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Archive for the ‘Courts’ Category

A Baton Rouge district court judge has struck down the so-called Edmonson Amendment, declaring the special retirement benefits enhancement amendment for State Police Superintendent Mike Edmonson and one other state trooper unconstitutional.

Meanwhile, LouisianaVoice has learned that a state police commander passed out a controversial “Hurt Feelings Report” to state troopers several months ago. https://www.google.com/search?q=hurt+feelings+report&hl=en&biw=1280&bih=585&tbm=isch&tbo=u&source=univ&sa=X&ei=ydYYVJ_gGYSuogSpwoK4Aw&sqi=2&ved=0CB0QsAQ

(For an example of “Hurt Feelings Report” forms, click on any image, then move cursor to right and then click on “View Image.”)

Edmonson may now wish to fill out one of those reports.

Judge Janice Clark of 19th Judicial District Court issued the ruling Tuesday morning in a special hearing, bringing to an official end the question of legality and propriety of Amendment 2 of Senate Bill 294, passed on the last day of the recent legislative session.

The ruling leaves egg on the collective faces of Edmonson, his Chief of Staff Charles Dupuy, who conceived of the underhanded (as in sneaky) legislation; State Sen. Neil Riser (R-Columbia), who slipped the last minute amendment past his unsuspecting colleagues in the Senate and House; Gov. Bobby Jindal’s executive counsel Thomas Enright Jr., who supposedly read and blessed the bill, and Jindal, who signed it as Act 859.

The effect of the bill, which was introduced by State Sen. Jean-Paul Morrell (D-New Orleans) as a bill to address disciplinary action to be taken in cases where law enforcement officers are under investigation, was to bump Edmonson’s annual retirement up by $55,000, from its current level of $79,000 to his current salary of $134,000.

Edmonson had entered into the Deferred Retirement Option Plan (DROP) several years ago at his captain’s pay grade in exchange for more take home pay at the time he signed onto DROP. Because of that decision, which is irrevocable, Edmonson was set to receive 100 percent of his captain’s salary after 30 years of service.

Riser’s amendment would have allowed Edmonson to retire instead at 100 percent of his current salary. The bill also benefitted Master Trooper Louis Boquet of Houma even though he was oblivious to events taking place in Baton Rouge.

LouisianaVoice was the first to report the real impact of SB 294 after a sharp-eyed staff member in the Division of Administration (DOA) tipped us off.

Edmonson at first defended the bill on a Baton Rouge radio talk show, saying he was entitled to the increase. He said then that at age 50 he was “forced” to sign up for DROP. That was not accurate; state employees at the time were required to decide whether or not to participate in DROP, but no one was forced into the program.

Continuing the pattern of misrepresentations, Riser said he had no knowledge of who inserted the amendment into the bill during a conference committee meeting. He later acknowledged it was he who made the insertion. Riser was one of three senators and three House members who were on the conference committee.

Jindal, of course, remained strangely quiet about the entire mess, emerging from Iowa or New Hampshire or the Fox News studios only long enough to say that the legislature should correct the matter when it convenes next spring. After making that brief policy statement, he immediately returned to his presidential campaign.

Meanwhile, retired state troopers as well as other retired state employees who had opted into DROP and later received promotions and accompanying pay raises only to have their retirements frozen at the level they were being paid at the time of their entering DROP, went on a rampage with several retired troopers offering to file suit if the State Police Retirement System (LSPRS) Board did not.

At a special meeting of the LSPRS Board earlier this month, it was learned that Dupuy had initiated contact with the board’s actuary several weeks before the session ended to discuss the amendment which he obviously intended to have inserted into the bill in the closing hours of the session. That pretty much shot down any deniability on Riser’s part. And Riser would certainly never have made such an attempt without Jindal’s blessings.

The board, meanwhile, was advised by an attorney with experience in pension plans that it had no standing as a board to file such a suit but board member and State Treasurer John Kennedy immediately announced his intentions to do so as a private citizen.

Meanwhile, State Sen. Dan Claitor (R-Baton Rouge) saw a way to give his campaign for 6th District congressman to succeed U.S. Rep. Bill Cassidy a boost and quickly filed his own suit.

It was Claitor’s suit on which the hearing on a motion for declaratory judgment served as the basis for Judge Clark’s ruling on Tuesday.

Neither Edmonson nor Boquet nor the LSPRS Board opposed the motion.

Following the hearing, Kennedy said the bill was unconstitutional on both the state and federal levels—on several different legal points. “Not only was it unconstitutional,” he said, “it was wrong.” https://www.dropbox.com/sh/erw91d3j3ivkis9/AABhtU96O_u88tVSYLfIQqPra?dl=0#lh:null-IMG_8155.MOV

“This law was patently unconstitutional,” Kennedy said. “Now it’s null and void. This is a win for retirees as well as taxpayers across Louisiana.”

In a statement released after the ruling, Kennedy said one of his objections was that the law would have drawn the enhanced benefits from an experience account that funds cost-of-living increases for retired state troopers and their families.

He testified in the hearing that Louisiana’s four retirement systems already have an unfunded accrued liability (UAL—the gap between the systems’ assets and liabilities) of $19 billion, the sixth worst UAL in the nation.

