virginia taxpayers. Legislative proposals to repeal or narrow it have failed in the face of opposition from the higher education lobby.

Virginia universities aren’t required to invoke the exemption — they can provide the information if they choose. But we were far from the first journalists to be thwarted by this provision. It came into play in 2006 when Old Dominion University rejected a request from a Virginia newspaper for an evaluation prepared for its president of a mandatory course that students had criticized. William & Mary cited the exemption in 2007 in denying requests from news outlets and alumni related to a donor’s decision to revoke $12 million in pledges, though it later reversed itself and released a sought-after email. Also, in 2022, William & Mary withheld 17 pages from a public radio reporter seeking information about “lab school design concepts.” And the University of Virginia wielded the exemption during a firestorm in 2014 over a Rolling Stone article, which was subsequently retracted, about an alleged rape on campus.

Moreover, as Christopher Newport’s denial of our request for some of Trible’s papers highlights, the amendment doesn’t say how far back the exemption goes or whether it applies to former presidents. Open records advocates said that, based on their reading of the statute, the exemption should only apply to ongoing deliberations. Nearly 30 states protect such deliberations by university officials from disclosure.

“The intention of this exemption was to provide decision-makers with some breathing room to make decisions,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government, a nonprofit that presses for access to public records. “It was never intended to be a black box in which all their papers and correspondence get put into and locked away forever.”

But the Virginia Freedom of Information Advisory Council, a state agency that helps resolve public records disputes, has taken the position that the statute’s silence makes it impossible to set a time limit. “FOIA doesn’t address everything,” senior attorney Joseph Underwood said. “There are dark corners.”

In a 2004 opinion, the council’s executive director wrote that any cutoff date “would require clear language of intent from the General Assembly that the exemption no longer applies after a certain number of years after the creation of a record.”

Asked about Christopher Newport’s use of the exemption, university spokesperson Jim Hanchett said in a statement that the university “is committed to meeting its open government obligations and at all times acting in accordance with the Commonwealth of Virginia’s open record laws.”

In a Sept. 18 message to faculty and staff, Christopher Newport president Bill Kelly acknowledged that the university’s progress “has come at a human cost, and we must continue to learn about and understand our complicated history.” The city chose a site for Christopher Newport, which was then a branch of the Colleges of William and Mary system, on land “that was home to a valuable and well-established neighborhood,” Kelly wrote. “The residents of that neighborhood, most of them African Americans, lost their homes, many due to the use of eminent domain.” This “important chapter … is appropriately receiving renewed attention,” he added in an apparent reference to our Sept. 5 article.

Like Christopher Newport, Old Dominion and UVA have grown by displacing Black residents. An Old Dominion spokesperson said that it has focused on improving relations with the surrounding neighborhood and that students of color now make up the majority of its enrollment. UVA has established presidential commissions to examine its role in slavery and segregation, and has set a goal of developing 1,500 affordable units in university properties. Those schools also said that they abide by state public records law, giving similar explanations to Christopher Newport’s. William & Mary said it follows guidance from the Virginia Freedom of Information Advisory Council and gives “careful consideration” to “the documents requested and the context in which they were created and have been used.”

To be sure, several states including Pennsylvania and Delaware go even further in shielding universities, though they don’t single out presidential papers. In Pennsylvania law, four universities — Penn State, the University of Pittsburgh, Temple University and Lincoln University — are categorized as “state-related” rather than “state-affiliated,” a distinction that exempts them from disclosing most information. The University of Delaware and Delaware State University are not considered “public bodies” under Delaware law, though they receive taxpayer funding.

Enacted in 1968, Virginia public records law exempts officials such as the governor, the lieutenant governor, the attorney general, state legislators and mayors. It added university presidents to the list in 1974, even as the Watergate scandal was prompting calls for increased transparency. James T. Edmunds, a Democratic state senator and a graduate of the University of Richmond’s law school, introduced the change. It was a turnaround from a stance Edmunds had taken the previous year, when he had supported a bill to make public the actions taken by university governing boards, saying that news reporters deserved more access.

After leaving the state Senate, Edmunds served on the board of the Virginia community college system and practiced law. His career came to an abrupt halt in 1987 when he admitted to stealing more than $170,000 from clients. He served 10 months in prison and surrendered his law license, which was reinstated in 1995. Edmunds died in 2008.

It’s unclear why Edmunds proposed the presidential exemption. His widow, Harriett Edmunds, who worked as a legislative aide before they were married, said she didn’t recall. “I do know that he was interested in the community college system,” she said. “That was one of his major, major interests.”

A November 2014 Rolling Stone article indirectly fueled a debate over Virginia’s presidential exemption. The article, which concerned an alleged rape at a University of Virginia fraternity, was discredited and retracted. But news outlets, hoping to sift fact from fiction and learn how the university handled sexual misconduct cases, barraged UVA with requests for its president’s correspondence. UVA deflected them, citing the exemption. A spokesperson said the university no longer has copies of those requests.

Amid the fallout, two legislators filed proposals in 2015 to eliminate the presidential exemption. Then-delegate David Ramadan, a former member of George Mason University’s governing board, who sponsored one of the bills, told us that he “thought there were a lot of good things” university presidents “were doing that should be out in the public and shouldn’t be hidden.”

The bills died in committee, but the Virginia Freedom of Information Advisory Council took up the issue. College presidents fought back, arguing that secrecy was needed to foster candid discussions. “The removal of this exemption would hinder our ability to embrace reflective decision-making,” the Council of Presidents wrote in July 2015. “As the law currently allows, neither university presidents nor those that advise us are inhibited in communication due to fear of our preliminary discussions becoming public and thus inaccurately reported, taken out of context, viewed as final when far from it, and quite possibly politicized.” The letter did not address the exemption’s use to shield the papers of former presidents.

Among the signatories to the letter was Trible, Christopher Newport’s then-president. A former Republican politician and U.S. senator, he was Christopher Newport’s longest-serving president; its library is named for him and his wife. Ultimately, the advisory council called for tightening the exemption by limiting it to “working papers” and making available the correspondence of presidents and other officials, but the legislature didn’t adopt the recommendation.

Despite Christopher Newport’s denial of our request for Trible’s papers, our reporting continued to raise questions about his role in uprooting Black families. For example, we learned that, although university officials had vowed not to pressure residents to sell, Trible wrote to at least one homeowner, encouraging sales talks.

In July, we sent another request to Christopher Newport. We were interested in a house on Prince Drew Road, long owned by a Black family, that the university’s board had approved taking by eminent domain for a parking lot during Trible’s administration. A university spokesperson told us that its real estate foundation bought the building without resorting to eminent domain, but we wanted to learn more.

In response, the university said it had two pages of presidential correspondence about the property. It refused to give us those pages, citing the exemption. Trible again could not be reached for comment, and a university spokesperson did not respond to our request to contact him.

Louis Hansen of the Virginia Center for Investigative Journalism at WHRO contributed reporting.

by Robin Urevich, Capital & Main, with additional reporting by Gabriel Sandoval, ProPublica

This article was produced for ProPublica’s Local Reporting Network in partnership with Capital & Main. Sign up for Dispatches to get stories like this one as soon as they are published.

The Los Angeles Housing Department is proposing to significantly increase staff and double the frequency of inspections of residential hotels in an effort to stop some landlords from renting the low-cost housing to tourists in violation of city law.

The recommendations, detailed in a report to the mayor’s office last month, follow an investigation by Capital & Main and ProPublica that found some residential hotel owners had turned their buildings into boutique hotels and were advertising nightly rentals on travel websites.

Since taking office in December, Mayor Karen Bass has made a major push to tackle the city’s housing and homelessness crisis by providing shelter for people living on the streets and speeding up construction of new affordable housing.

The city has paid less attention to preserving some of its already existing low-cost housing in residential hotels. Some 300 such buildings — which typically consist of basic single rooms, sometimes with shared bathrooms — were protected under a 2008 city ordinance. The law requires landlords to keep the buildings for long-term tenants or replace the units by building new ones or paying into a city housing fund.

But until recently, the law has gone largely unenforced. In response to the news organizations’ findings that 21 residential hotels were marketing rooms to tourists, Bass’ office requested that the Housing Department investigate the hotels. The department has since sent warning letters to 17 of the hotels and fined 13 of them. Nearly all the hotels have appealed the city’s enforcement efforts, and some have sued the city in federal court.

The mayor’s office also asked the Housing Department to report on how the lack of enforcement occurred and to make recommendations to prevent it from happening in the future. In the report, Ann Sewill, the Housing Department’s general manager, and Anna Ortega, an assistant general manager, blamed short staffing. They said that the department has only one inspector to oversee all 300 residential hotels across the city’s 487 square miles, and that his priority had been the conditions of the buildings.

“With additional resources and support, LAHD can dramatically and successfully elevate its ability to stop rogue property owners from violating the Residential Hotel Ordinance and undermining the availability of the housing stock,” they wrote to Mercedes Márquez, the mayor’s chief of housing and homelessness solutions.

In addition to more frequent inspections, Housing Department managers said they’ve requested funding for five residential hotel inspectors and two support staff in next year’s budget. They plan to continuously monitor online advertising and use “stakeouts” to collect evidence of tourist activity at hotels. They also want the city attorney’s office to have more resources to investigate cases and defend against lawsuits.

LA Deputy Mayor of Housing Jenna Hornstock said the Housing Department has taken “comprehensive” and “meaningful steps” toward residential hotel enforcement. More funding for enforcement, she said, will involve “hard conversations about the resources that we have and how we can best allocate them.”

The department said it would soon complete an audit of all of the city’s residential hotels to determine whether they are placing tourist ads. If it finds such ads, the department said it can use the city attorney’s administrative citation enforcement system to quickly sanction violators. However, the $527 fines — designed to keep minor offenders out of court — are relatively light. Maximum penalties for noise complaints or drinking in public are nearly double that amount.

Deepika Sharma, a University of Southern California law professor who directs the school’s housing law and policy clinic, said the Housing Department’s proposed approach won’t have teeth unless the city uses its legal authority to sue hotel owners who routinely ignore citations.

“It takes important impact cases to make a difference,” Sharma said, because taking a repeat violator to court sends a message that deters others. But she said the city attorney’s office hasn’t routinely done that.

Past attempts to enforce the residential hotel law from 2016 to 2018 fizzled when housing inspectors issued citations but failed to follow up on them. Afterward, the hotels continued to offer their rooms for short-term rentals in violation of the department’s orders.

The 17 hotels that were recently cited are also appealing to the Housing Department to reconsider their residential hotel status altogether. Sewill and Ortega said the department will hear all appeals by Nov. 30.

Barbara Schultz, director of housing justice at the Legal Aid Foundation of Los Angeles, questioned whether such appeals are permitted. She pointed out that the ordinance specifies that owners have 60 days after they’re notified of their residential hotel status to challenge the designation. The Housing Department made those notifications between 2008 and 2014.

“I’m curious as to why they’re allowing appeals at this point,” she said. “That’s a lot of units that could potentially be lost.”

Meanwhile, the owners of 12 of the residential hotels have sued the city in federal court in Los Angeles, alleging the Housing Department has infringed on their constitutional protections against unreasonable searches and seizures and government taking of private property.

Frank Weiser, the attorney who represents the owners, said in a text message he would not comment on the cases, “given the pending litigation with the city.” Weiser has unsuccessfully challenged LA’s residential hotel law at least twice in the past.

Ivor Pine, a spokesperson for the city attorney’s office, said the lawsuits won’t have an effect on the city’s current enforcement of the residential hotel law. He declined to comment on the lawsuit’s allegations.

Hornstock said the mayor’s office is currently working on setting Housing Department priorities for the coming year, including whether it can meet the department’s request for a beefed-up enforcement budget.

by Mark Olalde

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Update, Oct. 10, 2023: Gov. Gavin Newsom on Saturday signed AB1167 into law. “I share the author’s desire to minimize the risk that the state will be liable for costs of plugging and abandonment of orphaned and abandoned oil and gas wells,” he wrote to the Legislature. However, he added, future amendments to the legislation might be needed to ensure it does not inadvertently push existing oil companies to walk away from their wells.

The California Legislature recently passed a bill that would provide the state’s taxpayers some of the strongest protections in the nation against having to pay for the cleanup of orphaned oil and gas wells. But Gov. Gavin Newsom has not indicated if he will sign it.

AB1167 would require companies that purchase idle or low-producing wells — those at high risk of being left to the state — to set aside enough money to cover the entire cost of cleanup. Assemblymember Wendy Carrillo, a Los Angeles Democrat who authored the bill with the support of the Natural Resources Defense Council and Environment California, said it’s needed to “stem the tide” of orphaned wells.

Newsom has until Oct. 14 to make a decision. A spokesperson declined to comment, saying the governor would evaluate the bill “on its merits.” The state’s Department of Finance released a two-page analysis opposing it.

It costs more than $180,000 to clean up an average orphan well in California, the state told the U.S. Department of the Interior in 2021, according to documents ProPublica obtained via a public records request. This includes plugging the well with cement, removing aboveground infrastructure like pumpjacks and decontaminating the site. But bonds, which are financial instruments guaranteeing to pay for cleanup, cover only a tiny fraction of that cost. A ProPublica analysis of state data found that oil and gas companies have set aside only about $2,400 per well. (State oil regulators are currently reevaluating companies’ bonds to increase them within existing law, which does not mandate that they cover the entire cleanup cost.)

Left unplugged, many wells leak climate-warming methane, brine and toxins that were used in the drilling process.

“It’s a setup for disaster,” said Ann Alexander, a Natural Resources Defense Council senior attorney.

The bill follows ProPublica’s reporting on the exodus of oil majors from the state’s declining industry — one sale last year saw more than 23,000 wells move from Shell and ExxonMobil to a little-known German asset management group called IKAV — and on the multibillion-dollar cost to clean up the industry. ProPublica’s work was repeatedly cited by the Legislature and the bill’s supporters.

Despite its green reputation, California has a long history of weak oversight of its oil and gas industry, which has left behind an estimated 5,300 orphaned wells. Many are scattered across Los Angeles, complicating redevelopment. Others spew methane in Kern County’s huge oilfields.

Companies have little incentive to plug wells; it’s cheaper to sell or to walk away and forfeit the small bonds currently required by the state.

“It’s too easy for them right now to offload those unproductive oil wells to newer or less-resourced companies that may turn around and go bankrupt and that don’t have the adequate financial capacity to do the job of cleaning up,” said Laura Deehan, director of Environment California.

The Western States Petroleum Association and California Independent Petroleum Association industry trade groups warned state lawmakers that “this misguided bill will increase the number of orphan oil wells in California.” The organizations argued that requiring bonds that cover the full cleanup cost would dissuade sales to companies hoping to enter the market. This, in turn, could lead to well owners getting stuck with the expensive cleanup, causing insolvency and ultimately leaving the wells with the state.

Dwayne Purvis is a petroleum reservoir engineer who authored a study that estimated it would cost as much as $21.5 billion to clean up California’s oil industry. He pointed out that the most common type of bond — a surety policy — is similar to insurance guaranteeing a well will be plugged, so oil companies wouldn’t have to set aside the full cleanup cost in cash to comply with AB1167. Federal regulators recently found these bonds are relatively cheap.

If that stops companies from buying wells in California, Purvis said, then there’s a bigger problem: “This admits — implicitly but almost inescapably — that the cost of plugging exceeds the value of remaining production,” he told ProPublica via email.

A Western States Petroleum Association spokesperson did not address questions about its claims. The California Independent Petroleum Association did not respond to requests for comment.

In negotiations over the bill, according to people present, the trade associations pointed to one example in particular to highlight why the legislation would create more orphan wells — the sales of some of the more than 750 wells orphaned following bankruptcy filings by multiple entities in the Greka group of companies. The sales, the industry argued, presented an opportunity for the wells to be plugged by an oil company, not the state.

However, hundreds of the wells remain on the orphaned list to this day, only they’re now associated with a new company: Team Operating.

Greka’s CEO and Team Operating didn’t respond to emails requesting comment.

The bill does carry a potential loophole, experts cautioned: whether the increased bond requirements in the bill would apply to wells transferred through shell companies, as is often the case.

The state Department of Finance’s opposition to the bill relied on three arguments.

The agency’s report claimed that large companies with enough resources to plug wells are coming into the California market. But research shows these producers are exiting the state and handing off their aging, unprofitable wells to smaller companies that are less likely to be able to afford cleanup.

Its analysis also suggested that bond underwriting companies are “becoming hesitant” to do business in California. Purvis said that if these companies believe the situation is too risky to guarantee cleanup costs will be paid, “then the taxpayers of California probably should not extend producers the same credit.”

Finally, the report argued the bill is unnecessary because California regulators already have the authority to recoup plugging costs from wells’ previous owners.

While existing law gives the state this authority, it only applies to wells transferred after Jan. 1, 1996. Oil drilling in California dates back to the 1860s, and many thousands of wells were sold prior to the law’s cutoff, meaning the state can’t go after the wells’ former operators.

ProPublica reviewed the state’s list of orphaned wells and found numerous examples of well cleanups being left to taxpayers despite the wells being sold after 1996. In those cases, the state either hasn’t used its authority or has otherwise failed to secure plugging funds.

Department of Finance analysts referred questions to the state’s oil regulators, who were the source for much of the report. A spokesperson for the California Geologic Energy Management Division said state regulators have obtained money from previous owners on occasion.

But going after older operators is difficult, said Rob Schuwerk, a former New York assistant attorney general and the North American executive director of the energy finance think tank Carbon Tracker Initiative, and bonds are guaranteed money.

“There’s no better substitute for having the cash,” he said.

by John Harwood for ProPublica

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President Joe Biden said Friday that he was not fully confident that the current U.S. Supreme Court, which he described as extreme, could be relied on to uphold the rule of law.

When asked the question directly, Biden paused for a few seconds. Then he sighed and said, “I worry.”

“Because,” he said, “I know that if the other team, the MAGA Republicans, win, they don’t want to uphold the rule of law.”

But he said, “I do think at the end of the day, this court, which has been one of the most extreme courts, I still think in the basic fundamentals of rule of law, that they would sustain the rule of law.”

Still, Biden said the court itself should recognize it needs ethics rules after stories by ProPublica revealed that billionaires had given undisclosed gifts to Supreme Court justices and that Justice Clarence Thomas has made appearances at events for donors to the Koch political network. The code of conduct that applies to other federal judges doesn’t apply to the Supreme Court. “The idea that the Constitution would in any way prohibit or not encourage the court to have basic rules of ethics that are just on their face reasonable,” Biden said, “is just not the case.”

The discussion was part of a rare formal interview on a topic the president has laid out as a priority: How America’s democracy is under siege. Seated in the Roosevelt Room of the White House on Friday afternoon, Biden seemed relaxed and confident, batting back a question about why he thinks he’s the only Democrat who can protect democracy next year, especially given voter concerns with his age: “I’m not the only Democrat that can protect it. I just happen to be the Democrat who I think is best positioned to see to it that the guy I was worried about taking on democracy is not president.”

Biden cast the threat to democracy posed by Donald Trump’s 2024 candidacy as a resistance movement animated by fear of change. “I think Trump has concluded that he has to win,” Biden said, noting the rising vitriol in the embattled former president’s rhetoric. “And they’ll pull out all the stops.”

Biden linked the attempt by House Republicans to bring Washington to “a screeching halt” through a government shutdown to Trump’s effort to regain the presidency. He warned against the desire of “MAGA Republicans” — which he called a minority of the GOP, much less the nation as a whole — to weaken institutions such as the federal civil service to shift power over the U.S. government toward the president alone. Trump has promised his supporters to “be your retribution” in a second term.