“This is not about personalities,” he said. “This was about fairness. Regardless of whether you’re a prince or a pauper, you should not receive special treatment.”

The “Hurt Feelings Report” forms, intended to intimidate or demean harassment victims or others who feel they have been slighted or who feel they have been made victims of racial, sexual, or other forms of discrimination, are parodies that attack otherwise genuine concerns of bullying in the workplace.

The commander who passed the forms out to his troopers obviously thought it was a hilarious joke and a great way to deal with potential complaints but officials in Buffalo, Wyoming didn’t think they were so funny.

A 13-year veteran Buffalo High School football coach who passed out the “survey” to his players was forced to resign after his actions became public. The survey listed several options as reasons for hurt feelings, including “I am a queer,” “I am a little bitch,” and “I have woman like hormones.” It asked for the identity of the “little sissy filing report” and for his “girly-man signature,” plus the “real-man signature” of the person accused of causing hurt feelings.

Coach Pat Lynch, as is always the case when those in positions of authority are caught doing something incredibly stupid, offered a letter of resignation in which he said, “I would like to apologize for my lack of judgment and the poor choice….” (You know the words to this worn out song by now. We’ve heard them from politicians like David Vitter, athletes like Ray Rice, even ministers like Jimmy Swaggart.)

So now we have a state police commander who has attempted by distribution of this document to ridicule—in advance—anyone under his command who feels he or she has been the victim of discrimination or harassment and to discourage them from filing formal complaints.

There appears to be no level of stupidity to which some people will not stoop.

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Board of Elementary and Secondary Education (BESE) member Walter Lee has been indicted by a state grand jury and the FBI is investigating State Rep. Joe Harrison (R-Gray)—both for double billing for travel.

Investigators may want to take a look at the expense records of State Rep. and Shreveport mayoral candidate Patrick Williams (D-Shreveport).

Lee’s indictment by a DeSoto Parish grand jury accuses him of the felony theft of $3,968 in fuel expenses and $1,578 in lodging in meals charged to both BESE and to the DeSoto Parish School Board at a time when Lee was simultaneously serving as DeSoto School Superintendent and as a member of BESE.

A state audit used as the basis of Lee’s indictment said he collected travel expenses from BESE for attending state board meetings even though he used a parish school system credit card to pay for those expenses and failed to reimburse the school system after receiving payment from BESE.

DeSoto District Attorney Richard Johnson, Jr. said Lee also terminated a lease early on a vehicle which cost the school system around $10,000 and then got a substantial discount on the purchase of another vehicle shortly thereafter.

Williams’ expense reimbursements, however, more closely resemble those of his colleague in the House.

Harrison has been ordered by federal investigators to produce travel expense records after the New Orleans Times-Picayune revealed in a lengthy investigative series that Harrison was reimbursed more than $50,000 by the House for travel in his district from 2010 to 2013—travel that he had also charged to his campaign.

House reimbursement records and campaign expense records reveal that in 2012 alone, Williams systematically doubled his campaign and the House for more than $4,000 for expenses that included postage, subscriptions to the Shreveport Times, travel to and from Baton Rouge, hotel accommodations in Washington, D.C., airport parking, cab fare, and air travel.

LouisianaVoice was alerted to Williams’ expense payments by former Shreveport attorney Michael Wainwright who now lives in North Carolina.

Wainwright said Williams accepts campaign contributions which then pays “thousands of dollars” in travel and other expenses. “Rep. Williams then bills the taxpayer for those same expenses (and) then keeps the reimbursement checks. He has converted the money to his personal use.”

Wainwright said the practice “is conduct which seems to fall squarely within the definition of theft,” which he said is defined under Louisiana Criminal Law as “the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representation.”

He provided us with a detailed itemization which we verified through our own check of Williams’ campaign expense report and House reimbursement records.

The following list includes the month of the House expense report, the amount and purpose. In the case of each expense item listed, Williams also billed his campaign:

  • January: $113.73—Purchase Power Postage;
  • February: $52.88—Shreveport Times Subscription;
  • April: $85.51—Pitney Bowes Postage;
  • May: $53.95—Shreveport Times Subscription;
  • May: $107.99—Pitney Bowes Postage;
  • June: $65.68—Pitney Bowes Postage;
  • August: $17.98—Shreveport Times Subscription;
  • October: $37.04—Shreveport Times Subscription;
  • October: $85.48—Pitney Bowes Postage;
  • November: $17.98- Shreveport Times Subscription;
  • December: $17.98—Shreveport Times Subscription;
  • November 5: $70.00—Fuel & Travel to Baton Rouge;
  • November 29: $50.32—Fuel & Travel to Baton Rouge;
  • December 4-8: $40.00—Shreveport Airport Parking;
  • December 4-7: $838.16—Hilton Hotel, Washington, D.C. (Campaign billed for entire $912.71 amount);
  • December 4-8: $169.94—Washington Travel Expense (Note: Rep. Williams was paid $745.00 in per diem expenses by the State of Louisiana while attending a NCSL conference in Washington, DC Williams also charged his campaign account $169.94 for the following per diem expenses related to this trip: Delta Airlines Travel baggage ($25), Supreme Airport Shuttle ($13), Hilton Hotel ($103), Meals ($28.44);
  • February 1: $158.00—Holiday Inn, Lafayette;
  • March 12-16: $197.00—In Session Fuel & Mileage (This amount was billed to his campaign while the House paid $291.38);
  • March 17-20: $327.04—In Session Fuel & Mileage (billed to campaign; House paid $582.75);
  • March 31-April 13: $373.09—In Session Fuel & Mileage (billed to campaign; House paid $582.75);
  • April 14-27: $335.00—In Session Fuel & Mileage (billed to campaign; House paid $582.75);
  • April 28-May 11: $257.00—In Session Fuel & Mileage (billed to campaign; House paid $582.75);
  • May 12-25: $262.12—In Session Fuel & Mileage (billed to campaign; House paid $582.75)
  • May 26-June 4: $146.00—In Session Fuel & Mileage (billed to campaign; House paid $582.75);

This is the same Rep. Patrick Williams who in 2011 authored House Bill 277 which would have required the posting of the Ten Commandments in the State Capitol. There’s no word as to whether his bill proposed deleting the Eighth Commandment.

 

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“Despite the special counsel’s recommendation, I would strongly urge that as chairman, you ask the board to authorize the system attorneys to file the necessary documents to obtain a final declaratory judgment on this amendment. That judgment will provide the necessary finality to this matter.”

—State Police Superintendent Mike Edmonson, in a letter to Frank Besson, chairman of the Louisiana State Police Retirement System Board.

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State Police Superintendent Mike Edmonson did a sudden about-face, the Louisiana State Police Retirement System (LSPRS) Board was unanimous in its decision to allow board member and State Treasurer John Kennedy sue the board, and before the board could adjourn, State Sen. and 6th District Congressional candidate Dan Claitor filed his own lawsuit but Kennedy said he would go forward with his litigation anyway.

Just another day in the soap opera we know as Louisiana state government.

And it could only happen in Louisiana.

The LSPRS Board was meeting to wrestle with the problem of Act 859 which started out as Senate Bill 294 by State Sen. Jean-Paul Morrell (D-New Orleans), a bill ostensibly dealing with police officer disciplinary matters but which morphed into what retired state trooper Robert Landry described as an “underhanded, unethical, unconstitutional” amendment giving Edmonson an extra $55,000 per year in retirement income.

Special legal counsel Robert Klausner, a renowned pension system authority from Florida, advised the board that it had no legal standing to file suit in an attempt to have the new law declared unconstitutional but added almost parenthetically that any citizen of Louisiana could file suit.

“Could I file?” Kennedy asked. “I’m a taxpayer.”

Klausner said that Kennedy could indeed initiate litigation and if the board failed to defend it, legal expenses would be minimal and the matter could be settled once and for all as opposed to waiting to see if the legislature would repeal the act next year and if Gov. Bobby Jindal would sign such a bill.

While the board was tossing the issue back and forth and speculating whether or not Attorney General Buddy Caldwell would take it upon himself to defend such a suit should the board refuse to, Claitor left the meeting and apparently called his attorney to instruct him to file suit on behalf of Claitor.

Earlier, Claitor had spoken to the board, saying that passage of the Edmonson Amendment was not open or transparent. “It was an unconstitutional act because it was not published in advance, and was not germane to retirement issue. “I would ask that you exercise your fiduciary duty,” he said. Apologizing for having voted for the amendment because he was told that conference committee had addressed his earlier concerns about police disciplinary matters, he said, “I’m sorry to ask you to clean up this mess.”

The “mess” occurred when State Sen. Neil Riser, a member of the conference committee composed of three members each from the House and Senate, inserted the crucial language that gave Edmonson his financial windfall.

Basically, the amendment allowed Edmonson to revoke his decision years ago to enter into the state’s Deferred Retirement Option Plan (DROP) which froze his retirement at 100 percent of his captain’s salary of $79,000. The revocation would have allowed him to instead retire at 100 percent of his $134,000 colonel’s salary.

LSPRS actuary Charles Hall told the board that the upfront cost of fully funding the benefits at their present, or discounted, value would be a $359,000 investment to cover the increased benefits for Edmonson and a Houma trooper who also happened to qualify under language of the amendment. That amount is $59,000 more than the original $300,000 estimated cost provided three days after the amendment’s passage. Kennedy pointed out that the actual cost would be in excess of a million dollars and he asked Hall to provide him with a computation of those figures.

Hall said he received a request to “call a trooper to discuss a bill” on the Friday before the Monday, June 2 adjournment of the legislature.

He said it became clear in his conversation with the state trooper that “they wanted to introduce an amendment to enhance (Edmonson’s) benefits.”

After a few routine questions, Kennedy asked Hall if he knew the name of the trooper whom he was asked to call and to whom he subsequently talked.

“Charles Dupuy,” Hall answered.

Dupuy is Edmonson’s Chief of Staff who has benefitted from a 52 percent increase, from $80,500 to $122,200, since Edmonson’s appointment as State Police Superintendent by Gov. Bobby Jindal in January of 2008. Dupuy’s wife, Kelly Dupuy, also has received increases in salary, from $65,000 to $80,600.

It was the first time that anyone has officially identified Dupuy as the source of the Edmonson Amendment.