The drama over a government shutdown resulted from the “terrible bargain” Republican Speaker Kevin McCarthy made with extremist colleagues to secure his job, Biden said. “He’s willing to do things that he, I think, he knows are inconsistent with constitutional processes.” He added: “There is a group of MAGA Republicans who genuinely want to have a fundamental change in the way that the system works. And that’s what worries me the most.”

Biden faulted his Democratic Party for failing at some points to respond effectively to one of the wellsprings of the anti-democratic threat: the anxieties of Americans, most conspicuously blue-collar white men, unsettled by economic, cultural and demographic change.

What’s needed isn’t so much economic benefits as “treating them with respect,” said Biden, who has emphasized his middle-class Scranton, Pennsylvania, upbringing throughout his political career. “The fact is, we’re going to be very shortly a minority-white-European country. Sometimes my colleagues don’t speak enough to make it clear that that is not going to change how we operate.”

Biden expressed confidence that the majority of the Republican Party and the nation itself would ultimately safeguard the American experiment. But he exhorted them to “speak up” in opposition to the increasingly menacing rhetoric Trump has deployed in response to his legal peril.

“[Do] not legitimize it,” he said. He added, in what seemed a reference to the vitriol aimed at jurors and potential jurors in trials for the Jan. 6 insurrection and Trump-related cases, “I never thought I’d see a time when someone was worried about being on a jury because there may be physical violence against them if they voted the wrong way.”

He encouraged Americans concerned about democracy to be “engaging” more with family, friends and acquaintances who have embraced extremism. Even more urgent, he added, is voting in next year’s presidential election. “Get in a two-way conversation,” he said. “I really do believe that the vast majority of the American people are decent, honorable, straightforward. … We have to, though, understand what the danger is if they don’t participate.”

ProPublica also asked Biden whether his former Senate colleague Joe Lieberman is upholding democracy by working with an organization called No Labels to pursue a potential third-party candidacy. “Well, he has a democratic right to do it. There’s no reason not to do that. Now, it’s going to help the other guy. And he knows [that]. … That’s a political decision he’s making that I obviously think is a mistake. But he has a right to do that.”

Biden was asked whether Fox News and other outlets that spread falsehoods about the 2020 election drive the threat that he’s concerned about or simply reflect sentiment that already exists. Both, Biden said: “Look, there are no editors any more. That’s one of the big problems.” Without providing detail, he suggested that reporters on outlets such as Fox are just doing what they’re told.

In response to a question about whether the decision by Elon Musk, the billionaire owner of X (formerly Twitter), to lower guardrails against misinformation contributes to the problem, Biden said, “Yeah, it does.” Biden noted that the invention of the printing press had effects that are still felt today. He suggested something similar was happening with the internet. “Where do people get their news?” he continued. “They go on the internet. They go online … and you have no notion whether it’s true or not.”

by Paul Kiel

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The Justice Department announced criminal charges on Friday against a former IRS contractor for leaking confidential tax information to two unnamed news organizations.

The DOJ’s description of one of those leaks appears to refer to the trove of IRS data that ProPublica used to report its “Secret IRS Files” series. The vast dataset contained details on thousands of wealthy Americans, and ProPublica reported dozens of stories based on an analysis of it.

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“As we have said from the beginning, we do not know the identity of the source, so we have nothing further to say about the charges filed today,” Stephen Engelberg, ProPublica’s editor in chief, said.

The DOJ’s description of the second leak, information regarding “a high-ranking government official,” appears to match The New York Times’ reporting on the taxes of Donald Trump. A spokesperson for the Times did not immediately respond to a request for comment.

The former IRS contractor, Charles Littlejohn, 38, of Washington, D.C., was charged with a count of disclosing tax return information, a felony that carries a maximum sentence of five years. Littlejohn’s attorney declined to comment.

For an overview of the main findings from ProPublica’s “Secret IRS Files” series, see “Ten Ways Billionaires Avoid Taxes on an Epic Scale.”

by John Harwood for ProPublica

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President Joe Biden said in an interview on Friday that House Speaker Kevin McCarthy had made a “terrible bargain” and that “in order to keep the speakership, he’s willing to do things that he, I think, he knows are inconsistent with the constitutional processes.”

Asked about the looming government shutdown, and the impeachment inquiry that McCarthy agreed to authorize in the hopes of keeping right-wing Republicans from ousting him from his post as speaker, Biden criticized the role of a “group of MAGA Republicans who genuinely want to have a fundamental change in the way that the system works. And that’s what worries me the most.” He marveled that former President Donald Trump had described himself in a recent speech as “retribution” on behalf of his supporters, and that Republicans “seem to be encouraging it.”

The comments came as part of a wide-ranging interview with ProPublica contributor John Harwood that will be published Sunday morning. In it, Biden discussed everything from what he portrayed as looming threats to democracy, including his views of the roles played by Fox News and Elon Musk, to his concerns about the need for ethics reform on the Supreme Court.

by Heather Vogell

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After months in which indictments in four successive criminal cases against Donald Trump raised the stunning, if distant, prospect that a former U.S. president could be put behind bars, it was the seemingly less momentous civil case in New York that this week generated the most tangible consequences so far: A dramatic fraud ruling that, if it survives appeal, could strip Trump of a chunk of the business empire that not only made his fortune but provided him with his very identity.

New York State Supreme Court Justice Arthur Engoron, having previously made a preliminary finding that Trump, his sons and some Trump Organization executives “had a propensity to engage in persistent fraud by submitting false and misleading Statements of Financial Condition,” granted a partial summary judgment in favor of the state of New York. “Even with a preliminary injunction in place,” his lacerating opinion noted, “and with an independent monitor overseeing their compliance, defendants have continued to disseminate false and misleading information while conducting business.”

Engoron canceled certificates for Trump entities controlling some of the former president’s properties, which they need to operate legally in New York. Trump could also be required to give up a portion of profits linked to the properties, depending on the outcome of a civil trial that is scheduled to start next week. An appeals court on Thursday said the trial can proceed without delay.

The seeds of the state’s case date back to 2019. In February of that year, former Trump lawyer Michael Cohen claimed in a congressional hearing that Trump had manipulated the values of his assets. “It was my experience that Mr. Trump inflated his total assets when it served his purposes, such as trying to be listed amongst the wealthiest people in Forbes,” Cohen testified, “and deflated his assets to reduce his real estate taxes.”

On Oct. 16, 2019, ProPublica published a story that revealed a series of “stark” inconsistencies between what the Trump Organization had reported to property tax authorities about the financial health of his landmark skyscraper at 40 Wall St. and what the company told lenders. The discrepancies made the building appear more profitable to the lenders, and less so to city tax officials. A real estate and finance professor told ProPublica at the time that the discrepancies were “versions of fraud.” Former New Jersey Attorney General Anne Milgram said, “Certainly, if I were sitting in a prosecutor’s office, I would want to ask a lot more questions.”

On Dec. 7, 2019, according to Engoron’s ruling, New York Attorney General Letitia James subpoenaed the Trump Organization. Three years later, the state sued, claiming that Trump, his company and his associates grossly misstated the value of some of his properties on statements of financial condition shared with lenders and insurers. They included 40 Wall Street, Trump Tower, Trump Park Avenue, his Seven Springs Estate in Westchester, Mar-a-Lago and property near his Scottish golf course in Aberdeen.

In this week’s ruling, Engoron called James’ evidence “conclusive.” Between 2014 and 2021, he wrote, Trump and others overvalued his assets by $812 million to $2.2 billion.

In a social media post, Trump called the accusation that he committed fraud “ridiculous and untrue” and called Engoron “DERANGED.” James is a Democrat, and Trump has maintained her investigation is politically motivated. He has denied wrongdoing.

At 40 Wall Street, Engoron’s decision said that in 2015, Trump Organization statements of financial condition overstated the property’s value by nearly $200 million. Though the company had received an appraisal in 2015 saying the building was worth $540 million, which James contended itself might have been an inflated amount, Trump statements of financial condition put the value at $735.4 million that same year.

In a November 2019 story, ProPublica also found discrepancies in the amount of commercial space the Trump Organization claimed was occupied in Trump Tower — differences that made it appear in statements to a lender that the building was financially healthier than it seemed in documents provided to tax authorities.

Engoron’s decision said Trump also submitted statements of financial condition that described the roughly 11,000-square-foot triplex apartment where he has lived in Trump Tower as nearly three times the size it is, the judge said. “A discrepancy of this order of magnitude, by a real estate developer sizing up his own living space of decades, can only be considered fraud,” he wrote.

In response to the ruling, an attorney for Trump, Christopher Kise, said in a statement emailed Wednesday that the decision was “outrageous” and “completely disconnected from the facts and governing law.” He said that the judge disregarded the views of those involved in the loan transactions, who he said testified that there was no fraud and that the transactions were highly profitable. He said the decision “seeks to nationalize one of the most successful corporate empires in the United States.” Trump’s legal team has said it will appeal the ruling.

Through a spokesperson, James said after the ruling that “we look forward to presenting the rest of our case at trial.”

Andrea Bernstein contributed reporting.

by Molly Burke, Medill Investigative Lab

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ProPublica and the Pittsburgh Post-Gazette have filed suit against the U.S. Food and Drug Administration in federal court in New York, accusing the agency of holding back records related to the sweeping recall of breathing machines that were sold around the world.

In June 2021, Philips Respironics acknowledged that an industrial foam fitted inside its popular DreamStation continuous positive airway pressure, or CPAP, machines and other devices could break down and send particles and fumes into the masks worn by patients. Health risks include headaches, respiratory conditions, nausea and “possible toxic and carcinogenic effects,” the company said.

The FDA, which regulates the medical device industry, categorized the recall as Class 1, reserved for defects that can cause serious harm or death.

But the agency denied multiple requests by the news organizations to quickly release documents under the Freedom of Information Act, including the company’s prior test reports on the degrading foam and monthly updates by Philips about the status of a recall that has impacted millions of people in the United States and other countries.

In its denial, the FDA estimated it would take as long as two years to produce the records.

After the lawsuit was filed in April, the FDA agreed to begin producing documents. The agency, however, fully redacted the company’s test results and assessments on the degrading foam — more than 1,000 pages — even though the FDA has previously summarized those results in publicly available records.

The agency cited an exemption in FOIA law that protects trade secrets and commercial or financial information that could impact a company’s business interests.

“The company’s interests should not supersede the public’s need to be fully informed about a product that the FDA itself has said has defects that can cause serious harm or death,” Post-Gazette Executive Editor Stan Wischnowski said.

Representatives for the news organizations said they plan to continue challenging the FDA’s response.

“Transparency in this case is a matter of significant and urgent public concern,” Sarah Matthews, ProPublica’s deputy general counsel, said in a statement. “These records will shed light on the recall of Philips ventilators and other breathing devices that have put the health of millions of Americans in jeopardy.”

Lawyers for the FDA have previously argued the news organizations are not entitled to an expedited delivery of records.

“Exceptional circumstances exist that necessitate additional time,” the government said in its response.

A spokesperson for the FDA said the agency does not comment on ongoing litigation.

Mediahuis NRC, an Amsterdam-based newspaper collaborating with ProPublica and the Post-Gazette on stories about the recall, has also faced obstacles in getting documents from government agencies.

Jet Schouten, a reporter at NRC, filed requests with the national health agencies in the Netherlands, Germany, Sweden and Finland for records related to the recall. Schouten said that the countries have no publicly available data about patient complaints related to the machines.

Schouten received documents from most of the countries, but the Dutch agency did not turn over the requested records. She turned to a Dutch court, which imposed deadlines for the agency to produce the records and then fined it 23,000 euros for missing the deadlines.

Schouten received the money but has not yet received the records.

“I don’t want any money,” Schouten said. “I want the documents.”

Michael Korsh of the Pittsburgh Post-Gazette contributed reporting.

by Kyle Hopkins, Anchorage Daily News

This article was produced for ProPublica’s Local Reporting Network in partnership with the Anchorage Daily News. Sign up for Dispatches to get stories like this one as soon as they are published.

An Anchorage city commissioner and her husband have been charged with fraudulently obtaining $1.6 million in COVID-19 recovery money for their charity. Charges filed in federal court in Anchorage accuse the couple of buying cryptocurrency and making personal use of money intended to help people find homes and addiction treatment.

A federal grand jury on Sept. 19 indicted Rosalina Mavaega, 41, and Esau Fualema Jr., 44, on five felony charges including major fraud, wire fraud and money laundering. The charges come after the Anchorage Daily News and ProPublica first reported in May that the Anchorage Assembly gave the couple one of the city’s largest awards under the American Rescue Plan Act despite prior fraud allegations.

Mavaega was arrested Wednesday, court records show. The U.S. Attorney’s Office publicly announced the charges that afternoon.

As of Thursday morning, the city website still listed Mavaega as a member of the Anchorage Equal Rights Commission, which is tasked with investigating allegations of discrimination, as well as the city housing and homelessness committee.

Anchorage Mayor Dave Bronson appointed Mavaega to the commissions in 2022. The executive director of the Equal Rights Commission said Thursday morning that Mavaega remains a commissioner. The chairperson of the homelessness commission said she remains a “member of good standing” on that commission, representing nonprofits, and attended its most recent meeting earlier this month.

Bronson spokesperson Veronica Hoxie said Thursday that the mayor asked for Mavaega’s resignation when she was being investigated in May. Mavaega declined, Hoxie said.

“The Mayor cannot unilaterally remove a member of boards and commissions per municipal code,” Hoxie wrote in an email. “However, Ms. Mavaega’s service is under official review by the Board of Ethics. The Board is addressing the issue and took initial public testimony in an executive session during its meeting on September 22. The matter is still under consideration by the Board.”

Mavaega and Fualema were in custody as of Thursday morning and could not immediately be reached for comment. When a reporter visited Mavaega’s office on May 18, an employee said she was not available but was scheduled to talk with investigators that afternoon. She did not respond to subsequent emails and phone calls seeking comment.

Fualema also did not respond to emails, phone messages or an interview request delivered to his home at the time.

First image: Rosalina Mavaega. Second image: Esau Fualema Jr. (LinkedIn)

The Anchorage Assembly in May 2021 awarded Mavaega and Fualema’s charity, House of Transformations, $1.6 million even though the state permanently barred the couple from serving as Medicaid providers in 2015.

The state Division of Senior and Disability Services gave four reasons for the ban: violating background check requirements, submitting billing claims without adequate documentation, offering a rebate for Medicaid referrals and submitting claims without supporting documentation.

As a result, Maveaga’s business can no longer bill any federal health care program, including Medicare, Medicaid and Denali KidCare, for its services. Mavaega appealed the ban in 2016, arguing the penalty was too severe and relied on hearsay evidence, but a state Superior Court judge upheld the punishment.

The charges relate to how they obtained the 2021 grant, how they used the money and alleged efforts to subsequently acquire additional grants from the city.

They are accused of lying to federal, state and city officials in order to claim they met legal requirements to receive an ARPA grant from the city. The charges say the couple directed a grant writer to submit proposals that “falsely described the operating expenses and officers and directors” of their various charities.

The charges say the couple transferred $297,250 of the grant to their personal checking account, using the money as collateral to obtain a personal loan. The loan money was used, in turn, to buy $191,000 in cryptocurrency and to pay taxes owed by one of their businesses.

An additional $402,000 in grant money was used to finance a for-profit beauty salon, according to the charges. The charges say that as part of their grant agreement, they promised to use about $500,000 to make down payment on two Anchorage properties that could be used for housing services. They did not do so, the charges say, and failed to disclose that Fualema already owned 50% of one of the properties.

House of Transformations and various limited liability companies that use the same office address and same name, or similar names, are among a constellation of nonprofits and businesses the couple created in recent years.

House of Transformations was one of the biggest recipients in the first round of ARPA grant awards from the city. It received more than city agencies such as the fire and police departments, and it received the 13th overall largest grant out of the 64 awarded.

Update, Sept. 29, 2023: This story has been updated to add additional comments from Anchorage officials.

Correction

Sept. 30, 2023: This story originally misstated the first name of Anchorage Mayor Dave Bronson’s spokesperson. It is Veronica, not Victoria.

by Debbie Cenziper, ProPublica, and Michael D. Sallah, Pittsburgh Post-Gazette

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Millions of people in the United States and around the world were affected by the June 2021 recall of Philips Respironics ventilators and CPAP and BiPAP machines. ProPublica and the Pittsburgh Post-Gazette reported on how the company kept complaints about the devices secret for years. As part of that reporting, the news organizations found answers for consumers trying to navigate the crisis.

We are not providing medical advice and encourage patients and their family members to seek guidance from trusted health care providers.

Why Did Philips Respironics Recall These Breathing Machines?

Foam that the company embedded in millions of ventilators and sleep apnea machines to reduce noise was found to break down, in some cases because of heat and humidity.

The material is polyester-based polyurethane, which is used to stuff mattresses, seat cushions and sofas. Tests for the company have found that when the foam degrades, it can release chemicals at dangerous levels.

After receiving thousands of complaints, Philips announced a recall of about 20 models of ventilators and CPAP (continuous positive airway pressure) and BiPAP (bi-level positive airway pressure) machines. The Food and Drug Administration said that as many as 15 million devices with the sound-abatement foam had been sold since 2009.

The FDA, which oversees the medical device industry, declared the recall a Class 1 — the most severe type, reserved for device defects that can cause serious injury or death.

Was My Ventilator, CPAP or BiPAP Machine Recalled?

The recalled machines were sold not only in the United States but around the world, including in Canada, Australia and Brazil. Most of the affected devices were DreamStations, the company’s signature CPAP machine.

Continuous Ventilator, Minimum Ventilatory Support, Facility Use

• E30

Continuous Ventilator, Non-Life Supporting (BiPAP)

• DreamStation ST, AVAPS
• SystemOne ASV4
• C Series ST, AVAPS, also known as System One BiPAP AVAPS (C-Series), System One BiPAP S/T (C-Series)
• OmniLab Advanced Plus (sleep lab) CPAP
• OmniLab Advanced Plus

Noncontinuous Ventilator (CPAP)

• System One 50 series
• System One 60 series
• DreamStation CPAP
• DreamStation Go
• Dorma 400, 500

Mechanical Ventilators

• Trilogy 100
• Trilogy 200
• Garbin Plus, Aeris, LifeVent Ventilator
• A-Series BiPAP Hybrid A30
• A-Series BiPAP V30 Auto Ventilator
• A-Series BiPAP A40
• A-Series BiPAP A30

What Does the Government Say About the Health Risks?

The FDA has reported that when the foam breaks down, the material can move through the device and be inhaled or ingested. The agency said users can experience headaches, asthma, inflammatory conditions, respiratory tract problems and “toxic or cancer-causing effects to organs,” among other health complications.

The FDA has advised consumers with recalled machines to consult their doctors about the best course of action, noting that some users may face greater health risks if they stop using their machines altogether.

The agency is providing safety updates and has continued to categorize the recall as Class 1.

What Does Philips Say About the Health Risks?

When the recall was announced, Philips reported that the defect had the potential to cause both short- and long-term health risks, including life-threatening conditions. Previously, two internal health hazard evaluations launched by Philips had concluded that the risk to people who used the machines was “unacceptable.”

In recent months, Philips has reported that initial testing was limited and based on a “worst-case scenario,” and that new tests on the DreamStation and similar devices have found the foam breakdown is “unlikely to result in an appreciable harm to health in patients.”

Medical experts who reviewed the findings on behalf of ProPublica and the Post-Gazette raised concerns about the company’s safety claims. The experts said that far more devices need to be tested to capture clear-cut patterns and that human studies examining exposure levels over time are critical to assessing long-term harm.

The experts also pointed out that the machines tested positive for genotoxicity, the ability of a chemical to cause cells to mutate, a process that can lead to cancer. Philips has said that a third-party assessment still concluded the DreamStations and similar machines are unlikely to cause harm. Testing on ventilators is ongoing.