Dupuy, a member of the LSPRS Board, was not in attendance at Thursday’s board meeting.

Riser, who first denied any involvement with introducing the amendment during the conference committee meeting in June but later admitted his complicity but said he did not realize it would benefit only two people.

Hall, however, in speaking to the board on Thursday cast doubt on that part of Riser’s story as well when he said it was believed that the amendment would affect only one person—Edmonson.

“This act has hurt the reputation of the state,” Kennedy said. “Someone pushed hard for this law. If I sue and the attorney general decides to defend it, I will begin taking depositions. I will send out subpoenas and we will find out who was behind this.”

Kennedy said he would foot the cost of the litigation which he said would be minimal provided the attorney general does not opt to defend the law.

The board, which had been seen as heavily stacked with Edmonson and Jindal loyalists, had been expected to display reluctance to go against the two. Instead, board members were unanimous in authorizing Kennedy to proceed with personal litigation in his “individual capacity.”

But even as Kennedy was making his offer, Claitor was already setting in motion his own litigation which he obviously had instructed Baton Rouge attorney Jack Whitehead to prepare and to stand by to file with the 19th JDC clerk’s office.

In fact, Whitehead even prepared a press release to accompany Claitor’s lawsuit, making it obvious that Claitor had planned the move well in advance of the board meeting.

Claitor, in his petition, asked the court to find Act 859 unconstitutional on four grounds:

  • Act 859 failed to meet the “one object” requirement of the Louisiana State Constitution;
  • The act did not meet the germaneness requirement of the state constitution;
  • No public notice was provided as required by the constitution for retirement-related legislation and the bill itself never indicated proper notice was given, also in violation of the constitution;
  • The source of funding for the increased benefit is the LSPRS “Employment Experience Account,” which is reserved as the source of future cost of living benefits and payments toward the system’s unfunded accrued liability.

To read the full text of Claitor’s litigation, click here: Press Release Letter & Petition

Baton Rouge Judge Janice Clark issued a temporary restraining order until she can hold a hearing on Sept. 16. To read her order, click here: CLAITOR VS LSP

The real kicker came when a two-page letter from Edmonson to the board was read. In that letter, Edmonson said he fully supports assertions “from legislators and others that the bill should be repealed.”

Then, addressing board Chairman Frank Besson, Edmonson said, “Despite the special counsel’s (Klausner) recommendation, I would strongly urge that as chairman, you ask the board to authorize the system attorneys to file the necessary documents to obtain a final declaratory judgment on this amendment. That judgment will provide the necessary finality to this matter.”

That represents a complete 180 from Edmonson’s earlier admission that a “staffer” had originally approached him about the prospects of the amendment’s benefitting him and his instructions to proceed.

It was a move of necessity brought on by a groundswell of sentiment against the amendment by retired state troopers which forced Edmonson to have a change of heart in an effort to save face and to avoid further embarrassment to his boss, Gov. Jindal. Because make no mistake, he wanted that money and Dupuy, no matter what anyone says to the contrary, did not take this upon himself as a solo act. It’s pretty obvious that Dupuy initiated the amendment at the direction of his boss who in turn had the blessings from the Fourth Floor and Riser was simply the instrument by which the amendment was inserted. That makes Jindal, Riser, Edmonson and Dupuy all complicit in a devious little scheme to reward Edmonson at the expense of every other state employee, including state troopers and retirees across the board.

That’s the way this governor and his band of sycophants work.

To read Edmonson’s letter, click here: EDMONSON LETTER

Kennedy, when told after the meeting adjourned of Claitor’s lawsuit, said, “That’s great. I’m glad. But I’m still moving forward with my own lawsuit. This is a bad law and it must be addressed.”

 

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Editor’s note: The following is a guest column by a Baton Rouge attorney who represents plaintiffs in civil litigation and who chooses to use the nom de plume of Edward Livingston, considered one of the fathers of Louisiana law. 

By Edward Livingston

The Louisiana Association of Business and Industry (LABI) has issued a “fact sheet” about “Louisiana’s Judicial Climate.” http://labi.org/assets/media/documents/JudicialClimateFactSheet_Reduced.pdf

It should not surprise you that big business, and particularly the oil and gas industry, are as much in denial about changes in Louisiana’s judicial climate as they are about changes in the earth’s climate.

The juridical, or artificial, “persons” http://www.legis.state.la.us/lss/lss.asp?doc=109467 who constitute Corporate America hate, hate, hate the civil justice system. When you compare the three branches of government, it’s easy to see why. Through lobbying, donations and favors, they easily influence the legislative branch. As an example, note that after the worst oil spill in history, which caused billions of dollars in personal, economic, and environmental damages, the oil and gas industry was able to derail congressional proposals to raise the meager $75 million damage cap under the Oil Pollution Act. They have similar influence on the executive branch through regulatory capture. Look no further than the Federal Communications Commission, purportedly established to protect consumers, but even under a Democratic president, it is run by a former (and likely future) telecom lobbyist. Is it any wonder that the FCC is working to do away with net neutrality? And of course, our own commissioner of insurance spends our money to run ads and buy billboards accusing us all of committing insurance fraud.

But the judiciary is another kettle of fish. The civil justice system is the one area where common, everyday natural persons have a chance to stand almost as equals to corporate behemoths. Because procedural rules are designed to ensure a fair trial, because ethical rules prevent ex parte lobbying of judges, and because corporate litigants do not know the identity of nor can they attempt to influence individual jurors, it is much more difficult for them to create the lopsided playing field that they are used to in their other dealings with government entities.

This horror at the notion of being subjected to actual justice gave rise to the so-called “tort reform” industry. This industry does two things: It attempts to convince the public, and lawmakers, that the judicial system is inherently unfair, and it tries to sell the notion that the civil justice system is somehow bad for the economy. These attempts, in turn, serve two goals: They seek to poison the minds of potential jurors by creating a bias in favor of defendants in civil cases, and, more importantly, they want to change the substantive rules of law and procedure to decrease corporate liability for wrongdoing.

Tort reformers’ arguments are rife with references to “frivolous lawsuits,” but that’s just a smokescreen. They know that frivolous lawsuits are both vanishingly rare (what in the world is the incentive for a contingent fee lawyer to spend her own money pursuing a lawsuit she probably can’t win?) and rapidly dismissed, usually with sanctions http://www.legis.state.la.us/lss/lss.asp?doc=112283 for the lawyer who filed them. What they’re really concerned about are the lawsuits that have merit, because those are the ones that cost them serious money to repair the damage they’ve done. Whether it’s a person rendered quadriplegic in crash with an 18-wheeler being driven by a drunken driver or a worker burned beyond recognition in an industrial explosion, those are the kinds of cases that the purported “reformers” are really trying to limit.

With that background in mind, let’s turn to LABI’s description of our judicial climate. Its fact sheet focuses on three issues that it contends are harming Louisiana. First, LABI is concerned about legacy lawsuits, that is, lawsuits brought by landowners against oil and gas producers for damage to their land caused by the oil and gas production. They are worried that these lawsuits hurt the oil and gas industry, and by extension the economy, by discouraging production companies from drilling in the state, or by discouraging them from entering the state in the first place. Second, LABI is also worried about the lawsuit brought against ninety-seven oil and gas producers by the Southeast Louisiana Flood Protection Authority-East. Again, the concern seems to be that the oil and gas industry, and thus the state’s economy, will be harmed by the mere attempt to hold these companies liable for their alleged wrongdoing. Finally, LABI is appalled that defendants cannot request jury trials unless there is more than $50,000 at issue in the case. This deprivation of access to jury trials, due to a threshold that is much greater than that in other states, is said to lead to excessive litigation. The implication is that the judges who try these small cases are giving claimants too much money.

LABI’s fact sheet is full of footnotes and citations, but that should be taken with a grain of salt. While it cites a number of public bodies for raw numbers on suit filings, trials, judges and the like, the raw meat on the effects of these numbers comes almost exclusively from professional tort reform institutions. The primary, if not exclusive, purpose of these organizations – groups like the American Tort Reform Association, American Tort Reform Federation, the U.S. Chamber of Commerce, its Institute for Legal Reform, and Louisiana Lawsuit Abuse Watch – is to complain that the civil justice system hurts the economy and is unfair to corporate defendants. It would be shocking if their work product didn’t support those positions. But if you believe them, I’m sure BP would like to share with you their studies showing how inconsequential the Deepwater Horizon disaster was.

If you’ve made it this far, it probably won’t surprise you to find that LABI’s three big concerns are each, to use a technical legal term, baloney. Let’s start with legacy litigation. In these cases, landowners complain that their oil company lessees acted unreasonably and damaged their land. The underlying problem here – the fact that oil companies have polluted a lot of land in Louisiana – is hardly new (the Louisiana Supreme Court held oil companies liable for land damage as early as 1907), and it resulted from two things: weak rules, and even weaker enforcement of those rules. There’s a marvelous timeline of oil company documents dating back to the 1930s showing that the oil companies knew very well that they were breaking the law and could someday be held accountable for it. http://jonesswanson.com/slfpaecase/timeline/

But the Department of Natural Resources did not promulgate strong rules, and they didn’t even enforce the weak rules they had. The difference? Courts are now actually enforcing both the leases and the regulations, requiring the land to be cleaned up, and that’s costing oil companies a lot of money. Some oil companies are getting popped with huge damage awards to clean up the tremendous messes they made. If you’re a really big landowner in these cases (like former governor Mike Foster), you’ve got some leverage, and the producers will settle with you. If you’re a little guy, not so much.

According to the oil and gas industry, these cases are a huge problem, hampering new oil and gas exploration and putting the state’s economy at risk. Their proposed solution to the problem won’t surprise you – they’ve gone to the legislature and sought repeatedly, and successfully, to take the decision-making on cleanups out of the courts and put it back in the hands of their old pal, the Department of Natural Resources. The legislature has gone along with this, especially this last session when the big landowners (whose cases have already been settled) gave their go-ahead on it.

So, to put it in context, the oil and gas companies are basically like the college kids who trash your rental house during the semester, and then whine when you keep their deposit and otherwise seek to hold them accountable for the damage they’ve done. The difference is the legislature actually listens to these deadbeats.