Are Ozone Cleaners to Blame?

Philips has said that unapproved ozone cleaners customers use to clean their devices can accelerate foam degradation.

The FDA has advised consumers to avoid ozone or ultraviolet light cleaners on CPAP and BiPAP machines. But in a letter to the company last year, the agency said the blame for the crisis ultimately lies with Philips.

“There are reasonable grounds to believe that the risk associated with the devices was not caused by the failure of a person other than Philips to exercise due care in the installation, maintenance, repair, or use of the devices at issue,” the FDA wrote.

How Can I Register for a Replacement CPAP Machine or Other Device?

Customers whose machines were recalled are supposed to be able to get replacements from Philips, which has a patient registration site.

Though Philips has said millions of replacement devices have been sent out, customers have reported the process is riddled with delays.

To register, Philips requires the name of the recalled device and its serial number. The company also requires a current doctor’s prescription.

Philips is offering new machines, refurbished machines or financial payments in lieu of a new device, depending on the situation. The company advises customers who have retained lawyers to consult with them before making a decision.

Patients in the United States can register their recalled devices online or by calling the company at 877-907-7508.

Once you register, you should receive a confirmation number, which you can use to track the status of your request.

How Can I Tell the Government About a Problem With My Breathing Device?

The FDA maintains a database known as the Manufacturer and User Facility Device Experience that tracks reports about malfunctions, patient injuries and deaths linked to medical devices.

Under the law, manufacturers, importers and certain facilities are required to report such events. But patients can report them too, as can their relatives, doctors and other health care professionals, either through the FDA’s online MedWatch portal or by submitting FDA Form 3500B.

Is the Information on Social Media Trustworthy?

Many patients whose devices were recalled have taken to social media to gather information, including tips about safe ways to continue using the devices and where to find replacements.

Videos by YouTube personalities purport to show customers how to tear the foam out themselves, but safety regulators have warned against doing that because it can dislodge potentially toxic material.

The recall also helped fuel an online market for secondhand devices. Experts say that customers should seek proof that any recalled machine being sold online has been properly repaired.

While online forums can be helpful, public health experts say sleep and respiratory care doctors are in the best position to give you good advice.

Help ProPublica and the Pittsburgh Post-Gazette Investigate the Recall of Philips Respironics Breathing Machines

Michael Korsh of the Pittsburgh Post-Gazette contributed reporting.

by Patrick Lohmann, Source New Mexico, and Byard Duncan, ProPublica

This article was produced for ProPublica’s Local Reporting Network in partnership with Source New Mexico. Sign up for Dispatches to get stories like this one as soon as they are published.

On a recent sunny morning in the high pastures of northern New Mexico, Tito Naranjo greeted a pair of federal surveyors on a patch of gravel where his traditional adobe home once stood.

Naranjo used his walking stick to show them the outline of where his sunroom had been before it burned up in a wildfire accidentally set by the U.S. Forest Service last year. They walked slowly to the edge of the property, past a blackened willow tree that once held a tire swing, and stepped over a creek now empty of trout.

The tour confirmed what satellite imagery hinted at: This 97-acre property was a total loss. The home Naranjo and his wife had shared for 50 years, a stand of aspen trees, a small apple orchard, miles of fencing and a bridge he had built himself, all gone.

Naranjo, 86, hasn’t laid the first adobe brick of a replacement home, hammered a fence post or planted a single tree. And with congestive heart failure raising the risk of a stroke, he worries he won’t live long enough to do so.

First image: Tito Naranjo, left, points to the edge of his property during a visit with Cody Townsend, a conservationist with the U.S. Department of Agriculture. Second image: Naranjo slowly walks up what used to be a road on his property before post-fire flooding washed it away. (Patrick Lohmann/Source NM)

Seventeen months after losing their homes and livelihoods in the Hermits Peak-Calf Canyon Fire, Naranjo and thousands of others in the aging, rural communities in New Mexico’s Sangre de Cristo Mountains are still waiting for money to rebuild.

As the fire swept across the mountains for five months in mid-2022, the Federal Emergency Management Agency responded as it would to any disaster. It provided roughly $6.2 million to about 1,100 households for short-term expenses like housing and evacuation and, in some cases, for limited damage to housing and possessions.

But even for people who lost everything, those payments were capped at about $38,000. Most people got far less, and some got nothing. Few people were given temporary housing. Farmers and ranchers are struggling to earn a living.

The money for the far more difficult and expensive task of rebuilding is supposed to come from a $4 billion fund set up by Congress just for this fire — an acknowledgment of the Forest Service’s culpability in triggering the blaze. But the FEMA office handling those payments didn’t start sending checks as quickly as expected, and it has yet to spend 98% of the money.

FEMA has defended its rollout of the claims office, saying it is moving as fast as a federal agency can. Normally, FEMA offers only short-term disaster aid. This is only the second time it has been tasked with paying survivors so they could rebuild after a federal agency lost control of a prescribed burn meant to prevent a wildfire. FEMA established policies, hired staff and opened offices in eight months.

Faced with delays in getting paid and questions about what FEMA will ultimately cover, a local attorney representing Naranjo and several hundred other survivors recently convinced a federal judge to allow some of her aging, infirm clients to testify under oath about what they have lost — an unusual move intended to preserve knowledge that their relatives don’t have.

Antonia Roybal-Mack, the lawyer, said she wants to make sure these victims are made whole if they die before they get a check from the federal government. If they end up filing suit to get what they believe they deserve, “these clients will likely expire before they get their day in court,” she said.

Her clients include farmers and ranchers who lived off land that was burned in the fire or that was washed out in the floods that followed. According to sworn court filings, they include a Vietnam veteran who said he was “blown to hell” in the war, a salon owner who said her doctors told her that her recent lung disease came from “chemicals and smoke,” and a former police chief who recently was treated for cancer for the fourth time.

In an excerpt from a court filing, an elderly fire victim seeks permission to testify under oath about his losses in case he dies before FEMA pays him. (Obtained by Source NM. Redacted by ProPublica.)

Many survivors have lived in these tight-knit communities for decades, some their whole lives. Their way of life — captured by the Spanish word querencia, which people here use to express their love of the land and their obligation to it — was under threat even before the megafire. Naranjo is one of the last fluent speakers of Tewa, the language spoken in the Indigenous pueblo he grew up in. The population of Mora County, where he now lives and one of two counties that were badly burned, declined 15% from 2010 to 2020, to about 4,200, according to census figures.

Now living at his son’s home two hours away, Naranjo is trying to figure out what, if anything, he can do for his land. His wife, Bernice, said the instability of life since the fire and their sudden reliance on the government has made his final chapter distressing and chaotic.

“He doesn’t show his emotions very clearly, but he does feel the loss tremendously,” she said. “And he knows that he may never be able to rebuild.”

Naranjo at his sister’s home in Santa Clara Pueblo, New Mexico (Adria Malcolm for ProPublica) Before a Check, the Fine Print

The $4 billion Congress set aside is supposed to compensate survivors, businesses, local governments and nonprofits for damages in the 534-square-mile burn scar. But the claims process is long and complicated, and the vast majority of victims haven’t gotten anything yet.

FEMA wrote its first check to a survivor in June, according to the claims office. That’s a year after the fire raced through the mountains. As of Sept. 15, it had paid $67 million, just under 2%, most of which went to individuals. The pace has picked up in recent weeks, however. (New figures are expected next week.)

Though the Forest Service said 430 homes burned in the fire, a maximum of $2 million has gone to housing as of Sept. 15, according to FEMA’s figures. FEMA said it is processing “a fairly small number” of claims for housing, though officials have declined to say exactly how many.

The problem is twofold: Some people held off on filing claims as they waited months for FEMA to finalize its rules on exactly what it would pay for. And for those who did file, the checks have not come quickly.

Source New Mexico and ProPublica spoke to about 30 survivors about the claims process. A little under half said they had not yet filed a claim. They said they were desperate to start rebuilding but needed clarity on the claims process.

Until late August, the claims office operated under interim rules largely copied from the Cerro Grande Fire in 2000 — the only other time FEMA has paid for damages for a wildfire accidentally started by the federal government. FEMA officials acknowledged differences between the fires but said they started with those rules because they were in a rush to get moving.

Some of those residents told us they didn’t want to file claims under those rules, believing they would miss out on additional money if the final rules were more generous. FEMA officials told survivors that would not happen, but lawyers and residents told Source and ProPublica they feared that the formulas in the interim rules would determine their payments regardless.

A big sticking point was the value of the trees that once covered these mountainsides. Residents and lawyers said the interim rules undervalued those trees, which are harvested for timber, Christmas trees, and latillas and vigas — ceiling rafters commonly used in Southwestern homes. While the claims office issued partial payments for other damages, it held off on paying for trees until it could figure out how to value them.

The final rules released on Aug. 28 offered far more for trees than the interim rules, which finally assuaged those concerns. Based on that formula, Angela Gladwell, the head of the claims office, said she expected tree losses to top $1 billion.

Scorched trees cover Holman Hill in New Mexico. The Hermits Peak-Calf Canyon Fire ravaged 534 square miles, about the size of Los Angeles, in the Sangre de Cristo Mountains of northern New Mexico. (Adria Malcolm for ProPublica)

Residents who didn’t wait for the rules to be finalized faced different obstacles. After a claim is filed, FEMA must formally “acknowledge” it. But FEMA has no deadline by which that must happen. The agency started encouraging people to file claims in November, but none were acknowledged until April. The delays continued through the summer.

FEMA told Source and ProPublica that it tries to acknowledge claims within 30 days, but that it took time to create a new office and train staff. The agency also said its office had at times received a lot of notices at once, which delayed the process.

The claims office is catching up: As of Sept. 14, it had acknowledged about 80% of the 2,214 claims filed. But those survivors face a new round of waiting. Once FEMA acknowledges a claim, it has 180 days to make an offer to pay for those damages. People can decide to take the money or to fight for more through arbitration or in federal court.

The pace of payouts is slower than it was for the Cerro Grande Fire. After a similar amount of time since a law went into effect to compensate those victims near Los Alamos, FEMA had paid about $162 million out of $545 million allocated — about 30%. That included about $84 million to individuals.

FEMA says payments are taking longer this time because this fire was bigger, the communities are poorer and have less insurance, and the claims are more complex, with agricultural and ranching losses to consider along with burned homes.

The agency plans to distribute $1 billion — a quarter of the total allocated — by January 2025. It did meet a recently set internal target of spending $50 million by Oct. 1, a spokesperson pointed out.

Regardless of whether they have filed a claim yet, survivors face uncertainty over whether all their costs will be covered. People who accept a payment must sign a form saying they won’t seek additional compensation or sue the government for “past and present and future claims” for the category of loss they’re being paid for. But more than a year after the fire was extinguished, people don’t know if they’ve seen the last of the damage.

The fire burned root systems and topsoil, creating a landscape where dirt and debris sloughs off the mountainside when it rains, particularly after spring snowmelt and during the summer monsoon season. That’s expected to continue for several years.

Since the fire, “I’m constantly doing flood control and mitigation,” said Felicia Ortiz, whose hillside property is eaten away during rainstorms. FEMA acknowledged her claim on Aug. 18 and has yet to pay her.

She estimates she’s spent roughly $8,000 on recovery, much of it to divert floodwaters. “Cleaning up messes from the flooding — it happens, you clean up, it happens again, you clean up again.”

Mud and debris pushed over fences on Felicia Ortiz’s property in Rociada, New Mexico, after a rainstorm in July 2022. Since the fire, she said, “I’m constantly doing flood control and mitigation.” (Courtesy of Felicia Ortiz)

Despite the form that survivors must sign, FEMA says victims like Ortiz need not worry about ongoing damage after they’ve accepted a check. Any loss that occurs afterward could be eligible for reconsideration, the agency says; Gladwell, the claims office head, has sole discretion on whether to reopen a particular claim.

All these obstacles leave some fire victims wondering whether they can trust the federal government that burned their property, denied short-term aid to many of them and then promised to make them whole.

“I do believe that Angie Gladwell is really trying to serve the people,” said Kayt Peck, who waited until the final rules were released to file a claim for her destroyed home. “But she’s just one cog in the FEMA wheel. And when you’re working with someone that you know from the past that you couldn’t trust, and they’re telling you to trust them, don’t trust them.”

FEMA has stressed that the claims office is separate from the program that provided limited assistance when people were fleeing their homes. Staffers with the claims office regularly show up at community events, handing out brochures encouraging people to file claims. The claims office advocate holds meetings to combat “half-truths and misinformation” about what FEMA will and won’t pay for.

“We know that trust is earned by doing what we say we are going to do, and delivering results,” FEMA spokesperson Deborah Martinez said.

A Year of Waiting

Most of the people who spoke with Source and ProPublica said they can’t rebuild before FEMA pays their claim. Few of those displaced by the fire had insurance. Some said they’ve already spent their temporary aid; others never got any.

A state agency said in February that people are leaving for urban areas such as Albuquerque and won’t be able to return without financial help. Calls from fire victims to a mental health hotline shot up this spring. And in August, U.S. Sen. Ben Ray Luján greeted President Joe Biden on a visit to New Mexico by handing him a letter criticizing delays in payments.

New Mexico Gov. Michelle Lujan Grisham said on a recent visit to the burn scar that the message from FEMA is to wait, just as it was last summer: “That’s what you’re hearing from everyone: ‘I don’t know what I’m supposed to do. I’m waiting.’”

Martinez, the FEMA spokesperson, said the claims office recognizes that the recovery “has been a uniquely challenging and often frustrating experience for many,” and it is providing “unwavering support” to survivors.

FEMA has partnered with other federal agencies to help survivors. A Department of Agriculture program provides free estimates for some types of losses. FEMA will pay up to five years of flood insurance premiums for those expecting post-fire flooding. And the claims office recently announced it would pay survivors’ Small Business Administration disaster loans, including interest.

Brian and Nell Rodgers lost not just their home on a hilltop 5 miles east of Hermits Peak, but their carefully planned life of self-sufficiency. They raised trout in an indoor pond. Brian had converted a few vehicles to run on biodiesel; when the waste vegetable oil he was processing into fuel exploded during the fire, he said, it could be seen for miles.

They put their disaster aid toward an RV and moved to Santa Rosa, 80 miles away in the desert. For six months, the couple “itemized every detail of our life” in anticipation of a larger payout, said Nell Rodgers, a 70-year-old retired schoolteacher. They filed their claim in July. The claims office acknowledged it quickly, but the money has yet to arrive.

When Nell experienced chest pains after a surgery in July, she wanted to go to an emergency room in Santa Fe, more than an hour away. Because they were short on cash, Brian Rodgers had to ask his ex-wife, who lives nearby, for $20 in gas money.

The government “took away our retirement — and took away our possibilities,” Nell Rodgers said. “And so now, the only thing we can count on is compensation. And that doesn’t seem to be coming anytime soon.”

Brian Rodgers, center, interrupts a U.S. Forest Service district ranger during a town hall meeting in Las Vegas, New Mexico, in March, where the agency discussed how it was managing the removal of burned trees that could fall down. (Adria Malcolm for ProPublica)

Sam Arthur, the owner of a clothing boutique in Las Vegas, New Mexico, lost the home he shared with his wife, Tamara Fraser, in April 2022 — the day the fire suddenly surged across the mountains. Dozens of homes were destroyed in one day.

He said he promptly received the maximum amount of emergency assistance, but it was nowhere near enough to repair his home or restore his acres of scorched property. He submitted a notice of loss to FEMA on Jan. 6, seeking to be paid for the destruction of his home, relocation costs, debris removal, cleanup and other expenses. The agency didn’t acknowledge his claim until Sept. 1. Under the rules, it has until the beginning of March to make a payment offer.

In the meantime, he and his wife are living in a “tiny home” on wheels in the parking lot behind his store. “At least it’s ours, and we don’t have to pack up and leave again,” he said. “Those things were starting to take a toll.”

First image: A pickup truck and trailer on the site of Sam Arthur and Tamara Fraser’s former home in Rociada, New Mexico. Second image: Arthur in front of the burned land on his property. (Adria Malcolm for ProPublica) Neighbors Step Up

While victims wait, they’re getting help from a local volunteer group that has raised funds to pay for essentials like refrigerators, generators and wheelchair ramps.

Neighbors Helping Neighbors got its start when Janna Lopez, a retired state worker, began bringing hot food to a shelter at a former school gym as the fire raged in April 2022. After the fire was contained and survivors’ needs grew more complex — unpaid rent, flooded driveways, contaminated wells — she and fellow volunteers kept at it.

By July, the organization had handed out about $300,000 to about 65 households — about as much as FEMA had provided to households by then, said Bob DeVries, a volunteer and track coach at the local university. (Since then, FEMA has increased its payments.) Now, payments from the volunteer group are approaching $500,000.

Every Thursday, the group’s two case managers gather at a local church with representatives of four local religious and philanthropic organizations. They decide how much to give each victim, no strings attached, typically capped at $12,000.

Janna Lopez, Hap Escue and Chip Meston, from left, during a Neighbors Helping Neighbors meeting at First United Methodist Church in Las Vegas in August. Lopez, founder of the volunteer aid group, helped with two applications for assistance that Escue and Meston reviewed. (Adria Malcolm for ProPublica)

One day in early August, they handled “Case 260,” a man in his 60s. His refrigerator was damaged when the power had been shut off, and the ojito, the natural spring he used for farm animals, was destroyed by flooding.

He didn’t have insurance, and his claim hadn’t been paid yet. He had gotten just $800 in disaster aid. “He’s, in essence, exhausted what he can get from the federal government,” said Chip Meston, who runs a local beef processing plant and represents one of the churches.

The committee quickly agreed to pay the entire request: $3,068.55.

Though the immediate crisis has passed, the number of people seeking help hasn’t dropped. There are about 45 active cases, with a backlog of more than 270. About 20% of households in the area were below the poverty line before the fire, and if they got any short-term aid from FEMA, it’s long spent, DeVries said.

If you or someone you know needs help, here are a few resources:

• Call the National Suicide Prevention Lifeline: 988
• Text the Crisis Text Line from anywhere in the U.S. to reach a crisis counselor: 741741

Rosie Serna, 75, said Neighbors Helping Neighbors pulled her out of despair. She’d gotten by on Social Security since her husband died. The fire took the home where she hosted big outdoor gatherings for kids and grandkids.

For a while, FEMA helped her with rent as part of its disaster aid, but it stopped after she accepted temporary help from an aid group. By April, the $700 rent came due. She had no way to pay. She felt overwhelmed.

“I was just thinking of so many things: ‘Why me?’ ‘What am I going to do?’” she recounted, moved to tears. “And I said, ‘Maybe it’s better if I just don’t exist anymore.’ I thought, ‘Nobody cares about me.’ I felt so alone.”

Rosie Serna at the house she is renting in Mora, New Mexico. When Serna evacuated her home, the only item she took with her was her statue of the Virgin Mary. (Adria Malcolm for ProPublica)

One day in early April, Serna got a call from Gloria Pacheco, a retired schoolteacher and volunteer who was checking on her FEMA case. Serna seemed to have lost hope.

Worried, Pacheco drove 45 minutes to see her, the first time they had met in person.

After a long conversation, Pacheco connected Serna to a therapy service for fire victims, which Serna said has been helpful. Neighbors Helping Neighbors gave her a few hundred dollars for propane.

FEMA recently denied Serna’s appeal for rental assistance, but Pacheco said she’ll keep trying. Serna calls Pacheco “my angel.”

“I Really Have to Prepare”

As Naranjo waited to be sworn in for his deposition in a hotel conference room on July 20, he glanced at his watch. “We’re running 21 minutes behind,” he said to the lawyers gathered to question him.

Over the next two hours, he testified about the life he and his wife had built near their childhood pueblos, the monstrous fire that made ash of his journals, FEMA’s denial of any short-term aid, the future of his land.

“Is it your goal to restore the property as best you can to the way it was before the fire started?” asked Roberto Ortega, an assistant U.S. attorney.

“That can never happen,” Naranjo answered. “I would like to see it, but I saw it in its glory. It was a paradise. That paradise can never be rebuilt.”

The site of Tito and Bernice Naranjo’s former home (Adria Malcolm for ProPublica)

As he prepares to leave his land and any compensation he ultimately receives to his wife and children, he’s made his priority the 3-mile fence that once encircled his property. He’s tired of his neighbor’s cows eating his grass for free. Most of all, he wants a permanent demarcation of what he will leave behind.

A few days after the deposition, he walked his property with Department of Agriculture employees to assess the damage. “I really have to prepare. You need to have permanent markers on it, so people know where your boundaries are,” Naranjo told them. “That’s why I want the fence. That’s my priority. Because my children don’t know the boundaries of our property.”

During a tour of the damage to Naranjo’s property with the USDA employees, he points to a mountainside the fire descended. (Patrick Lohmann/Source NM)

But rebuilding the fence, as with everything else FEMA has been involved with, isn’t as simple as he hoped. If he wants the full replacement cost, he’ll have to prove the fence was his by submitting affidavits from his neighbors or receipts — for a fence he built himself, 50 years ago, with timber from his property.

Back then, he felt energized by the land, waking early to run a 7-mile loop around the property and occasionally discovering prayer shrines left by early Pueblo peoples. Now everything is exhausting — walking up the washed-out road, dealing with the fence, hearing his kids’ ambivalence about whether they want to rebuild.

“I just haven’t got the strength, or the energy, or the outlook, or the dreams that I had at the time,” he said.

He no longer plans to have his remains spread on the property. He once envisioned his ashes scattered among the aspens and ponderosa pines. Instead, blowing through those blackened trees will be ashes of the paradise he lost.

A blackened willow tree on Tito and Bernice Naranjo’s property in Chacon, New Mexico (Adria Malcolm for ProPublica)

Were You Affected by the Massive Wildfire in Northern New Mexico? We Want to Hear From You.

by Anna Clark, ProPublica, and David Jesse, The Chronicle of Higher Education

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Among the people streaming onto Baker College campuses early this fall were some new faces: federal investigators conducting an unusual review of the marketing and recruitment practices of the Michigan private college.

The investigators looked at records and asked questions about admission interactions, including what prospective students were told about cost, financial aid and post-graduation salaries, according to multiple sources with direct knowledge who spoke anonymously because they said they could lose their jobs if they talked to the news media. Questions from the investigators focused on student experiences at Baker and whether the school lived up to promises made in the recruiting process.

The investigators’ presence is the latest sign of precarious times at the nonprofit college. The U.S. Department of Education, whose investigation into Baker was made public in June, could penalize the college by jeopardizing its accreditation or access to federal student aid. At the same time, Baker’s finances are spiraling down: Revenue and enrollment have declined precipitously in the past decade. Its Michigan footprint has shrunk from nine traditional campuses to five.

In a 2022 investigative report, ProPublica and the Detroit Free Press detailed the college’s low graduation rates and the heavy debt that many students shoulder. The college regularly spent more on marketing than on financial aid, and experts identified conflicts of interest in the college’s governance structure.

As the 2023-24 school year gets underway, not all students are aware of the peril their college could be in. Over several days in August, at Baker’s new Royal Oak campus, outside Detroit, only one of more than two dozen students interviewed knew about the federal investigation.

Over in southwest Michigan, Meayah Haselhuhn learned about it from news reports — and she’s concerned. The 25-year-old mom has been taking online classes at Baker while working full time, with hopes of graduating in a business program and landing a better-paying job by the time both her kids are old enough for school.

But now, she plans to find a different college.

“I cannot risk it,” she said.

Six weeks after Haselhuhn expressed those worries, federal investigators showed up.

Baker’s public relations manager confirmed that federal investigators were on site last week at two campuses, Owosso and Royal Oak. “We knew they were coming,” she wrote in an email, adding that “we are and will remain fully cooperative with any requests made from the Department of Education.”

Baker declined to answer additional questions about the inquiry. The federal government would not comment on the visits or the investigation. In a public disclosure notice in late August, Baker’s accreditor, the Higher Learning Commission, said the college must file a report on the status of the investigation every 90 to 120 days, but those reports are considered private and not available to students, faculty or staff.

Nonprofit schools like Baker aren’t typically subjected to such scrutiny.

Michigan, unlike most states, has no mechanism to oversee private colleges. But even states with such a system rarely use it, unless the school is close to shutting down. Accreditation agencies, meanwhile, generally have small staffs and rely on volunteers from other colleges who conduct site visits and read reports.

That leaves the federal government. But it has largely refrained from direct oversight of nonprofit colleges, except in extreme cases.

When it launches investigations, the focus has been on for-profit institutions. The unit investigating Baker was gutted under the Trump administration but reconstituted under President Joe Biden.

While high-profile investigations of schools like ITT Technical Institute and Corinthian Colleges led to their closure and loan cancellation for former students, there are no known completed investigations of nonprofit private institutions for marketing and recruitment practices in undergraduate programs.

Baker College is undergoing one of the most extraordinary periods of change in its 112-year history. Founded as a for-profit business college in Flint, and serving as a training ground for many auto industry employees, it converted to nonprofit status in 1977 and grew fast, propelled by federal Pell Grants and federally subsidized student loans. It became a pioneer in online learning, opened multiple campuses and grew to be the largest private nonprofit school in Michigan.

Money flowed into Baker’s accounts as the college grew. At the end of the 2013-14 academic year, Baker was bringing in $219 million in revenue and had $226 million in expenses. By the end of the 2022-23 school year, revenue was $58 million and expenses had shrunk as well, to $93 million.

From a high of about 45,000 students in 2011-12, enrollment is now about 4,000.

Baker’s officials have attempted a turnaround by orchestrating a radical shift in its target market, closing campuses in historically industrial places like Flint and Allen Park and building a new one in the more well-off suburb of Royal Oak. The rebranding from an open-enrollment college to a more traditional school includes being more selective in which students are admitted and devising a new mascot — the Baker College Bees.

For the 2018-19 school year, 2,107 prospective students applied to Baker. According to federal records, the college offered admission to about 80% of applicants and 745 of them enrolled.

By contrast, in the 2022-23 school year, about the same number of prospective students applied to Baker. The college offered admission to just over 35%, and 323 enrolled.

But the reality of its finances has meant steep cuts in spending. It chopped $10 million in spending on educational and instructional expenses between 2021 and 2022, audited financial statements show.

Baker has a large endowment, yet the proceeds remain largely untouched. Organized as the Jewell Educational Fund, it grew even as the college’s finances declined, rising 127% between 2011 and 2021.

Baker had about $350 million in its endowment in August 2022, the most recent numbers available. But its earnings have been lightly used, even as Baker closed campuses, and students took on sizable debt.

Records show that the extent of the endowment’s spending was $7.4 million on scholarships, or about 1.9% of the total on hand at the beginning of the 2021-22 fiscal year. Nationally, the average spend rate for endowments the size of Baker’s was 4.6%, according to a study by the National Association of College and University Business Officers.

With lower-income students lacking sufficient access to scholarship money, ProPublica and the Free Press reported in 2022, they often turned to federal loans. Former students described how they had left Baker without the skills necessary to succeed in a well-paying career but burdened by crushing sums of debt.

Some former Baker students have filed what are known as borrower-defense claims with the Department of Education, asserting that deception had led them to take out loans and that the loans should be forgiven. Data from 2020 showed that the number of claims about Baker was unusual for nonprofits. For-profits usually are the subject of such complaints. The Department of Education wouldn’t comment on how it is handling those claims.

Another place disgruntled former students have turned to is the U.S. Federal Trade Commission.

Between 2016 and mid-2023, about 60 complaints were received by the FTC involving accusations of misleading claims by Baker, ProPublica and The Chronicle of Higher Education found.

Among the complaints from 2022 was one from a student who wrote: “Baker College is a supposed non-profit institution, but they have made false claims about their employability of graduates, finances, and programs.”

Another wrote: “I was lured into a sense that I would be attending a college that valued their students only to learn that they valued my financial asset to the college and not my education. I feel that I have been deceived and used for their financial gain.”

The FTC declined to comment. It does not confirm or deny the existence of any investigations because the agency’s investigations are not public.

While Baker did not respond to detailed questions for this story, it said in previous statements to reporters that the college is not allowed to restrict student borrowing. It also emphasized a commitment to improving student outcomes and reducing their loan debt. It has defended its governance structure and marketing practices.

Haselhuhn, the mom who plans to leave Baker, also is concerned about departing with too much debt. She earned an associate degree from a community college at no cost, in part, she said, because she came out of Michigan’s foster care system.

For a year in Baker’s online program, she has about $13,000 in student loans, she said. “It’s hard to imagine paying it.”

Kevin, a Baker graduate who asked that his full name not be used, said he’s conflicted about the investigation.

He has a good job and remembers many excellent teachers at the Flint campus, he said. But he also saw problems, including students who, believing Baker’s marketing, took on debt for programs that wouldn’t lead to successful careers.

It’s “shameful,” he said, and he thinks Baker should be held accountable.

At the same time, he’s concerned that the investigation — and its possible consequences, including accreditation loss — will hurt Baker graduates.

Even as he pays down $55,000 in student-loan debt, he has one question: “Is my degree going to be worth nothing?”

by Debbie Cenziper, ProPublica; Michael D. Sallah, Michael Korsh and Evan Robinson-Johnson, Pittsburgh Post-Gazette

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was co-published with the Pittsburgh Post-Gazette.

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To understand the breakdowns that led to one of the most tumultuous medical device recalls in generations, ProPublica and the Pittsburgh Post-Gazette spent a year probing what happened inside Philips Respironics after the company first learned that contaminants were turning up in breathing machines designed to save lives.

The news organizations also tracked what has happened since the recall as the company claimed that its devices were safe despite multiple test reports showing that foam embedded inside them to reduce noise could break down and send dangerous particles and chemicals into the masks of patients. Millions of ventilators, continuous positive airway pressure (CPAP) and bi-level positive airway pressure (BiPAP) machines were impacted by the recall.

Reporters for the two news outlets collaborated with Mediahuis NRC in Amsterdam, where Philips’ parent company, Royal Philips, is headquartered, as well as with student journalists from Northwestern University’s Medill Investigative Lab.

Reporters obtained newly unsealed court records, internal documents, text messages and public records in the United States and other countries to track Philips’ and its parent company’s response to the problem. Those documents included records from four tests conducted by independent labs brought on by Philips that describe the chemicals released by the foam.

The reporting team also drew on thousands of complaint reports spanning 13 years that were submitted to a national repository known as the Manufacturer and User Facility Device Experience database. The records are maintained by the Food and Drug Administration and describe reports of patient deaths and injuries as well as device malfunctions.

To better sort and examine the reports from MAUDE, the team used a proprietary system called Device Events, a search engine developed by former FDA analyst Madris Kinard.

Over the course of months, reporters pulled every report about the recalled machines. More than 100,000 had been filed with Philips or the government since 2010 by patients, doctors and others. (It is possible that some patients or events were referenced in more than one report.)

Because the records include the date the company received each complaint, reporters were able to determine how long it took Philips to submit them to the FDA.

Federal law requires device makers to turn over to the government within 30 days all reports of patient injuries, deaths and malfunctions that have the potential to cause harm.

The reports described thousands of cases of cancer, liver and kidney conditions, respiratory infections and other illnesses among device users. Some users or their family members directly tied those illnesses to the use of recalled machines. Others simply reported illnesses without elaborating.

The methodology used by ProPublica and the Post-Gazette was reviewed by Kinard and by Ross Meisner, the chief commercial officer of Basil Systems, a research platform for quality, safety and regulatory analysis.

Philips has said new tests on its DreamStation CPAP machine show that the machines are “unlikely to result in an appreciable harm to health in patients” and that testing on ventilators is ongoing. The company has also said that it properly responded to complaints about the foam and launched a recall when the problem became clear.

Testing to determine the level of health risk posed by the foam could take years. The FDA has declared the recall as a Class 1, which is for device defects capable of causing severe injury or death.

The reporting team interviewed more than 200 people in the United States and a dozen other countries, including former Philips employees who described lapses inside the company that allowed problems to go unaddressed for years.

Reporters traveled the country to interview doctors, researchers, patients and the family members of those who died, and consulted public health researchers and physicians on risks posed by the devices. Dr. Ronald Chervin, director of the University of Michigan Sleep Disorders Centers, and Dr. Radhika Breaden, a sleep medicine specialist in Oregon, provided guidance on the science behind sleep apnea and CPAP machines.

The news organizations have requested dozens of additional documents from the FDA. In April, ProPublica and the Post-Gazette sued the FDA in federal court in New York over the agency’s refusal to expeditiously release the records. The case is ongoing.

Reporting was contributed by Monica Sager, Molly Burke, Margaret Fleming, Susanti Sarkar, Nicole Tan, Claire Gardner, Bridgette Adu-Wadier, Aidan Johnstone, Kelly Adkins, Haajrah Gilani, Juliann Ventura and Grant Schwab of Northwestern University’s Medill Investigative Lab, and Ryann Grochowski Jones of ProPublica contributed data analysis.

by Debbie Cenziper, ProPublica, and Michael D. Sallah, Pittsburgh Post-Gazette

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was co-published with the Pittsburgh Post-Gazette.

Interested in learning more about this investigation? Join us for an upcoming virtual conversation. Register today to save your spot.

The massive recall of Philips Respironics’ ventilators and DreamStation CPAP (continuous positive airway pressure) machines disrupted medical care for millions in the United States and around the world. An investigation by ProPublica and the Pittsburgh Post-Gazette found that the company continued to sell the devices long after it discovered that foam inside them could break down in heat and humidity, emitting particles and fumes into the masks worn by patients.

The federal government has classified the recall as the most serious: one for device defects that can cause serious injury or death. The company has said testing so far on its machines shows they are unlikely to cause “appreciable harm.” But experts and even some of the company’s own employees and others say test results are concerning, records and interviews show. The company has pledged to repair or replace recalled machines, investigate reports of deaths and communicate with the public about the health risks.

As we continue reporting on the recall and the damage caused by these machines, we need your help. We’re particularly interested in accounts from Philips’ customers, their family members or others who reported deaths or serious illnesses — either to the company or through the government’s MedWatch reporting form — and whether the company followed up.

We’re also interested in hearing more about your experience with the recall process.

If you worked for Philips before or after the recall, or worked at the independent labs that provided test results to the company, we’d like to hear from you too.

Your answers could help others who are still trying to navigate the recall or who have concerns about health impacts.

by Debbie Cenziper, ProPublica; Michael D. Sallah, Michael Korsh and Evan Robinson-Johnson, Pittsburgh Post-Gazette; and Monica Sager, Northwestern University

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This story was co-published with the Pittsburgh Post-Gazette.

Interested in learning more about this investigation? Join us for an upcoming virtual conversation. Register today to save your spot.

The first complaints landed at the offices of Philips Respironics in 2010, soon after the company made a fateful decision to redesign its bestselling breathing machines used in homes and hospitals around the world.

To silence the irritating rattle that kept users awake at night, Philips packed the devices with an industrial foam — the same kind used in sofas and mattresses. It quickly became clear that something had gone terribly wrong.

The reports coming into Philips described “black particles” or “dirt and dust” inside machines that pump air to those who struggle to breathe. One noted an “oily-like” substance. Others simply warned of “contamination.”

The complaints targeted some of the company’s most celebrated devices built in two factories near Pittsburgh, including ventilators for the sick and dying and the popular DreamStation for patients who suffer from sleep apnea, a chronic disorder that causes breathing to stop and start through the night.

Yet Philips withheld the vast majority of the warnings from the Food and Drug Administration, even as their numbers grew from dozens to hundreds to thousands and became more alarming each year.

“Black shavings in the chamber,” said one 2011 report that was kept from the government. “Contaminated with unknown sticky substance,” noted another three years later. By 2015, the year Philips launched the DreamStation, the company had amassed at least 25 complaints that pointed to a specific cause — the foam was falling apart.

In June 2021, more than a decade after the first reports, Philips announced a recall of millions of machines that had been delivered to nearly every corner of the United States and dozens of other countries. The company acknowledged that the foam it had chosen could crumble in heat and humidity and send potentially “toxic and carcinogenic” material into the noses, mouths, throats and lungs of users.

George Bales, who used a Philips CPAP machine for about six years before it was recalled, sued the company after developing cancer near one of his vocal cords. Unable to swallow easily, he uses a feeding tube inserted just above his belly button. (Liz Moughon/ProPublica)

In a series of statements, the industry giant said it acted as soon as it learned of the “potential significance” of the problem.

But an investigation by ProPublica and the Pittsburgh Post-Gazette of the 11 years between the first complaints and the recall reveals a different story — one of a company that sought to protect its marquee products as stock prices soared to the highest levels in decades. Again and again, previously undisclosed records and interviews with company insiders show, Philips suppressed mounting evidence that its profitable breathing machines threatened the health of the people relying on them, in some cases to stay alive.

Federal law requires device makers to turn over to the government within 30 days all reports of patient injuries, deaths and malfunctions that have the potential to cause harm, and to take action to investigate them.

A ProPublica and Post-Gazette analysis of tens of thousands of reports shows that Philips withheld more than 3,700 complaints over 11 years from the FDA, which oversees medical devices. And the company did not launch a formal investigation of the problem until 2019 — nine years after the first wave of complaints and three years after the first known tests for the company found that the foam was degrading.

Instead, as the complaints continued to pile up in company files, Philips waged aggressive global marketing campaigns to sell more machines, including new models fitted with the hazardous foam.

The sales pitch worked: The devices went to infants, the elderly and at least 700,000 veterans. The company also promoted machines meant for some of the sickest people in the country, rolling out a new ventilator filled with the foam in the early months of the COVID-19 pandemic.

Philips didn’t stop even after the company learned the foam was breaking down in its ventilators in Japan and had to be replaced — and after tests in the United States revealed that the material released chemicals at dangerous levels. Among them: formaldehyde, a compound used in fertilizer, dyes and glues that has been tied to respiratory problems and certain cancers.

In 2018, the company called more than a dozen engineers and safety supervisors to a series of urgent meetings in Pittsburgh to investigate the problem in what eventually became known to insiders as Project Uno.

Still, the public was not warned.

All the while, people using Philips machines were suffering from illnesses that no one could explain: vomiting, dizziness and headaches, along with newly diagnosed cancers of the lungs, throat, sinuses and esophagus. One man in Philadelphia coughed so hard that he broke his ribs, and a Florida woman with a hacking cough was hospitalized for days and placed on oxygen.

“Unconscionable,” said Dr. Radhika Breaden, who scrambled at her Oregon sleep clinic to help thousands of patients who were using the devices. “We were all completely blindsided. You can’t have people inhaling black dust … without warning us.”

Dr. Radhika Breaden said she is concerned about the potential for long-term health problems from the recalled machines. (Liz Moughon/ProPublica)

To examine what happened at Philips, reporters interviewed more than 200 former company supervisors, doctors, toxicologists, patients and the relatives of those who died, and obtained company records that show officials knew about the dangers but continued to sell machines that the FDA has since said are capable of causing severe illness or death.

Reporters also reviewed thousands of complaints submitted to the company and government describing device malfunction and injuries, including more than 370 reports of deaths. As part of the investigation, the news organizations collaborated with Mediahuis NRC, the publisher of one of the largest newspapers in the Netherlands, where Philips’ parent company is located.