Perhaps the final irony on legacy cases involves Don Briggs, the head of the Louisiana Oil and Gas Association (LOGA), a big-time tort reformer who for years has been telling anyone who would listen that legacy litigation was killing the oil and gas industry. That was working great for him until he actually filed a lawsuit, and he got put under oath, subject to the penalties for perjury. At that point, as one news outlet put it, “Briggs was forced to admit that he knows of no oil companies that have left or will be leaving Louisiana because of its legal climate. He also has no proof companies even consider the legal climate and was unable to cite any data to back up his long-held claims.” http://www.acadianabusiness.com/business-news-sp-416426703/oil-a-gas/16586-read-briggs-depo-here

If you’re curious about what a tort reform advocate has to say about the legal climate when they’re placed under an oath to tell the truth, you can read his entire deposition here. http://www.theind.com/extras/Official-Transcript-Briggs-Depo.pdf

LOGA’s lawsuit brings us to LABI’s second worry – the SLFPA-E suit. Sometimes, those rowdy college kids didn’t just trash the place; sometimes, on the coast, they destroyed it altogether.   LOGA filed that suit to have the levee board suit declared illegal – LOGA lost. The same operative facts apply, and this suit was opposed by largely the same cast of characters, with the notable addition of Governor Bobby Jindal and his former head of the Coastal Protection and Restoration Authority (and now congressional candidate) Garret Graves. They both leapt to the defense of the poor, beleaguered oil industry against the terrible, greedy levee board that was trying to find some way to raise funds for a $50 billion dollar coastal restoration plan. Unfortunately, Graves has a problematic penchant for telling the truth. First, he admitted that the lawsuit isn’t frivolous at all, but that it has merit, stating, “I will be the first to admit there’s liability there.” [http://www.cleanwaterlandcoast.com/james-gill-graves-shows-lawsuit-needed-2/] Then he pulled the whole “reform” fig leaf off the operation, predicting, “I don’t see any scenario where this levee district doesn’t get gutted – or, say, ‘reformed’ – in the next legislative session.”   http://thelensnola.org/2013/08/22/levee-district-jindal-administration-remain-at-odds-over-lawsuit-a-week-after-hints-of-reconciliation/

Despite all this, the legislature did everything it could do to reform gut the levee board lawsuit; we’ll see if it was successful in giving away the state’s chance to recover billions of dollars to pay for coastal restoration.

Finally, there is that horrible $50,000 jury trial threshold. A little background, and some inside baseball: As many know, Louisiana private law is based on Roman, or civil, law, as received through France and Spain. Unlike the English common law that prevails in the other forty-nine states, Louisiana has no tradition of civil juries. As a result, Louisiana is the only state without a constitutional right to a civil jury trial; Louisiana’s constitution is the only one that requires appellate courts to review both legal and factual findings (like amounts of damages) of trial courts in civil cases; and in Louisiana the litigants, rather than the state or local governments, have to front the money to pay for a civil jury trial.

Over the years, particularly since the adoption of the Code of Civil Procedure in 1960, civil jury trials became more common. Then, in the late 80s and early 90s, a certain insurance company decided that “good hands” required it to refuse to settle any small auto cases, no matter the facts, and to force claimants with such small cases into trial by jury. This had several effects: It made those small cases less economical to litigate, since they were more expensive, and, more importantly, it clogged the courts’ trial calendars with cases, because every case had to set for jury trial. After several years of this foolishness, the district court judges convinced the legislature that jury trials should be limited to relatively large cases; the $50,000 figure that was chosen was the threshold for federal diversity jurisdiction at the time. For truly big (and even not-so-big) cases, everyone still has a statutory right to a jury trial.

So why is this a concern for LABI? Because they don’t like the availability of relatively inexpensive and rapid dispute resolution. It drastically decreases the leverage of insurers, who want to force claimants into accepting lowball settlements. More importantly, by clearing the trial court dockets of small cases, it allows truly large and significant cases to get to trial much sooner, reducing the leverage of defendants in those cases by reducing the systemic delay in resolution of the cases.

How do we know that these are LABI’s concerns, rather than a reverence for the sanctity of the right to a jury trial? Easy. They have never proposed to change the state constitution to provide for a constitutional right to civil jury trials or to prohibit appellate review of facts. If those things were done by the legislature, those rights could be used to overturn things like damage caps, which are nothing more than pre-litigation (and usually pre-accident) findings of fact by the legislature. If they really believed that jury trials were a sacrosanct method of finding facts in a civil trial, they’d be talking about those issues.

So, what is the true judicial climate in Louisiana? Well, if you’re an injured person, a landowner, or a taxpayer, for the last forty years, it’s been changing for the worse. Examples:

 

I could go on; these are just the “greatest hits” of Louisiana tort reform. Every year, tort reformers try, usually with at least some success, to chip away at the rights of citizens and governmental entities to seek redress for corporate wrongdoing. For instance, this year, since the attorney general recovered several hundred million dollars for the Medicaid program from pharmaceutical companies, Big Pharma convinced the legislature to take away his power to hire outside lawyers without the legislature’s approval. http://www.legis.la.gov/legis/ViewDocument.aspx?d=915585&n=HB799%20Act%20796

If the legislator’s will bow to Big Pharma’s will on this, what are the odds they’ll let the attorney general ever hire outside lawyers? And every year, proposals to restore some of the historic rights of Louisiana citizens fall on deaf ears at the capitol.