In a statement to the news organizations, Philips said its top priority is patient safety and that it regretted “the distress and concern” caused by the recall. “We deeply apologize for that and continue to work hard to resolve this,” the company said.

Philips said complaints about the foam were limited in the years before the recall and that the reports were evaluated on a case-by-case basis. The company added that it became aware of the potential significance of the problem in early 2021 and launched the recall shortly after that.

Former company engineers and safety supervisors, who spoke on the condition of anonymity because they still work in the industry, said top officials at Philips repeatedly dismissed a dangerous breakdown that ultimately set off a worldwide health crisis involving as many as 15 million devices.

“It was a catastrophic series of errors,” said a former compliance supervisor. “There were people who knew and knew for a long time.”

In the months since the recall, the company has walked back its initial acknowledgement of the health risks posed by the degrading foam, saying tests on the DreamStation and similar devices show the chemicals released by the material fall within safety thresholds.

“The whole product complies with safety norms,” Roy Jakobs, chief executive officer of parent company Royal Philips, said last year.

ProPublica and the Post-Gazette obtained copies of four tests carried out in 2021 that were solicited by Philips. Three experts who reviewed the results for the news organizations dispute the company’s claim and point to another finding that they say is even more alarming.

The foam tested positive multiple times for genotoxicity — the ability of a chemical to cause cells to mutate, a process that can lead to cancer.

“You’re basically changing cells,” said one engineer who was familiar with the testing. “I don’t even know if we really scratched the surface of how bad this really is.”

In New York, 58-year-old retired music teacher and father of three Mark Edwards said he’ll spend the rest of his life fearing that a sleep apnea machine caused years of respiratory infections and two benign tumors in his throat.

Edwards brought home a DreamStation in 2017 and set it up next to his bed, where he sleeps with his rescued German shepherd, Tyson. He continued using it even after he said he began to spot black particles in his mask.

“I would wash it and use hot water, and then two days later, I would see it again,” he said. “I remember thinking, ‘What the hell is this?’”

After his machine was recalled, Edwards sued the company, one of tens of thousands of people joining litigation against Philips in federal court in Pittsburgh.

Edwards stopped using the device earlier this year and said his respiratory infections went away, but in April, he traveled to Florida to undergo a second surgery on his throat. As he waited in the hospital with his sister, he clutched a gold crucifix around his neck.

“If something happens to me in surgery, I’m ready to go,” he said, and then he was wheeled off to the operating room.

Mark Edwards is prepped for surgery in April to have a second mass removed from his throat. (Benjamin B. Braun/Pittsburgh Post-Gazette) A Competitive Edge

Years before the crisis, inventor Gerald McGinnis sat in his suburban Pittsburgh kitchen next to an avocado-green stove and Betty Crocker cookbooks, fretting about patients forced to breathe through tubes inserted into their windpipes.

The mechanical engineer knew he could create something better.

Throughout the 1980s, McGinnis invented a series of breathing masks and ultimately developed the nation’s first mass-produced continuous positive airway pressure, or CPAP, machine, sold under the banner of his growing company, Respironics.

During a scientific renaissance that transformed Pittsburgh from a steel town into a hub for medical innovation, the company became a dominant player in a thriving industry that would change the lives of those struggling with sleep apnea.

In Obstructive Sleep Apnea, Throat Muscles Relax and the Upper Airway Collapses, Blocking Airflow

The disorder causes people to repeatedly start and stop breathing in their sleep, and it can be treated with a CPAP machine.

Source: Mayo Clinic, National Institutes of Health (Ed Yozwick/Pittsburgh Post-Gazette)

For the millions of people impacted by the condition, CPAP machines were game changers, allowing them to breathe normally at night — often for the first time in years.

“It was the gift from heaven,” said McGinnis, now 89, whose company grew to 4,900 employees and more than $1 billion in revenue by 2007.

Everything changed when Royal Philips, the conglomerate known for light bulbs and televisions, showed up at his door, he said in an interview with ProPublica and the Post-Gazette.

The company from Amsterdam had just purchased several medical equipment companies in the United States and aimed to take over Respironics. At first, Respironics rejected the Dutch company’s bid, but finally agreed to sell in 2007 under the threat of a takeover, McGinnis said.

“They said, ‘We want to buy the company, regardless, whether you want to do it the hard way or the easy way,’” said McGinnis, then board chairman. “In less than six months, they cleaned us out. I felt like I lost my third daughter.”

Respironics founder Gerald McGinnis, who helped develop the country’s first mass-produced CPAP machine, said he did not want to sell his company to Royal Philips. (Arturo Fernandez/Pittsburgh Post-Gazette)

Soon after taking control of the Pittsburgh company, the new subsidiary called Philips Respironics made a critical decision.

Locked in a race to make its breathing machines quieter, the company inserted the foam to muffle sound. The change was a triumph in the world of sleep apnea, a way to quiet the humming, vibrating machines that disturbed patients and their partners as they slept.

Unlike its top competitor, which chose a different foam to quiet the machines, Philips selected one made of polyester-based polyurethane, the same kind of material used in furniture, shoes and other products.

Though it is unclear why the company chose the material, Philips noted in a 2009 patent that older solutions to reduce sound were “ineffective, inefficient and/or expensive.”

It was a risky move. Studies published in scholarly journals showed the foam broke apart in heat and moisture. The company used it anyway, even though the machines send air for hours at a time into the lungs of users.

“Anybody who has half a brain cell in chemistry knows that this was a stupid idea,” said the engineer who was familiar with the recent testing.

Soon, alarming reports began to surface.

The Philips Respironics plant near Pittsburgh where some of the recalled machines were built. (Benjamin B. Braun/Pittsburgh Post-Gazette)

Watch video ➜

In June 2010, Philips found that a machine sent back to the company by a customer was contaminated with “foam particles,” FDA records show. Rather than alerting the government as federal law required, records reveal that the company kept the report about the problem in-house for the next decade.

A similar report came in the following year, describing another CPAP with “black contamination.” That, too, was not turned over to federal regulators.

Another report was also held back, this one from a patient who found particles in the tube that carries air to the nose and mouth. A complaint two years later described a 3-year-old girl who was using a ventilator with a filter that had turned black.

By the end of 2014 — about six years after Philips started using the foam — more than 500 reports from health care workers, patients and others had flooded the company in a pattern that would not be revealed to the government or the public for years, the records show.

Philips said the company had previously determined that the complaints did not need to be reported but later changed course and turned them over “out of an abundance of caution” after the FDA got involved.

In an email, the FDA confirmed that the company “was in possession of numerous complaints” that should have been submitted to the government.

In most cases, the news organizations found, Philips labeled the reports that it was late in submitting as “foam degradation” complaints. That included at least 10 reports where the patient outcome was listed as a death, though there was little information about the patient or their cause of death.

Philips Received More Than 3,700 Reports About Foam Problems Before Recalling Machines

For more than a decade, the company used the polyester-based polyurethane foam in its ventilators and CPAP (continuous positive airway pressure) machines to reduce noise. In that time, it received thousands of complaints about “dust contamination,” “black particles” and “foam degradation.”

Source: Pittsburgh Post-Gazette and ProPublica analysis of data from Device Events, which extracted data from the Food and Drug Administration’s Manufacturer and User Facility Device Experience system. (Lucas Waldron/ProPublica)

In 2015, Philips received new and troubling information from overseas. Another Royal Philips subsidiary received complaints about degrading foam in Japan, where Philips had delivered ventilators.

Philips could have alerted customers and federal regulators or moved to repair all of its machines. Instead, the machines were repaired in Japan but Philips kept using the foam everywhere else, government records show.

That same year, graphic artist and painter George Bales put a Philips CPAP machine on a nightstand in his New Jersey home, unaware of the foam hidden inside the device. Every night for the next six years, he used the machine as he slept next to his wife, a pediatrician who used to nudge him awake to make sure he was breathing.

Long retired, Bales spent hours in the kitchen, perfecting his marinara sauce for dinner parties, until he developed a sore throat and congestion that wouldn’t go away in 2021.

Doctors found a malignant tumor near one of his vocal cords. Bales, who now has trouble swallowing and uses a feeding tube inserted just above his belly button, acknowledges he may never know whether the recalled machine caused his cancer. But he said the company should have warned customers years earlier.

“No one ever informed me that this machine might be killing me,” said Bales, 78, who is suing Philips. “I’m now suspicious of everything I take into my body.”

Bales, a retired graphic artist, underwent surgery and now gets regular scans of his neck and chest to check for a recurrence of his cancer. (Liz Moughon/ProPublica) Elvis and Air Fryers

As complaints inundated the company, Philips launched marketing campaigns to sell its devices around the world, from Toronto to Paris to Sydney. In Brazil, one doctor prescribed the machines to 1,200 patients — the youngest just six months old.

The company showed up at international health conferences in Berlin and Dubai to promote the devices, in one case with the help of an Elvis impersonator.

In advertisements, Philips declared that its CPAP machines were far quieter than those put out by its top competitor. “Rediscover dreams,” the company said. In 2017, Philips offered free air fryers to anyone who bought a DreamStation.

“From the very beginning, they wanted to put CPAPs in the supermarket as a long-term project,” said Laura Adorni, a former sales director at Philips in Italy. “They already had razors, toothbrushes, aerosol devices in pharmacies and shops, so why not also have a CPAP?”

Anatomy of CPAP Machine

A common treatment for sleep apnea, a CPAP machine keeps the upper airway open to allow unobstructed breathing. The device improves sleep quality and may reduce the risk for a number of health issues, including heart disease and stroke.

(James Hilston/Pittsburgh Post-Gazette)

As the company promoted its machines, Philips cut deals beginning in 2012 with local medical equipment suppliers that sell the devices directly to patients — drawing the attention of federal investigators.

In one case, the government accused Philips of giving suppliers a coveted database about the prescribing practices of doctors. In exchange, prosecutors said, Philips expected the suppliers to recommend the company’s breathing machines, which are often paid for through Medicare and other public programs.

“Move … share in our direction,” a sales director at Philips wrote in an email to his team about the arrangement.

Prosecutors later alleged that the exchange of the database — which can cost more than $100,000 — amounted to an illegal kickback scheme and reached a settlement with Philips, which eventually agreed to pay $24 million without admitting wrongdoing. In its statement to the news organizations, the company said it agreed to settle to avoid the expense of further litigation.

In 2015, Philips was moving to dominate the market, but the foam problem threatened the momentum. That year, a company engineer questioned the supplier, emailing, “Have you ever seen this occur to the foam?” company records show.

Two and a half years later, as new complaints came in from Australia, Philips scientists were summoned to a series of emergency meetings outside Pittsburgh to come up with a plan. The day after one of the sessions, another engineer detailed the safety risk in an email to the foam supplier.

Philips engineer Vincent Testa sent pictures that he said showed “disintegrating” foam in an email to the foam supplier. (Obtained by ProPublica)

“The material sheds and is pulled into the ventilator air path. As you can imagine, this is not a good situation for our users,” engineer Vincent Testa wrote that April, sharing photos of the foam breaking apart. “I flagged this message with high importance since we are addressing a potential safety concern.”

Without alerting the FDA or the public, the company started replacing the foam in some ventilators but once again left the vast majority of machines untouched, including the widely used DreamStation, FDA records show. Testa did not respond to interview requests.

Customers weren’t told even as debris turned up on their bedsheets, pillows and faces.

Outside Indianapolis, Connie Thompson slept every night with a DreamStation by her side, next to a blanket with a picture of the Disney character Elsa.

College student Connie Thompson said she worries that the machine that helped her breathe through the night may one day make her sick. (Liz Moughon/ProPublica)

She got the machine to treat sleep apnea and used soap and water to clean out the black particles that started showing up in the tube connected to her mask, she said. Thompson, a community activist who fought for safe drinking water in her hometown, said she had no idea about the menace in her own bedroom.

“It’s almost like a betrayal,” said Thompson, now a 24-year-old college student studying public safety.

South of Baton Rouge in the Iberville Parish of Louisiana, 62-year-old Sheriff Brett Stassi said he regularly found black particles on his pillow.

He spent four years using a DreamStation before he was diagnosed with kidney cancer, rushed into surgery and put on a rigorous course of treatment. After the recall, Stassi said he learned from the FDA and others that particles released by the foam could harm the kidneys and liver.

He is hoping to complete his fourth term as sheriff before he retires to spend more time with his grandchildren, whose pictures fill his wood-paneled office, and to cheer on his beloved Louisiana State University football team.

As a longtime investigator, Stassi said he’s baffled by the company’s decisions.

“They knew about it, did nothing about it and then started working on a fix,” said Stassi, who is suing Philips. “People matter. You only get one chance to do it right.”

Brett Stassi, who recently underwent treatment for kidney cancer, is hoping to complete one more term as sheriff in his Louisiana parish. He filed suit against Philips after the CPAP machine he used was recalled. (Liz Moughon/ProPublica) The COVID-19 Surge

As the pandemic erupted and countries raced to gather ventilators to fight a virus that attacked the lungs, Philips was well positioned to meet the demand.

In March 2020, the company reached out to the U.S. government.

Nathan Naylor, a Philips vice president, emailed the Department of Veterans Affairs and included information about the V30, which featured alarms and nine settings for sick patients.

“Good for America,” Pamela Powers, the agency’s then chief of staff, wrote two weeks later. “We appreciate your company’s partnership for sure.”

That ventilator, however, was built with the problem foam and was one of about 20 models of Philips breathing machines that were later recalled.

In an email, the VA said it did not know about the foam until the recall and could not comment on the email exchange. The agency said it distributed several hundred thousand of the now-recalled machines over the years but did not say whether any were the V30s.

Naylor is no longer with the company and did not respond to interview requests.

In the spring of 2020, as the COVID-19 virus raged and thousands died, Philips boosted production of another ventilator to help ease the burden on overwhelmed intensive care units.

These, too, were built with the same foam.

Over the course of the year, operating profits from ventilators, CPAP machines and other devices soared to about $800 million, more than double what they were the year before, according to reports by Philips’ parent company.

Response from customers “remains very positive, resulting in market share gains,” Royal Philips’ then-CEO Frans van Houten said during a fourth-quarter earnings call.

During the call, van Houten made no mention of the turmoil inside the company, including internal studies that showed the DreamStation had failed emissions testing for volatile organic compounds. The chemicals can be found in everyday products, such as gasoline, paints and pesticides, but in breathing machines, the fumes can be inhaled for hours at a stretch.

“You just flooded the market with a product that had a problem,” said the former Philips compliance supervisor. “I knew it was bad. They should have fixed the problem early, a decade ago, when they had the chance.”

When contacted, van Houten said he was preparing a response but later declined to comment.

As the pandemic wore on, Philips carried out a series of new studies on the foam — all with bleak results.

About a dozen company officials began to take part in two “health hazard” evaluations in late 2020, including Gary Lotz, the head of global clinical and scientific affairs, Andy Zeltwanger, director of regulatory affairs, Erin Levering, medical safety manager, Neal Pry, manager of quality engineering, Doug Roberts, design quality engineer in safety risk management, and Dr. John Cronin, the medical leader for sleep and respiratory care, company records show. Rodney Mell, head of quality for the sleep and respiratory unit, approved at least one of the studies.

None responded to requests for comment.

The evaluations showed that the deteriorating foam and the chemicals released by the material could cause “serious injury, life-threatening or permanent impairment.”

Both summed up the risk with a single word in capital letters: “UNACCEPTABLE.”

Mounting Injuries

Inside Philips, engineers were working on another new device that would ultimately replace the company’s first-generation DreamStation.

In April 2021, Philips unveiled the DreamStation 2, a sleeker and more advanced model with a color touch screen and more personalized settings. Another change separated the new model from the old one: Philips chose different foam, one that would hold up in heat and humidity.

With the launch of the new device, the company’s stock price reached a high of $61 a share — more than double what it was five years earlier.

It was only then, during a late-April earnings call with investors, that Philips for the first time revealed that the foam it had used for years in millions of machines was at risk of breaking down.

“Regretfully, we have identified possible risks,” said then-CEO van Houten, adding that the company had set aside 250 million euros to deal with the problem. “We are taking proactive action here.”

Van Houten went on to reassure investors: “The device is safe to be continued to use to the best of our knowledge at this time.”

The company alerted the FDA but said nothing to its customers — news reports at the time were largely limited to the company’s positive earnings. Over the next six weeks, more complaints came in, one after another:

“Black particles are found in the filter. She had been spitting green phlegm,” noted one report in May.

Another report in June: “Caused the patient to develop lung nodules.”

Philips Withheld Thousands of Complaints About Foam Problems From the FDA

After Philips issued a recall in 2021, the company turned complaints over to federal regulators, including more than 2,500 that it had withheld for more than two years.

Source: Pittsburgh Post-Gazette and ProPublica analysis of data from Device Events, which extracted data from the Food and Drug Administration’s Manufacturer and User Facility Device Experience system. (Lucas Waldron/ProPublica)

Not until the middle of that month did the company announce a voluntary recall, acknowledging that the foam could release chemicals or break into particles capable of causing life-threatening injuries.

Philips said potential health problems included asthma, dizziness, vomiting, respiratory-tract irritation and “adverse effects” to organs including the kidneys and liver. The company also said the material could present a cancer risk.

“It’s one of the two or three worst things I have ever seen,” said Dr. Sidney Wolfe, a longtime medical researcher and founder of Public Citizen’s Health Research Group in Washington, D.C. “It was unacceptable to sell these machines.”

After the recall, then-CEO Van Houten said the company had used the foam since 2008. “I very much regret the impact of the … recall on patients, care providers and shareholders,” he said.

The true extent of the crisis may not be known for years.

As news of the problem spread, customers and others stepped forward by the thousands, describing emergency room visits and sudden illnesses in reports submitted to Philips and the government. The reports detailed nearly 2,000 cases of cancer, 600 liver and kidney illnesses and 17,000 respiratory ailments.

If you have questions about the Philips recall, including what experts say about the health risks, what to do with your device and whether you should stop using your machine, read the FDA’s frequently asked questions page.

“Recurring sinus infections, inflammation, chest pain,” one CPAP user wrote in July 2021.

“I have constant headaches,” another said in December. “Now I am living in my own hell on earth.”

In several cases, the reports described patients who inhaled pieces of foam.

“Caused a patient to vomit,” one report said that month. “The patient was unable to remove the mask and expired.”

In a Philadelphia apartment he shares with two cats, lawyer Roger Traversa broke several ribs while coughing two years ago. In the hospital, doctors drained two and a half liters of fluid from the wall of his lungs.

After his CPAP machine was recalled, he went to a local flea market and spent $60 on another device made by a Philips competitor.

“I feel much better,” said Traversa, who is also a plaintiff in the ongoing lawsuits. “Now I can go … most of the day without having a coughing fit that drives people nuts. It was a great relief.”

Philips said the reports of illnesses and injuries are not evidence that its devices caused harm. But six medical experts who spoke to ProPublica and the Post-Gazette said the complaints are an indisputable indicator of a sprawling public health crisis. They said more harm is likely to emerge in coming years, much as the effects of tobacco and asbestos only became clear decades later.

“If you shoot tiny pingpongs down airways to obstruct the lungs, you can imagine the potential consequences,” said Dr. Robert Lowe, a retired emergency room physician and public health researcher in Oregon who used a DreamStation before it was recalled.

Dr. Robert Lowe in Oregon used a now-recalled Philips DreamStation for about two years. (Liz Moughon/ProPublica)

Philips has pointed to studies from France and Canada that found Philips CPAP users were not at higher risk of cancer. But those studies described limitations: The analysis in Canada lacked information about whether patients used their machines regularly and the researchers in France acknowledged that more time and a larger sample size could produce more definitive results.

John James, former chief toxicologist for NASA, said it’s far too early to assess how much damage has been done.

“You can’t trivialize the problem,” said James, who was responsible for ensuring that astronauts had clean air. “You’re basically putting this in the air stream of a human being breathing straight through that material.”

Other claims by Philips have also been met with skepticism.

The company has frequently pointed to an ozone cleaner used by some customers to disinfect their devices, saying the product accelerated the breakdown of the foam. But the FDA has said that the machines themselves, not the cleaners, presented “unreasonable risk to patients.”

Philips has also said that only a small number of recalled machines showed evidence of disintegrating foam after a visual inspection. But a 2021 report by experts in the company, obtained by ProPublica and the Post-Gazette, concluded that there was no way to tell by simply looking how much the foam had broken down.

Since the recall, the company has said that testing on the DreamStation and similar devices shows the chemicals released by the foam — including phenol, which can cause lung damage and dizziness — are not at levels that can cause “appreciable harm” to patients.

The company acknowledges that the foam tested positive for genotoxicity — its own experts described “uncontrolled cellular replication” — but said that a third-party assessment still concluded the machines are unlikely to cause harm.

The three experts consulted by the news organizations said that’s not possible. While safety thresholds for chemical emissions vary and findings can be open to interpretation, genotoxicity means that one or more chemicals are changing cells, the building blocks of the human body.

“You can’t make the argument that it’s safe. That’s bad science,” said the engineer familiar with the Philips testing. “It’s a real-life failure that shows you have a problem. There’s no ambiguity. There is unacceptable risk. Full stop.”

The company’s ventilators also tested positive for genotoxicity; Philips said the devices are still being assessed.

The safety claims have raised concerns among employees and others involved in the testing, interviews and text messages show. In August 2021, two months after the recall, one Philips engineer sent a series of texts to a colleague about a lab hired by Philips to test the foam.

“It was obvious that he was trying to pass the device by any method that would work,” the engineer wrote.

In its statement, Philips said the tests were conducted “in the most rigorous and objective manner possible.”

Documents related to the testing were turned over to the Justice Department earlier this year in what has become a sweeping investigation into the company’s testing practices and safety claims, according to sources familiar with the matter. Through a spokesperson, the Justice Department declined to comment.

Philips has acknowledged that it is in discussions with federal prosecutors and that the company received a subpoena last year for information about the events leading up to the recall.

“It’s All About Money to Them”

Now, more than two years after the recall announcement, patients say they are desperate for information about what went wrong.

In Louisiana, 56-year-old Army veteran Jules Lee said he still doesn’t know whether his nagging headaches and sinus congestion were caused by the Philips CPAP machine that he used for three years. He stopped using it about six months before the recall even though he suffers from sleep apnea and worries about dying in his sleep.

“I’m fearful and untrusting,” said Lee, who struggles with post-traumatic stress disorder after serving in the Gulf War in the early 1990s.

Army veteran Jules Lee used a Philips CPAP machine for three years and said he feared for his health. (Liz Moughon/ProPublica)

More details about the health risks are expected to emerge through the ongoing federal lawsuits in Pittsburgh. Earlier this month, the company reached a settlement in one of the cases, agreeing to pay at least $479 million to reimburse customers and others for the costs of the defective machines.

Other legal challenges are still ongoing, including more than 600 personal injury claims and a class-action suit seeking ongoing medical monitoring and research on the dangers posed by the devices. In court documents, the company argued that the lawsuits failed to prove the machines were responsible for injuries and illnesses.

In recent months, parent company Royal Philips has sought to distance itself from the crisis. During a shareholder meeting in May, new CEO Jakobs said the U.S. subsidiary had received complaints about the devices beginning in 2015. “They did some action and they closed it and carried on,” he said, without elaborating.

Jakobs himself, however, was in charge of overhauling the division that produces sleep apnea machines and ventilators as the internal crisis unfolded and as Philips was pitching devices that contained the foam during the pandemic. Through the company, Jakobs did not respond to interview requests.

Royal Philips CEO Roy Jakobs at the company’s annual shareholder meeting in May (Isa Wolthuis for NRC)

Two former company managers said it’s likely officials in Amsterdam were aware of the crisis, given the scale of the problem and the importance of the devices to the company’s bottom line.

“I truly believe those folks knew about it all along,” said the former regulatory supervisor at Philips. “They tried to keep it pinned down as much as possible.”

McGinnis, the founder of Respironics, said Philips breached a fundamental tenet in the medical device industry by not acknowledging the problem early on.

“We had a lot of products we had to shut down,” he said. “You worry about it, think about it, look into it. You have to take on the responsibility. You can’t blame it on somebody else.”

In New York, Edwards, the longtime music teacher, is still recovering from his second throat surgery. He spends most of his time in an apartment he shares with his wife and dogs. Drumsticks from his years as a heavy metal rocker sit untouched in a display case on the wall.

Now using a refurbished CPAP machine, Edwards said Philips should be held accountable for failing to warn its customers about the dangerous defect long ago.

“It’s all about money to them — that’s the bottom line,” he said. “One day they’ll have to answer for what they’ve done.”

Edwards, the retired music teacher, said he still struggles with debilitating health conditions after years of using a recalled Philips machine. (Liz Moughon/ProPublica)

Watch video ➜

Help ProPublica and the Pittsburgh Post-Gazette Investigate the Recall of Philips Respironics Breathing Machines

Reporting was contributed by Molly Burke, Margaret Fleming, Susanti Sarkar, Nicole Tan, Claire Gardner, Bridgette Adu-Wadier, Aidan Johnstone, Kelly Adkins, Haajrah Gilani, Juliann Ventura and Grant Schwab of Northwestern University’s Medill Investigative Lab.

Additional design and development by Lucas Waldron.

by Nicole Carr

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Jill Joy pointed her cellphone camera at the security guards gathered near the doors to the middle school auditorium, where the Webster Central School District Board of Education meeting was about to start. Panning the scene for her livestream viewers that cold evening in February 2022, she noted, “They’ve brought in extra security. Say ‘Hi,’ you fucking tools.”

Joy was among a group of parents in suburban Rochester, New York, who’d dubbed themselves ROC for Educational Freedom. Two years earlier, in 2020, they’d created a Facebook group to organize against what they perceived as “drastic” and “deranged” COVID-19 safety measures in suburban Monroe County school districts. Then in the summer of 2021, Joy landed in a local news story when she stood before the Webster school board cupping her hand over her young daughter’s mouth to mimic a mask. “If you saw this, you would see that this is abuse and you would stop it,” she’d declared.

Now, as Joy livestreamed the scene, a handful of parents huddled with her just inside the entrance to the middle school. Dressed in jeans and puffy winter coats, they were trying to decide the best way to break the rule requiring that they wear masks to attend the meeting. “They’re going to try to put us in a classroom and segregate us,” one woman warned.

Ken Mancini, a retired jail officer turned school district security supervisor, was one of the guards captured on Joy’s livestream. It was Mancini’s job to enforce the state’s mask mandate that evening. As Joy and the other parents approached him, one father, Dave Calus, asked, “Where are you keeping those segregated people?”

“In the room down the hallway,” Mancini responded, pointing the unmasked parents in that direction.

Over the squeaking of the group’s shoes on the hallway’s shiny floors, Joy said: “When your children don’t comply, this is their walk of shame to their classroom where they go into false imprisonment.”

Almost as soon as the parents got to the room, they turned around to head back to the meeting, acting on an earlier suggestion to gain entry wearing masks and then take them off. “They’re not going to arrest us all for trespassing, right?” one woman asked.

“Yeah, exactly,” Calus responded.

“Let’s go in and see,” Joy said.

Less than a minute after they walked into the auditorium, Mancini started making rounds, asking people in the group who’d removed their masks to put them back on. One by one they ignored or argued with him. When one woman refused, Mancini picked up her cup and a stack of papers she’d set down on the staircase where she was seated. “That’s it. Time to leave,” he said, putting his hand on the woman’s back and motioning for her to exit.

“Don’t leave, make them call the police,” Joy said as she livestreamed Mancini escorting the woman out.

Then, as a first grader was preparing to give a presentation about Lunar New Year traditions in Chinese culture, Mancini tapped Calus on the shoulder.

“I realized it was a setup after the evening ended,” Mancini later recalled to ProPublica. “But at some point you have to do your job. Because if you ignore one, then you have to ignore them all.”

What happened next, depending on whom you ask, was a security guard either enforcing district rules or going too far. Calus was never charged with trespassing that night, but Mancini did wind up facing a criminal charge.

Mancini is among 59 people identified by ProPublica who were arrested or charged as a result of turmoil at school board meetings across the country from May 2021 to November 2022. While most of those people were parents or protestors who disrupted the meetings by railing against mask mandates, the teaching of “divisive” racial concepts and the availability of books with LGBTQ+ themes in school libraries, Mancini’s incident was different. It’s the only case ProPublica could find in which a member of a school district’s security team was charged for ejecting a parent from a school board meeting.

The Monroe County district attorney’s office did not answer ProPublica’s questions. Joy declined to be interviewed.

Calus and Mancini had crossed paths before. During a May 2021 school board budget hearing, Calus and other parents had yelled from the audience about there not being a public comment period — and Calus said that, as a result, Mancini and a police officer asked him to leave. He also said he did not believe Mancini had the authority to remove him and only complied because a police officer was involved.

Calus told ProPublica that when he showed up at the February 2022 meeting, there wasn’t a preexisting agreement with the other parents to cause a scene or get someone in trouble. “We didn’t plan to meet together,” he said. “We didn’t conspire together.”

Tammy Gurowski, who was president of the Webster school board at the time of the February 2022 incident, recalled that in the months before the incident, board members paid attention to the grievances parents expressed on social media. “It wasn’t the majority, but it was a very angry, very frustrated minority,” she said.

She also said the board attempted to recognize the parents’ concerns and that board members were aware of the growing unrest at nearby school board meetings.

“I think for us as a board at that time, we just saw that it’s just fracturing the whole premise of what public education was designed to do — and that is, educate every child without all those issues at play.”

The Webster middle school where the Webster Central School District Board of Education had the February 2022 meeting (Matt Burkhartt for ProPublica)

Webster, a predominantly white, middle-class town of roughly 45,000 people, is among dozens of small towns in the U-shaped band of suburbs that surround Rochester. In that swath of Monroe County, small groups of organized parents have accused multiple school boards of indoctrination and creating unsafe conditions.

At a June 2021 meeting in nearby Penfield, a mother bemoaned the district’s “scary” diversity, equity and inclusion efforts, suggested that the board was pushing a transgender agenda and told members to understand that the students “are God’s children.” A short time later, a father in the audience yelled that one of the board members should be respectful of parents. The board member yelled back, “You’re not going to stand up here and do anything to me, asshole!” — prompting the father to jump on the stage and confront the school board member face-to-face.

In the months before the incident in Webster, four parents were arrested for disrupting other meetings in neighboring school districts. Charges against all four were dismissed.

In October 2021, in a suburb on the other side of Rochester, members of the Hilton Central School District board adjourned a meeting after asking the sheriff’s office to assist with disruptive parents. One parent who refused to mask was charged with trespassing. Two others faced charges for refusing to leave the property. Parents would go on to lead an effort to ban a book with LGBTQ+ themes from the district. The superintendent would later say the book was cited in a bomb threat made against the district. Two similar anti-LGBTQ bomb threats followed. Agencies, including the FBI, concluded the threats were a hoax, sent anonymously from an overseas server.

In an incident similar to the one in Webster, a parent in nearby Fairport named Shannon Bones livestreamed her arrest at a school board meeting during which she’d kept her mask lowered. Bones later appeared on “The Megyn Kelly Show,” where she alleged she had been singled out for arrest. She went on to claim that this particular meeting “was very different than previous meetings” because the board had “worked with” a group called Black in the Burbs and that the group had “brought in activists.”

Immediately after that August 2021 meeting, there was a shouting match between two groups of parents in the parking lot. One group included Bones, who’d been released by police at the scene, and an opposing group coalesced around Tiffany Porter, the founder of Black in the Burbs. Porter said she had posted a photo of a young man on social media after, she alleged, he threatened her as a result of her activism, and the man’s mother was with Bones in the parking lot. Bones denies having anything to do with the confrontation.

“You made it personal, bitch! You made it personal!” the mother yelled in a video recorded by one of Porter’s friends.

“I don’t know who your son is,” Porter replied.

“Go wear your mask!” another woman shouted after the groups continued their back-and-forth yelling.

“Go fuck yourself,” Porter snapped back.

A prosecutor dropped trespassing charges against Bones within three weeks. But Bones continued to use the case as a rallying cry against government overreach, filing a wrongful arrest lawsuit seeking $17 million in damages. The case is ongoing.

Bones told ProPublica that her arrest was “violent aggression” against parents attempting to exercise their rights: “I think we are somewhat in the middle of the righteous battle over who is going to control the education and upbringing of children.”

Porter, a Black, queer woman who’d responded to George Floyd’s murder by launching Black in the Burbs and organizing protests during the summer of 2020, says she was not plotting against Bones or working with the board. But she said she did expect trouble at meetings because online vitriol was flaring. “We were in and are still in a civil war when it comes to public education,” she said.

At the February 2022 meeting in Webster, after Mancini tapped him on the shoulder, Calus didn’t budge. Mancini then gripped the back of the rolling chair Calus was sitting on and tried to wheel it toward the exit. When Calus lunged forward, Mancini grabbed the back of his jacket.

“What the fuck are you doing?” Joy screamed as she kept livestreaming. “That’s assault!”

Calus’ coat slid off and he sat back in his chair. Mancini stepped in front of him, pointing to the door. Another security guard grabbed Calus as Mancini shoved the chair toward the exit. Three guards pushed Calus out of the auditorium.

The meeting continued as Joy and others yelled about Mancini’s actions. “The cops should have arrested this fucking guy instead of them throwing Dave out,” she said.

Watch video ➜

An attorney named Chad Hummel was at home watching Joy’s livestream but had stepped away before the incident with Mancini. “In the meantime, my phone literally starts buzzing off the counter,” he later recalled on a friend’s podcast. “I’m getting text after text after text after text. I read my text messages, and somebody tells me that Dave Calus just got quote-unquote manhandled and dragged out of the place. So I immediately texted Dave.”

Calus said he met Hummel in 2021 when the attorney offered his office as a meeting place for parents to give depositions in a lawsuit they had filed against 15 local school districts over COVID-19 protocols, hoping to force schools to reopen for in-person instruction. Calus was one of nearly 30 plaintiffs in the suit, which was dismissed six months later.

That year, Hummel started hosting a show on the We The People Podcast Network, a local platform of political programs that aims to “bring the right and the left together” and allow “both sides to present their similarities.” Yet Hummel’s show promised “to break down the hypocrisy of the left and fight for the right.” He would later tell his listeners that the FBI had questioned him about being at the Capitol on Jan. 6.

Prior to the incident involving Calus, Hummel had stepped in to represent a local woman who was arrested for confronting a school district employee over the masking policy. In that case, the woman faced charges for allegedly assaulting a school bus monitor who tried to make her son wear a mask. (Police said the woman also encouraged her child to punch the bus monitor; there’s no record of the outcome of the case.) Months before that, Hummel himself had been arrested in his own kid’s school district. He had refused to mask at his son’s baseball game and then refused to leave when security tried to escort him out for breaching district policy. He was charged with third-degree criminal trespass and was preparing for his own trial when Calus’ incident landed on his radar.

Hummel, who was later acquitted, did not respond to ProPublica’s questions.

Calus said that the night of the incident, Hummel recommended he call the Webster Police Department to press charges against Mancini and said that an officer came to his home to take a statement. The Webster Police Department did not respond to ProPublica’s questions.

Calus also said he’d wanted the media to cover the incident. He recalled that, though he’s a registered Democrat, “nobody on the left wanted to pick it up.” So he ended up on conservative programs. “I was willing to give interviews to anybody who was willing.”

The day after the incident, with Hummel at his side, Calus was a guest on a We The People Podcast Network show hosted by Hummel’s friend. Two days later, Calus and Hummel were featured guests on Greg Kelly’s show on NewsMax and the “Hannity” show on Fox News.

“There’s been political overreach and control over our kids for so long,” Calus told Sean Hannity. “And we haven’t been asking for a ban on masks. All we want is a choice. We deserve the right to choose whether our kids go to school with a mask or not.”

A week later, Hummel said he had an important announcement to make about the case on a “bonus” episode of his podcast: “My Information at this point is that Mr. Mancini was in fact charged today in Webster town court.” The Monroe County district attorney’s office had charged Mancini with second-degree harassment.

At around the time of Calus’ media appearances, Mancini and his family began receiving alarming messages on Facebook.

“I wouldn’t be surprised if your scumbag ass catches a beating,” one message read. “You better be careful who you put your hands on.”

“Are you one of the rent-a-dick brown shirt Nazis in the video of the school board meeting, assaulting a peaceful taxpaying father?” said another message.

Mancini said he had to shut down his Facebook page because the messages kept coming. “They posted on different accounts that they were going to come by my house and do a citizen’s arrest,” he said. “I would get anonymous phone calls about different stuff. Got to the point I wasn’t even answering my phone anymore unless I knew the person that was calling me.”

Meanwhile, many people who’d watched Joy’s livestream, which racked up 185,000 views, sympathized with Calus. In one of the 1,600 comments, one man compared him to Rosa Parks “who refused to give up her seat on a bus” and to anti-segregation student protestors who “quietly sat in at lunch counters while enduring all kinds of physical and verbal abuse.”

In September 2022, Mancini arrived for his trial in Judge David Corretore’s courtroom. He was represented by the high-profile defense attorney Joe Damelio, a childhood friend who had previously defended several politicians charged with federal crimes.

The trial lasted two and a half hours. The judge found Mancini not guilty of harassing Calus.

Details of the trial and the case are scarce. Damelio did not respond to a request for comment. A spokesperson for the Monroe County district attorney’s office stated that court and police documents had been sealed, consistent with New York law, because Mancini was acquitted. After an initial interview with ProPublica, Mancini declined further comment, referring interview requests to his employer, the Webster Central School District. The district did not respond to repeated requests for an interview or to written questions.

Calus said he was disappointed by the outcome of the case. “It’s not like I wanted Ken to go to jail,” he said. “But I would have thought the judge would have said, ‘Yeah, you know what, Dave, you didn’t deserve that. Your rights were violated. We’re gonna give Ken a slap on the hand.’ But realistically, that’s not what happened.”

Calus never publicly acknowledged the acquittal, which received no media coverage.

“My ex-wife tells me every once in a while, ‘I ran into so-and-so and they still think that you’re a loser for what you did in 2022.’ And I just didn’t need that shadow following me everywhere, constantly,” Calus said of his silence after the case.

But Calus briefly returned to the public eye. This year, he ran for a seat on the Webster Central School District board. He lost his bid in May.

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by Paul Kiel

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For the past quarter century, Intuit, the maker of TurboTax, has worked to thwart one clear threat to its profits: a free, publicly funded tool to file taxes online. The company’s success at preventing that threat was near total — until earlier this year, when the IRS announced a plan to test such an approach. Advocates cheered, seeing it as a first step to a system where Americans, particularly low-income taxpayers, could easily avoid paying big fees for tax preparation.

It’s a new chapter in the long-running conflict over free tax filing, but Intuit has fallen back on some tried-and-true tactics, ones previously documented by ProPublica. In Washington, D.C., the company has deployed 63 lobbyists this year, according to OpenSecrets, to stalk the halls of government. Meanwhile, op-eds and stories that parrot Intuit’s talking points have appeared in at least 20 newspapers and other publications across the country.

The centerpiece of this PR push has been an argument that Intuit unveiled on its website in May. Seeking to capitalize on recent research that found racial disparities in IRS audits, the company has argued that an IRS tax filing tool would only make things worse. It’s a conclusion rejected by authors of that research, but the idea has certainly made for some eye-catching headlines.