Louisiana is a conservative state. Its conservative voters elect fairly conservative judges, and they make up fairly conservative juries. If one of those judges or juries should run amuck, there are multi-parish appellate courts, and a state-wide supreme court, acting as backstops for Corporate America.

But that’s never enough. Corporate America still wants to take away your rights. Ironically, these corporations are the true socialists. The only thing they want privatized is profit. They want the costs and risks of production to be borne by society at large: their victims and, ultimately, the taxpayers.

 

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The seventh floor of the Bienville Building on North 4th Street in Baton Rouge became a beehive of activity recently when employees of a temporary personnel service moved in to begin shredding “tons of documents,” according to an employee of the Louisiana Department of Health and Hospitals (DHH).

DHH is headquartered in the Bienville Building and the source told LouisianaVoice that the shredding, undertaken “under the guise of being efficient and cleaning,” involves documents that date back as far as the 1980s.

“The significance of this is that this is occurring in the midst of a lawsuit (that) DHH is filing against Molina in relation to activities that go back to the ‘80s,” the employee said. “Everyone is questioning the timing. Westaff temporary people have been in the copy room of the seventh floor for approximately two weeks now, all day, every day, shredding documents.”

https://www.westaff.com/westaff/main.cfm?nlvl1=1

The employee said so many documents were being shredded “that the floor is full of dust and employees have been ordered to clean on designated cleaning days” and that locked garbage cans filled with shredded documents “are being hauled from the building daily.”

LouisianaVoice submitted an inquiry to DHH that requested an explanation “in light of the current litigation involving DHH, Molina and CNSI”—two companies the agency contracted with to process Medicaid claims.

CNSI (Client Network Services, Inc.), which replaced Molina as the contractor for those services in 2011, had its $200 million contract cancelled by the Jindal administration after allegations of contact between then-DHH Secretary Bruce Greenstein and CNSI, his former employer, during the contract selection process. Investigations by the Louisiana Attorney General’s and the U.S. Attorney’s offices ensued but little has been heard since those investigations were initiated. Meanwhile, CNSI filed suit against the state in Baton Rouge state district court in May of 2013, alleging “bad faith breach of contract.” http://theadvocate.com/home/5906243-125/cnsi-files-lawsuit-against-state

Molina, meanwhile, was reinstated as the contractor to process the state’s Medicaid reimbursements but last month the state filed suit against Molina Healthcare and its subsidiary Molina Information Systems, alleging that the state paid Molina “grossly excessive amounts” for prescription drugs for more than two decades because the firm engaged in negligent and deceptive practices in processing Medicaid reimbursements for prescription drugs.

Prescription drugs account for about 17 percent of the state’s annual Medicaid budget, the lawsuit says.

The state’s lawsuit says that Molina has processed the state’s Medicaid pharmacy reimbursement claims for the past 30 years but from 1989 to 2012, Molina neglected to adhere to the state formula for payments and thereby committed fraud and negligence, violated the state’s consumer protection and Medical Assistance Programs Integrity laws. http://theadvocate.com/news/business/9579038-123/la-sues-medicaid-drug-payment

Olivia Watkins, director of communications for DHH, told LouisianaVoice by email on Wednesday that the Division of Administration maintains a contract with Westaff for temporary workers which can be used by different state departments. “DHH requested temporary workers through the existing contract to assist with various projects, including shredding,” she said.

A search of LaTrac, the state’s online directory of state contracts, failed to find either Westaff or Molina listed as contractors among either its active or expired contracts.

“With regard to the shredding,” Watkins said, “those documents that were shredded were old cost reports, statements and facility documents that were outside of their document retention period (anywhere from 5-10 years). The files being shredded were in no way related to the department’s previous contract with CNSI.”

Watkins, while denying any connection to the CNSI contract, failed to mention whether or not the shredded documents involved Molina’s contract or the state’s litigation against the company even though the LouisianaVoice inquiry specifically mentioned both companies.

In June of 2002, the nation’s largest accounting firm, Arthur Andersen, was found guilty of unlawfully destroying documents relating to the firm’s work for its biggest client, the failed energy giant, Enron.

And while that conviction was eventually overturned, the damage from its actions doomed the company and it ultimately shut its doors for good.

In the weeks leading up to the Enron collapse, Andersen’s Houston practice director Michael Odom presented a videotaped talk—that was played many times for Andersen employees—on the delicate subject of file destruction.

In that video, Odom said that under Andersen’s document retention policy, everything that was not an essential part of the audit file—drafts, notes, emails and internal memos—should be destroyed immediately. But, he added, once a lawsuit was filed, nothing could be destroyed. Anything could be lawfully destroyed, he advised Andersen employees, up to the point when legal proceedings were filed (emphasis ours). http://www.mybestdocs.com/hurley-c-rk-des-law-0309.htm

“If it’s destroyed in the course of the normal policy and litigation is filed the next day, that’s great,” he said, “because we’ve followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.”

In a matter of days, Andersen’s Houston office began working overtime shredding documents, according to authors Bethany McLean and Peter Elkin in their book The Smartest Guys in the Room (The Amazing Rise and Scandalous Fall of Enron).

Perhaps the DHH shredding had nothing to do with the CNSI contract with DHH or with the litigation filed by CNSI over cancellation of its contract.

And it may be that the shredding was in no way connected to the Molina contract, even though Watkins failed to address that specific question by LouisianaVoice.

It could well be, as Watkins said, the document destruction was purely a matter of routine housekeeping.

But the timing of the shredding flurry, coming as it did only days following the July 10 filing of DHH’s lawsuit against Molina, and DHH’s murky and adversarial relationship with the two claims processing contractors do raise certain questions.

And Watkins’ assertion that the shredded records consisted of “old cost reports, statements and facility documents,” the dates of which fall within the time frame of the allegations against Molina, would seem to make those questions take on even greater relevance.

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State Treasurer John Kennedy told fellow members of the State Police Retirement System (LSPRS) Wednesday that he wants answers to a laundry list of questions pertaining to legislative passage of an amendment to an otherwise minor senate bill that increased State Police Commander Mike Edmonson’s retirement benefits by $30,000 per year.

http://www.auctioneer-la.org/Kennedy_LSP.htm

In asking for a thorough investigation of the amendment that was slipped on Senate Bill 294 on the final day of the legislative session, Kennedy said his main concern was with New York bond rating agencies, though he also questioned the fairness of the amendment’s applying only to Edmonson and one other Master Trooper from Houma.

“I was in New York when this story first broke (LouisianaVoice ran the first story about the amendment last Friday) and we had discussions about the $19 billion unfunded accrued liability (UAL) of the state’s four retirement systems,” he said. “These rating agencies read our newspapers and our blogs and they know more about Louisiana than we do.”

As State Treasurer, Kennedy sits on some 30 different state boards, including the State Police Retirement System Board but he said his interest in attending Wednesday’s meeting was in protecting the state’s bond rating. “If our rating goes down, our interest rates go up,” he said. “I spent 12 or 13 hours with them and they are worried about our Medicaid situation, our use of non-recurring revenue and our retirement systems’ UAL.”

Another state official, an attorney, told LouisianaVoice that he had another constitutional violation to add to C.B. Forgotston’s list of five constitutional violations of the amendment: “The amendment impedes an existing contract,” he said. Col. Edmonson entered into a binding contract when he entered DROP and that is irrevocable. We have had a constant parade of state employees who wanted out of DROP and every single one has been denied.”

Kennedy said there are two sides to every story. “I’d like to talk to Charles Hall (of Hall Actuaries, which did a study for the legislature earlier this year). I’d like Sen. Jean-Paul Morrell (D-New Orleans) who authored the original bill to come speak to us.”

Kennedy said the two men benefitting from the amendment also have a right to address the board. “They have every right to due process,” he said.

Other answers he said he would like include:

  • How many people are impacted by this amendment?
  • Who are they? (The identities of the beneficiaries of the amendment);
  • Who sponsored the amendment in committee? (so they might come before the board and explain their motives);
  • What is the total cost of the amendment? (so he can report back to the rating agencies);
  • What are the remedies, litigation or legislative relief, allege the bill is illegal or simply refuse to comply?
  • What are the legalities of the bill? (Can an amendment be done dealing with retirement issues that is supposed to be advertised?);
  • Has special treatment been given?

“Years ago, we had anywhere from 10 to 15 bills introduced each year to give special treatment to one, two or three individuals without appropriating any money,” he said. It was wrong then and it’s wrong now.

“Gov. (Mike) Foster finally said ‘Enough, we will do this no more.’ And now here we are again. The rating agencies are appalled at that.”

Kennedy, in a private interview after the meeting, said he was concerned with everyone being treated equally. “I don’t believe in special treatment for those who have the political power or (who) know the right people. I think it’s stupid economically and it is what has contributed to the UAL. This amendment has implications far beyond the two men affected. I want to see how much it would cost to give everyone the same treatment.

“We have the sixth worst-funded retirement systems in America and the rating agencies have told us over the past two years to get our business straight or they will downgrade us. If that happens, we’ll be paying higher interest on our bonded indebtedness.”

Kennedy saved his harshest criticism for the legislature when he said, “Someone didn’t read this bill or they’re not being candid. They should be doing these amendments in a more transparent way. These last minute amendments are done and no one know what they’re adding and suddenly, it’s an up or down vote.

Kennedy asked LSPRS Executive Director Irwin Felps, Jr. if the board could meet before the next scheduled meeting on the third Wednesday of September. “It’s important that we address this issue,” he said.

“There’s no excuse for this. This amendment didn’t just fall from heaven. Somebody has a lot of explaining to do and if I find preferential treatment, I will vote to rescind the amendment.”

Kennedy’s claim of a lack of transparency and the sudden “up or down vote” was illustrated when Rep. Jeff Arnold (D-New Orleans) explained the amendment on the floor of the House during the final hectic hours when lawmakers were hurrying to wrap up business:

“The new language to the bill applies to those paying more into the system since 2009 for benefits they cannot use,” he said. “It makes people whole but does not give them a larger benefit.”

Don’t believe us? Watch and listen for yourself as Arnold explains the new legislation in all of 15 seconds.

Then you can decide for yourself if the amendment’s sponsors were being completely up front with their colleagues—and with Louisiana taxpayers.

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