“IRS Free Tax Service Could Further Harm Blacks,” is how the Defender, a Black paper in Houston, put it in a June headline. The piece cited unnamed “industry experts” as raising the concern but quoted only one person by name: Intuit’s spokesperson Derrick Plummer. The story was produced by Trice Edney News Wire, a service that provides content to local Black papers across the country. Hazel Trice Edney, the service’s editor-in-chief, did not respond to requests for comment.

Later that month, an article in Black Enterprise (“Critics Claim The IRS Free Tax Prep Service Could Hurt Black Americans”) took a similar approach. The story’s arguments were attributed to “industry skeptics” or other unnamed opponents of the IRS proposal, while Intuit’s Plummer was the only critic identified by name, and he was quoted at length. Ida Harris, Director of Digital Content for Black Enterprise, which touts itself as “the premier business, investing, and wealth-building resource for African Americans,” told ProPublica that “the story came to fruition through information shared by a fellow media professional,” but declined to identify who that was. The article was “not sponsored content, no payola was involved,” she said.

Internal Intuit documents from last decade, previously divulged by ProPublica, made clear that “pushing back through op-eds” was part of the company’s strategy against what it called government “encroachment.” One specific goal: “Buy ads for op-eds/editorials/stories in African American and Latino media.” ProPublica did not find evidence that Intuit has paid to place stories this year, but otherwise, the 2023 campaign seems to be following that template.

TurboTax has long dominated the market for online tax filing, in part by luring customers with the promise of “free” filing. A wave of government investigations, prompted by ProPublica’s reporting, has accused Intuit of frequently misleading customers with that promise. Most recently, a Federal Trade Commission judge ruled that the agency’s fraud suit against Intuit can proceed. Intuit has denied wrongdoing and has vowed to appeal.

Back in 2014, ProPublica reported on an Intuit-backed campaign against the idea of return-free filing, a government service that would pre-fill tax return information, just as governments do in many other countries. A rabbi, a state NAACP official and others penned pieces claiming return-free filing would hurt “the most vulnerable people.” Various PR firms and lobbyists were involved in organizing the effort.

This time around, the threat to the tax prep industry is what the IRS has called a direct file option. The agency will build an online tool similar to TurboTax that allows people to file their taxes by answering simple questions. The option will not be widely available next tax season, however, since it is only a test run. The agency has yet to detail who will be eligible to use it.

“The fact of the matter is that the industry is targeting black and brown communities trying to stoke fear of a direct file tool,” said Brandon Tucker, senior policy director of Color of Change, an online activist organization devoted to racial justice that supports direct file. “Black people are critical to their profit margins.”

In a statement, Plummer, Intuit’s spokesperson, declined to comment on the company’s role in the recent spate of op-eds, except to deny it had paid to secure the pieces. “With an idea as bad as the Direct File scheme we don’t have to pay anyone to talk about how terrible it is,” he wrote. “The fact that Americans across the political spectrum and people of color are raising alarm bells about how harmful the Direct File scheme will be to the most vulnerable should be a wake-up call to its cheerleaders.”

In July, Benjamin Chavis penned the highest profile entry in the current wave of Intuit-friendly op-eds. Chavis is a former executive director of the NAACP who currently heads the National Newspaper Publishers Association, a trade association for Black papers. He also is the national co-chair of No Labels, which seeks to raise $70 million to launch a third-party presidential ticket for 2024. (“Dr. King was a centrist” and would have supported No Labels, Chavis has argued.) Chavis did not respond to questions from ProPublica. His Chicago Tribune op-ed did not quote Intuit, but used language that echoed the company’s arguments. “The IRS has an alternative to TurboTax. But will that widen the racial wealth gap?” was the headline.

One of Chavis’ arguments, that an IRS tool could lead Black taxpayers to miss out on tax credits, came from a report by the Progressive Policy Institute. Despite its name, the nonprofit think tank is aligned with the pro-business wing of the Democratic Party and has a long history with Intuit. (One Intuit document listed PPI as part of its “coalition.”) After the company’s long-tenured chief lobbyist retired, he joined PPI’s board. PPI declined to say whether Intuit had contributed to the organization. In a statement, PPI President Will Marshall said, “No funding source has a vote on the subjects PPI tackles or the positions it takes.”

The core of Chavis’ piece was the same as the earlier stories by Trice Edney News Wire and Black Enterprise — an argument from an Intuit blog post.

Earlier this year, a study by a team of academic and government researchers found that the IRS audited Black taxpayers between three and five times the rate of other taxpayers. As a result, Intuit argued, having the IRS prepare the taxes of Black taxpayers “would likely increase these inequities.” Chavis more timidly offered that it “may increase racial income inequality.”

The study itself, however, lends no support to that conclusion. The authors pinpointed audits of people who claim the earned income tax credit as the driver of the racial disparity. The EITC is one of the main anti-poverty programs in the U.S. and is aimed primarily at low-income, working parents: Most recipients earn under $20,000 a year. For decades, the IRS has disproportionately audited EITC claimants because of pressure from Republicans in Congress as well as laws that require a special focus on “improper payments.”

Together with the gutting of the IRS’ budget, which caused audits of the rich to tank, the focus on the EITC meant the agency audited those who claimed the credit at about the same rate as the top 1% of taxpayers by income. Another clear consequence was that Black taxpayers, who on average have lower incomes, were disproportionately audited. ProPublica examined these problems in articles in 2018 and 2019. One of those articles reported that “the five counties with the highest audit rates are all predominantly African American, rural counties in the Deep South.” ProPublica’s work was cited in Congress as well as in the study.

The researchers found that the way the IRS selected EITC audits made the disparity even worse, but put the blame on “seemingly technocratic choices about algorithmic design,” not conscious bias.

Evelyn Smith, one of the co-authors of the study and a Ph.D. candidate in economics at the University of Michigan, disagreed with Intuit’s take on her work. “With free, assisted filing, we might expect EITC claimants to make fewer mistakes and face less intense audit scrutiny, which could help reduce disparities in audit rates between Black and non-Black taxpayers," she said.

Last week, in response to the study’s findings, the IRS announced major changes to how it audits EITC claims. The agency will “substantially” reduce the number of EITC audits, said IRS Commissioner Daniel Werfel. The move is part of the IRS’ broader shift to focus more on high-end tax evasion.

The recent PR push against direct file has not been limited to Black publications and authors. In Nevada, a pair of accountants and the state’s former controller penned op-eds in local newspapers with almost the same wording. “We urge Nevadans to speak out about this congressional proposal and urge our elected officials in Washington D.C. to not let the IRS have more power than it already has!” said one. “I urge all Nevadans to speak out about this Congressional proposal and urge our elected officials in Washington D.C. to not let the IRS have more power than it already has!” said the other. Neither the writers nor the editors of papers they appeared in responded to requests for comment.

In Arizona, a lawyer named Phillip Austin, vice chair of the East Valley Hispanic Chamber of Commerce, argued in the Arizona Republic in July that the IRS providing free tax filing “would disproportionately hurt the Hispanic community.” Austin told ProPublica that he was not compensated for writing the piece. “I submitted the letter as an Op-Ed, reflecting my opinion, citing research,” he said, but declined to say how he came to write it.

Meanwhile, there’s been a steady supply of op-eds and letters from right-leaning and centrist nonprofits denouncing direct file in politically oriented Washington, D.C., publications. In July alone, The Hill ran four op-eds against the idea. One came from Center Forward, a group that says it aims to “give voice to the center of the American electorate.” Recently listed as among the group’s “stakeholders” was H&R Block’s chief lobbyist. Neither Center Forward nor H&R Block responded to requests for comment.

While the op-eds keep coming, the tax prep industry did get one early win in Congress. In July, the House Appropriations Committee passed a provision barring the IRS from spending money on “a free, public electronic return-filing service option.” A similar provision almost became law in 2019.

This provision is unlikely to pass in the Democratic-controlled Senate, however. Instead, the IRS is on track to launch its direct file pilot next tax season. What happens after this spring is unclear — except that Intuit will continue to work to make sure the idea goes no further.

by Lulu Ramadan, The Seattle Times

This article was produced for ProPublica’s Local Reporting Network in partnership with The Seattle Times. Sign up for Dispatches to get stories like this one as soon as they are published.

In its early days as a major aircraft manufacturer, Boeing was remarkably open about toxic chemicals flowing from its factory into the neighboring Duwamish, Seattle’s only river and a longtime source of food, tradition and culture for Indigenous people.

In fact, the company described the Duwamish River as “a natural collector for Boeing’s fluid wastes” in a 1950 magazine article Boeing produced for its employees. Boeing said at the time that it had a handle on the situation — asserting, for example, that some of its most volatile waste would be neutralized by chemicals released by other polluters.

Today the waterway is among the nation’s most contaminated, a full-scale cleanup is scheduled to begin next year, and Boeing is deep in negotiations over how to split the cost with other leading landowners on the river: the city, adjoining King County and the Port of Seattle.

As with most negotiations conducted under the nation’s Superfund cleanup law, the parties agreed long ago to keep details of their talks secret. But a short-lived lawsuit, filed by the port last year and withdrawn in June, offered a glimpse of a staggering dollar figure that’s never been part of the public discussion.

In court papers accusing Boeing of trying to slough off its share of the cleanup bill, the port said the total cost could top $1 billion. The sum is more than double any estimate previously made public, and it would make the Duwamish one of the nation’s costliest cleanups on record. Government websites still put the cost at about $340 million.

The dollar amounts alluded to in the 2022 lawsuit point to a high-stakes and largely hidden deliberation between the region’s biggest government players and a major company born in Seattle more than a century ago.

A dredge operates in front of Boeing’s property, at bottom, on the Lower Duwamish Waterway in 2014. Full cleanup will involve dredging contaminated soil from 5 miles of river bottom. (Alan Berner/The Seattle Times)

Whatever the parties agree to, taxpayers may never know whether the cost split was fair because how the decision was reached is intended to remain secret.

This month, in response to questions from The Seattle Times and ProPublica, Boeing said it was the port that is refusing to do its part.

Local Government Agencies and Boeing Have Spent More Than $200 Million Cleaning Up “Early Action” Sites in the Duwamish Superfund Area Since 2001

A full-scale cleanup is scheduled to begin next year. The Port of Seattle says it could cost $1 billion, which would make it one of the nation’s costliest Superfund cleanups.

Sources: EPA, Lower Duwamish Waterway Group (Lucas Waldron/ProPublica)

“We were extremely disappointed in the Port’s refusal to pay its equitable share of the cleanup and in their decision to subsequently file and then dismiss a lawsuit,” the company said in a written statement.

Boeing declined to comment on the private negotiations or disclose the exact amount it agreed to pay, but it said that the company expects to spend “hundreds of millions of additional dollars.”

This summer, Boeing joined with the city and county in issuing a separate statement saying the lawsuit’s allegations do not affect their “ongoing and lasting commitment to restoring the water quality of the Lower Duwamish for people, salmon, and orcas.”

“The City of Seattle, King County, and Boeing will continue to work to advance the cleanup to benefit this generation and those that will follow,” the joint statement reads.

The port continues to claim, as it did in its lawsuit against Boeing, that negotiations could saddle taxpayers with “tens of millions of dollars” in costs for which the company is liable.

Meanwhile, people who have waited for the Duwamish to be restored say they worry about the lack of information available to the public.

“The reality is there isn’t a lot of transparency,” said Paulina López, executive director of the Duwamish River Community Coalition, a federally recognized task force dedicated to representing community interests in the cleanup.

What advocates say worries them even more is the possibility that an impasse over who pays, two decades into the river’s Superfund listing, will mean yet further delays in restoring the river.

In 1922, the original meandering course of the Duwamish River was still visible after dredging opened up a straight, deepened waterway to create industrial land south of downtown Seattle. (Seattle Times Archives)

Two centuries ago, as white settlers began to develop the land, Native tribes successfully negotiated for their fishing rights on the Duwamish River to preserve a cultural touchpoint and vital food source. The city of Seattle eventually recognized the river’s value as a pathway for transporting cargo. It scraped away the winding river’s marshy banks, straightened its natural bends and dredged its floor.

What was once a complex ecosystem of mudflats, native plants and spawning fish became a sprawling industrial corridor.

Boeing’s first factory was next to the Duwamish River in this wooden building, photographed in 1917, which came to be known as the Red Barn. It was relocated and restored, then opened to the public in 1983 as part of the Museum of Flight. (Seattle Times Archives)

Boeing found a home along the Duwamish in 1916, launching an operation from an abandoned shipyard where it built seaplanes. In the 1930s, the company developed the nation’s first four-engine bomber, and the federal government eventually ordered about 7,000 B-17s over the course of World War II. By the end of the war, Boeing’s plant along the Duwamish expanded to nearly 1.7 million square feet.

It ultimately became one of the largest landowners in the industrial district, but publicly owned facilities also contributed toxins: water runoff tainted with chemicals from the city’s steam plant, pollution from the port’s cargo terminals and unfettered sewage dumped from King County’s wastewater system.

The river is now contaminated with heavy metals and cancer-causing chemicals, including polychlorinated biphenyls (PCBs) and polyaromatic hydrocarbons (PAHs).

A public health warning about eating fish from the polluted waterway at Duwamish River People’s Park in Seattle’s South Park neighborhood. (Kevin Clark/The Seattle Times)

Along the river now are large health advisory signs warning the public not to eat bottom-feeding fish and to limit consumption of certain salmon, a warning system King County calls “Fun to Catch, Toxic to Eat.” Even direct contact with river mud is a risk, the state health department warns. Tribal fishing, protected by an 1855 federal treaty, continues along the river despite declining fish populations and public health warnings.

Some of these contaminants can be traced to Boeing’s plants along the river, which is why the federal government has named it as one of the major responsible parties.

Boeing’s 1950 magazine article, brought to light in the port’s lawsuit, described its efforts to curb pollution, but the company openly acknowledged that “any unrestrained liquid emptied on the Boeing premises is bound sooner or later to get into the Duwamish.”

Ken Moser, known as the Puget Soundkeeper, checks a sample for water quality violations at an unknown outflow on the Duwamish River in 1991. (Alan Berner/The Seattle Times)

Tracy Collier, a toxicologist who worked at the National Oceanic and Atmospheric Administration’s Northwest Fisheries Science Center for three decades and who read the magazine article at The Times’ request, said that it makes legitimate scientific arguments about how pollutants can be diluted and neutralized, but that it’s impossible to tell from the description alone whether Boeing successfully reduced the amount of contamination.

It’s also important to note, Collier said, that some contaminants now found in high concentrations in the river weren’t on the radar 70 years ago. Boeing is one of the parties known to have contributed PCBs, for example, according to the state Department of Ecology.

Divers from the Environmental Protection Agency collect samples from the bottom of the Duwamish River near the Marine Power & Equipment shipyard in 1985. The EPA received court permission that year to search for evidence of pollution. (Greg Gilbert/The Seattle Times)

“We didn’t know in 1950 that PCBs were going to be persistent and as toxic as they are,” Collier said. The chemical wasn’t banned by the EPA until the 1970s.

Boeing said in a statement that its article described disposal practices that were the industry standard at the time. The company added that it proactively took the steps described in the article before federal and state environmental laws took effect.

In early 2000, a survey by the EPA revealed that the river was eligible for Superfund designation, meaning it was one of the most polluted sites in the country.

The Superfund, created by Congress in 1980, was meant to address the nation’s legacy of toxic industrial waste by establishing a process to pay for cleanups. It was also known to result in costly legal battles. The port, city, county and Boeing hoped to divvy up the tab and clean the river without triggering the Superfund process.

“They were worried about the stigma it would cast on the city, and some believed that they could clean the river up faster and better without EPA dogging their efforts,” BJ Cummings, community engagement manager for University of Washington’s Superfund Research Program, wrote in her book “The River That Made Seattle,” which details the Duwamish’s history.

The Port of Seattle, Boeing, the city of Seattle and King County dredged contaminated soils in the lower Duwamish River as part of an “early action” cleanup in 2014. (Alan Berner/The Seattle Times)

But federal environmental regulators needed to sign off. They wanted an agreement that would allow them to go after polluters for damage up to three years after completion of the cleanup, just as they could under the Superfund.

Boeing would not agree. The company told a Times reporter in 2000 that it caused only a small part of the pollution and was worried that it would be stuck with a big share of the cleanup.

“We couldn’t sign the agreement without assurances that there would be an equitable outcome,” a Boeing spokesperson said at the time.

The Duwamish River landed on the national Superfund list the following year.

The rechanneled Duwamish River, seen here in 2004, became an industrial and shipping waterway and sewer in the 20th century. Today, the Lower Duwamish Superfund site stretches above and below the First Avenue South Bridge, lower right. (Tom Reese/The Seattle Times)

With EPA oversight, the three government agencies and Boeing agreed to equally front the bill for testing the river water, surveying the contamination and planning the cleanup. They planned to eventually redistribute the costs based on responsibility for pollution, a canon of Superfund law known as the “polluters pay” principle.

What happened next is hidden by an agreement signed by the parties to keep the process private.

This type of process was first created under the Superfund to make it easier for private companies to discuss business practices and liabilities frankly with the EPA. The goal was to have polluters agree among themselves on how to cover cleanup costs.

Next to the South Park Bridge, polluted soil is scooped from the Duwamish River in 2014. This dredging was a precursor to Superfund cleanup. (Alan Berner/The Seattle Times)

But in this case, the polluters in question include three local governments. Every dollar that Boeing doesn’t pay could end up the responsibility of Seattle-area taxpayers.

Even where the negotiators meet, who is in the room and what evidence is considered are secret. But court documents and interviews offer a few intriguing details about the process so far.

In 2014, the group hired John Barkett, an experienced environmental lawyer from Florida, to act as an outside allocator and deliver a report suggesting how the parties should divide the costs.

Court documents Boeing filed seeking to put the port’s lawsuit on hold describe parties exchanging historical records, responding to detailed questionnaires, providing expert reports, taking depositions and attending meetings to discuss costs.

Barkett provided his final report to the parties last year and hasn’t been involved in the process since, he told The Times and ProPublica, declining to speak in detail about the Duwamish River or the allocation. The news organizations asked the port, the city and the county for a copy of the report, but all declined, citing the nondisclosure agreement among the parties.

Both King County and the city said in separate statements that they believe the ongoing allocation process has been “thorough and fair.” Both said they plan to make their individual shares public once the process wraps up, but neither one plans to release the full report. The reason, the city wrote in an email, is that it “contains each party’s sensitive operational and financial information.”

The allocation report is nonbinding, meaning the parties can adjust or reject Barkett’s suggested breakdown of costs. Court documents show that on July 11, 2022, Boeing agreed to an undisclosed share of the cost. The Port of Seattle filed its lawsuit eight days later.

“Boeing has gleaned billions of dollars in profits over the past several decades partly through externalizing its waste disposal costs by dumping wastes into the Lower Duwamish River,” the port said in its claim.

The Duwamish River’s West and East waterways flow around Harbor Island into Elliott Bay, with Sodo in the foreground and West Seattle in the background, seen here in 2015. The Duwamish, Seattle’s only river, is a longtime source of food, tradition and culture for Indigenous people. (Bettina Hansen/The Seattle Times)

The port said it had negotiated diligently for eight years, but that the cost split on the table would force the port to “redirect taxpayers’ funds from projects and programs that benefit the public,” threatening environmental justice initiatives, “employment funds” and projects aimed at expanding public access to the river.

The port’s allegations opened old wounds for tribal leaders who have fought for decades to hold the river’s polluters accountable, said Leonard Forsman, chairman of the Suquamish Tribe, which has fishing rights on the river.

“I know that industries along the river made a lot of money at the expense of our waterway,” Forsman said.

“They were well aware of what they were doing,” Forsman said of corporate polluters, adding that Boeing and other companies “have to acknowledge that and take responsibility.”

Port officials withdrew the lawsuit in June, saying that “litigation is not the most efficient path to resolution at this time.” Any further discussions would once again take place behind closed doors.

Jamie Hearn, left, Superfund program manager at the Duwamish River Community Coalition, and Paulina López, the group’s executive director, at the Duwamish this year. “The reality is there isn’t a lot of transparency,” López said of the Superfund process. (Karen Ducey/The Seattle Times)

The Duwamish River Community Coalition, which represents the public’s interests in the cleanup, feels shut out, said Jamie Hearn, a lawyer for the coalition. “We don’t have access to a lot of information, and responsible parties are very careful to only release certain details,” Hearn said.

Still, as frustrated as Duwamish activists may be about the lack of transparency in the Superfund process, they want to avoid delaying the cleanup any further.

The community is less concerned with who pays the bill than with making sure the cleanup happens on schedule, said López, the executive director of the community coalition.

“We’ve already waited so long,” she said.

Reclamation work on a Boeing property on the Lower Duwamish River in 2014 included placing tufted hairgrass, bulrush, willows, big leaf maple and more than 170,000 native plants on 5 acres along the water’s edge. (Alan Berner/The Seattle Times)

What is known about the Duwamish cleanup publicly is that it has already cost a lot — and U.S. taxpayers have picked up a big chunk of the bill so far.

The Lower Duwamish Waterway Group, a private-public partnership between Boeing and the three government agencies, says it has already invested more than $200 million in early cleanup projects and habitat restorations along the river, targeting its most polluted parts. These actions have reduced the amount of PCBs in the river’s sediment by half, according to the group.

Boeing said in a statement that it alone invested $115 million on an early cleanup project. In 2015, the company completed a two-year cleanup that turned five acres of industrial waterfront into a wetland habitat with native plants and woody debris. The company touts on its website an award from NOAA for the project.

Boeing recovered $51 million from the federal government in 2018, through a lawsuit that said the Duwamish pollution was the result of the company’s role as a defense contractor during World War II.

Originally, the Superfund was fed by a tax on a variety of polluting industries to ensure cleanups could proceed even if polluting companies went out of business or couldn’t afford to pay.

But since that tax expired, in 1995, taxpayers of all kinds have spent billions of dollars cleaning up hazardous waste released by private companies, according to a 2017 analysis by News21, an investigative journalism project connected to Arizona State University.

The Lower Duwamish River parties are scheduled to embark on the full-scale cleanup as soon as next year.

River water spills from a bucket as a dredger lifts contaminated soil from the bottom of the Duwamish in Seattle’s South Park neighborhood in 2017. (Alan Berner/The Seattle Times)

The schedule will be complex and intricate. In-water work, which will involve dredging and barging away contaminated sediment, can only happen during a short window, typically October to February, to avoid interfering with fish migration or fishing treaties. It will likely take years to complete the cleanup.

Removal of contaminants from the river’s most polluted stretch, where Boeing Field airport is located, is supposed to come first, after a final bout of planning and contracting, according to the EPA.

But it isn’t clear how the lengthy cost negotiation will play a role in the timeline. The dozens of parties responsible for the cleanup have to agree to a payment plan and present it to the EPA for approval.

Agreeing is key to avoiding years of litigation and bickering.

The city of Seattle warned as much on its website, where it notes that cleanup parties can disagree, “but everyone knows that those who reject their assigned shares are likely to be sued by the others.”

Correction

Sept. 27, 2023: This story originally quoted a King County health warning incorrectly. The correct wording is “Fun to Catch, Toxic to Eat,” not “Fun to Fish, Toxic to Eat.”

by Todd Wallack, WBUR

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Massachusetts housing officials announced Friday that they are launching a “90-day push” to reduce the number of vacancies in state public housing by the end of the year.

The initiative comes after an investigation by WBUR and ProPublica found nearly 2,300 of 41,500 state-funded apartments were vacant at the end of July — most for months or years — despite a housing shortage so severe that Gov. Maura Healey called it a state of emergency. Massachusetts is one of only four states with state-subsidized public housing, and about 184,000 people are on a waitlist for the units. Massachusetts also has federally funded public housing, which is more common nationwide.

The state’s plan focuses on providing financial and other assistance to local housing authorities, which maintain and operate the apartments, to help fill units. The Executive Office of Housing and Livable Communities is “undertaking a new initiative to significantly reduce the number of state-aided public housing vacancies,” Fatima Razzaq, acting director of the public housing division, said in a memo. “We recognize the shared responsibility in tackling this challenge and are therefore initiating a 90-day push to assist with reoccupying units.”

Chelmsford Housing Authority Executive Director David Hedison, who has complained that state policies for managing apartments hamper local agencies, said the new initiative shows the state is now committed to reducing vacancies.

“I’m thrilled,” he said. “It appears to me now that all hands are on deck and if there’s an issue, they’re going to be highly responsive.”

Among other measures, the state will help pay employee overtime costs for localities that have high vacancy rates and are approved for budget exemptions. It will also pay for contracting with other local agencies to assist with tenant selection and preparing units for new tenants.

In particular, Razzaq wrote, the state will closely monitor local housing authorities with vacancy rates above 10%. State housing management specialists will conduct weekly check-ins and provide technical assistance.

State housing officials will also visit local agencies where units are empty for more than 60 days — the amount of time the state allows local authorities to fill a vacancy — because they need certain types of repairs. As of the end of July, WBUR and ProPublica found almost 1,800 of the vacant units, including some with at least three bedrooms, had been empty for more than 60 days. About 730 of those have not been rented in at least a year.

Because the state pays local housing authorities to take care of the units whether they’re occupied or not, the vacant apartments translate into millions of Massachusetts taxpayer dollars wasted due to delays and disorder fostered by state and local mismanagement. Reasons for the vacancies include a flawed online system that the state created for selecting potential tenants, as well as underfunding for maintenance, renovations and staff.

The housing authority in Watertown, a Boston suburb, has six maintenance workers for 589 units. Michael Lara, executive director of the agency, said he plans to request additional maintenance staff as a result of the state’s initiative. The announcement shows that the state is “treating the situation seriously and with care,” he said.

In an interview with WBUR this week, Healey said she has asked Housing Secretary Ed Augustus to take the lead in fixing the problems and noted the state will centralize the screening process for people on the waitlist.

As WBUR and ProPublica first reported, the state recently hired a marketing firm to take over a portion of the applicant screening to try to speed up the process of filling units.

“Our public housing system is absolutely crucial to helping to solve our housing crisis,” Healey said in an interview on WBUR’s Radio Boston on Wednesday.

Healey also vowed to unveil a new bond bill with additional funding for public housing, but she declined to provide details. The state has estimated there is a $3.2 billion backlog of repairs needed in public housing. Some units are in such disrepair that they have been condemned or demolished.

In 2018, the Legislature allocated $600 million over five years for capital expenditures in public housing — not enough to catch up with all needed repairs.

House Speaker Ron Mariano said that the Legislature originally ordered the state to create a central waitlist to address concerns that some local housing authorities weren’t offering units to people fairly in order of who applied. But Mariano acknowledged the new system created “some inefficiencies,” making it harder for local housing authorities to find new tenants.

He said he was glad the administration is trying to improve the system.

“That’s what we need to do,” Mariano said at a news conference earlier this week. “We need to make sure that these local authorities have the ability to get in and get the apartments livable and ready.”

Still, Mariano seemed skeptical about some of the claims that local housing authorities need more staff and funding to repair units and fill vacancies.

“I’m sure that’s true in some cases. I’m sure it’s not true in other cases,” Mariano said. “It’s like any other need in a city or town.”

The Legislature approved a 16% increase in operating funds for public housing this fiscal year, allocating $107 million in total. But that’s short of the 100% increase some advocates had lobbied for. Healey had proposed keeping the funding at the same $92 million as last year.

On Thursday, Augustus met with Hedison, the Chelmsford housing authority director, and toured an empty building there slated for renovations. Hedison said the cost has ballooned after discovering additional repairs that need to be made, something he said is indicative of aging public housing. The average age of state-funded public housing is 57 years.

Hedison said Augustus acknowledged agencies need more money for repairs and is working on a bond measure.

“I want to see what it actually means,” Hedison said. “You know, show me the money. Show me the bond bill.”

by Megan O’Matz

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

In the northwest corner of Wisconsin, the 73rd Assembly District used to be shaped like a mostly rectangular blob. Then, last year, a new map drawn by Republican lawmakers took effect, and some locals joked that it looked a lot like a Tyrannosaurus rex.

The advent of the “T. rex” precipitated dark times and perhaps extinction for local Democrats.

The new map bit off and spit out a large chunk of Douglas County, which tended to vote Democratic, and added rural swaths of Burnett County, which leans conservative.

The Redrawing of Assembly District 73 Source: Wisconsin State Legislature Legislative Technology Services Bureau (Jason Kao/ProPublica)

The Assembly seat had been held by Democrats for 50 years. But after the district lines were moved, Republican Angie Sapik, who had posted comments disparaging the Black Lives Matter movement and cheered on the Jan. 6 rioters on social media, won the seat in November 2022.

The redrawing of the 73rd District and its implications are emblematic of the extreme gerrymandering that defines Wisconsin — where maps have been drawn in irregular and disconnected shapes over the last two decades, helping Republicans seize and keep sweeping power.

That gerrymandering, which stands out even in a country where the practice is regularly employed by both major parties, fuels Wisconsin power dynamics. And that has drawn national attention because of the potential impact on abortion rights for people across the state and voting policies that could affect the outcome of the next presidential election.

The new maps have given Wisconsin Republicans the leeway to move aggressively on perceived threats to their power. The GOP-controlled Senate recently voted to fire the state’s nonpartisan elections chief, Meagan Wolfe, blaming her for pandemic-era voting rules that they claim helped Joe Biden win the state in 2020. A legal battle over Wolfe’s firing now looms.

The future of a newly elected state supreme court justice, Janet Protasiewicz, also is in doubt. Her election in April shifted the balance of the court to the left and put the Wisconsin maps in peril. Republican leaders have threatened to impeach her if she does not recuse herself from a case that seeks to invalidate the maps drawn by the GOP. They argue that she’s biased because during her campaign she told voters the maps are “rigged.”

“They are rigged, period. Coming right out and saying that. I don’t think you could sell to any reasonable person that the maps are fair,” she said at a January candidates forum.

She added: “I can't ever tell you what I’m going to do on a particular case, but I can tell you my values, and common sense tells you that it’s wrong.”

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Given the usually staid campaign statements associated with state-level judicial races, her comments stood out.

But, by any number of measurements made by dispassionate researchers, the maps have, in fact, proven to be extreme.

The Gerrymandering Project at Princeton gives the Wisconsin redistricting an F grade for partisan fairness, finding Republicans have a significant advantage, as do incumbents. “Wisconsin’s legislative maps are among the most extreme partisan ones in the country,” the project’s director, Sam Wang, said in an email to ProPublica.

Wang argues that Wisconsin’s GOP has gone further than most states and engineered “a supermajority gerrymander” in the Senate. Republicans control 22 of 33 Senate seats, giving them the two-thirds required to override a gubernatorial veto. (In the Assembly, the GOP is still two seats short of a supermajority.)

“The resulting supermajority, immune from public opinion, can engage in extreme behavior without paying a price in terms of political power,” Wang warned in a Substack article.

In the two decades before the Republicans configured the maps to their advantage, the state Senate, in particular, was more competitive, and Democrats at times controlled it.

The state’s maps changed dramatically beginning in 2011 when the GOP gained control of the Legislature and Republican Scott Walker became governor. The party redesigned the maps again in 2021, further tweaking the successful 2011 template.

“The current maps, as currently constituted, make it virtually impossible for Democrats to ever achieve majority party status in the legislature,” said Democratic strategist Joe Zepecki of Milwaukee. “Even if they win statewide by like 10 points.”

State politics is now dominated by confrontation and stalemates, with the GOP pushing its agenda and Democratic Gov. Tony Evers regularly wielding his veto power to block Republican initiatives. Unless the maps change or Republicans win the governor’s office, there seems to be no end to this dynamic.

Republicans have argued that it is their right, politically, as the victorious party to craft the maps, and so far the maps have survived legal challenges.

“Our maps were adopted by the Wisconsin Supreme Court because they were legal,” Assembly Speaker Robin Vos said in a statement to ProPublica.

He added: “Republican legislative candidates do well in elections because we have good candidates who listen to their constituencies and earn the votes of Republicans and independents alike.”

Asked at a 2021 Senate hearing whether partisan advantage was the intent of the maps, Vos said: “There is no constitutional prohibition on that criteria, so yes, was partisanship considered as a consideration in the map? Yes, there were certain times that partisanship was.”

Basic goals set by state and federal law govern the drawing of districts. Among them: District lines should be contiguous and compact with equal numbers of people. The boundaries should not, where possible, split counties or municipalities.

But 55 of the 99 districts in the Assembly and 21 of the 33 in the Senate contain “disconnected pieces of territory,” according to the most recent complaint filed with the state Supreme Court by 19 Wisconsin voters. The suit argues that this should not be allowed, even when towns annex noncontiguous areas, creating islands or enclaves in districts.

“Despite the fact that our Assembly and Senate are meant to be the most direct representatives of the people, the gerrymandered maps have divided our communities, preventing fair representation,” said Dan Lenz, staff counsel for Law Forward, which brought the maps suit, in a statement to ProPublica. “This has eroded confidence in our electoral systems, suppressed competitive elections, skewed policy outcomes, and undermined democratic representation."

The Impeachment Question

Protasiewicz’s election came after a hard-fought campaign, with both parties pouring in millions of dollars. Protasiewicz promised to recuse herself from any case brought by the Democratic state party, but not from all cases that might benefit Democrats.

Her victory meant conservatives lost control of the state’s highest court. It gave liberals hope that GOP initiatives, including some dating back to the Walker administration, could be reconsidered.

The court may be called upon to review key voting rules heading into the 2024 presidential election and to decide whether Wolfe keeps her role as administrator of the state elections commission. Also likely to come before the court is whether an 1849 abortion ban, reimposed by the overturning of Roe v. Wade, will stand. This week, after a favorable lower court ruling, Planned Parenthood resumed providing abortion services in the state.

Meanwhile, the possibility of the court striking down the maps, potentially loosening the Republicans’ grip on the legislature, sent the GOP looking for alternate ways to hold on to power.

Republican Sen. Dan Knodl first floated the idea in March of impeaching Protasiewicz — before she had even won.

Months later, after Protasiewicz was sworn in Aug. 1, Vos warned that she risked impeachment if she did not step away from the maps case.

Impeaching a justice who won by more than 200,000 votes, with over 1 million total cast for her, struck many as wildly inappropriate and undemocratic.

The reaction from some Wisconsinites was intense, with Democrats leading the outcry. “To threaten the ability of a duly elected justice who was overwhelmingly elected, functioning in her role, is nothing short of a denial of democracy,” said former U.S. Sen. Russ Feingold, a Democrat from the Madison area who now leads the American Constitution Society, a legal advocacy group.

The state Democratic Party mobilized, launching a $4 million campaign to challenge the prospect of impeachment.

In the face of the backlash, Vos appeared to shift course, briefly. He proposed, in a Sept. 12 press conference, that Wisconsin adopt a system to configure maps based on an “Iowa model,” in which an advisory committee would help the state Legislative Reference Bureau, a nonpartisan government agency, set the boundaries, subject to legislative approval. Without public hearing or Democratic input, the GOP put forth a bill, which passed the Assembly last week, with only one Democrat in favor.

Evers opposed the plan, saying: “A Legislature that has now repeatedly demonstrated that they will not uphold basic tenets of our democracy — and will bully, threaten, or fire on a whim anyone who happens to disagree with them — cannot be trusted to appoint or oversee someone charged with drawing fair maps.”

Vos has made it clear that he is not abandoning impeachment. He announced last week he had assembled a panel of former justices to advise him on criteria for removing Protasiewicz.

Two Protasiewicz voters filed an emergency petition with the Supreme Court last week asking the court to issue an injunction prohibiting the Assembly from impeaching Protasiewicz, or any other justice, without grounds. Protasiewicz recused herself. She told ProPublica she did not wish to comment for this story.

Wisconsin’s constitution allows for impeachment “for corrupt conduct in office, or for crimes and misdemeanors.” Protasiewicz has not been charged with any crime.

If the Assembly impeaches, it would then fall to the Senate to hold a trial and convict, forcing her from office.

If there is a vacancy on the court on or before Dec. 1, Evers would then choose a replacement to serve until the next election in April 2024, coinciding with the GOP primary for president. Evers likely would appoint another liberal-leaning judge.

But there is another scenario posited by political observers. The Senate could simply not take up a vote, leaving Protasiewicz impeached and in limbo. Under the state constitution, she’d be sidelined, unable to carry out her duties until acquitted.

That would leave the court with a 3-3 ideological divide, though conservative Justice Brian Hagedorn at times sides with the liberals.

Timing matters: Under state law, if Protasiewicz is removed or resigns after Dec. 1, Evers could appoint a replacement who would serve until 2031.

The only thing certain about the situation, it seems, is that those state statutes are being studied closely and that compromise on issues such as the district maps, abortion and voting are off the table.

Onions, Memes and Freedom

The dinosaur-shaped 73rd Assembly District was one of three in northwest Wisconsin that the Republicans flipped last year.

Besides Sapik, voters chose Republicans for the neighboring 74th Assembly District and the horseshoe-shaped Senate District 25. In each case, the Democratic incumbents bowed out.

Democrat Janet Bewley, a former state senator who declined to run again in 2022, watched the GOP mapmaking in that corner of the state up close. She said the changes led to small incremental gains for Republicans in various corners of the new maps — a couple dozen votes here and a couple dozen there. But they added up to defeat.

“They went down to the town level, to see how the towns voted,” she said, making it harder for Democrats.

Sapik, who makes a living shipping onions, had never run for public office before. She loved the new maps.

“I’ve said it before, but we really are in the Dinosaur District! I love the way the lines changed and I welcome everyone new into District 73!” Sapik wrote in a Facebook post during her campaign. “Burnett and Washburn counties, you are going to help turn this District red for the first time!”

In a podcast during her primary race in August 2022, Sapik said she decided to run because she opposed business shutdowns during the pandemic and mask mandates.

About the time she submitted her nomination papers, she said, she was interviewed by the state director of Americans for Prosperity, a political nonprofit established by right-wing billionaires Charles and David Koch. Sapik won the group’s endorsement, and it spent about $40,000 advocating for her election, according to FollowTheMoney.org, a nonpartisan initiative that tracks special interest money in politics.

“I’m on that Freedom Train. I want less. I want less laws. And that was the number one reason that AFP likes me so much,” she said on the podcast.

She has vowed to be “a strong, positive voice for my community,” a diverse district that includes farmers, longtime manufacturers and shipbuilders, union members, and outdoors enthusiasts who prize strong environmental protections for Lake Superior. And she has promised to vote against “infringements against personal freedoms,” to promote tourism, and “bring back true American values.”

Sapik declined to speak with ProPublica for this story. In an emailed response to written questions, she sent a so-called “distracted boyfriend” meme and included a label claiming a ProPublica reporter was “writing lies about Wisconsin Republicans.”

The questions included requests for explanations of what’s behind some of her online comments.

Last summer, for instance, Sapik posted a video on Facebook for a campaign fundraising golf event that said: “Let’s get rid of Democracy; everyone in favor raise your hand!”

It elicited confusion among some followers.

“It’s a joke,” Sapik responded at the time.