By Robert Burns (Special to LouisianaVoice)
On Monday, November 5, 2012, the Louisiana Auctioneer Licensing Board (LALB) conducted a meeting at which two members, Vice President James Sims and Greg Bordelon, engaged in racist roll call responses. Because the meeting was quietly moved up by nearly three weeks, neither I nor Rev. Freddie Lee Phillips, Louisiana’s only African American auctioneer in its history, were aware of it and thus didn’t attend (our only absence in seven years).
Upon learning of the meeting, I made a public records request for an audio recording of it. My request was ignored for almost a month, so I threatened litigation. Reluctantly, the LALB provided the recording. Phillips, who thought I was joking about the racist responses, was justifiably outraged when he heard the tape. He wanted the Jindal Administration to hear the recording, so I supplied it to them. Meanwhile, an Advocate reporter, Ted Griggs, took an interest in the matter, and published this article on December 22, 2012. Jindal called upon the inspector general (IG) to “investigate” the matter. That “investigation” concluded with the release of this this report on February 20, 2013 in which the behavior is excused as mere “diabetes and dentures” flaring up for Sims and Bordelon merely “mocking Sims as a North Louisiana redneck.” Griggs published a follow-up story on the IG’s report soon after its release.
I was intrigued by the recording’s revelation of LALB members, especially Vice Chairman James Sims, lambasting Jindal over his freezing their per diem payments. Despite Jindal’s signing this Executive Order effective August 5, 2012, LALB members defied the order and accepted payments for the September 2012 meeting. I raised this issue privately with LALB Attorney Larry S. Bankston via email, and he responded with an email assuring me I could address my concerns at the next meeting (January 8, 2013). Meanwhile, Phillips wanted to address the roll call responses as part of the approval of the November 5, 2012 minutes. Phillips wanted verbatim roll call responses entered into the record of those minutes.
When January 8, 2013 rolled around, Bankston was emphatic that neither Phillips nor I would be permitted to speak on our respective issues as evidenced in this video.
Louisiana Revised Statute 42:14(D) mandates an opportunity for public comment on any meeting agenda item for which a vote is taken. Since the minutes of the prior meeting requires a vote for adoption, as does approval of financials (within which the illegal per diem payments constituted a line item), Phillips and I filed this open meetings law violation lawsuit pro se on March 6, 2013. In an effort to maximize his billings to his LALB client, Bankston filed back-to-back Dilatory Exception motions (a fruitless legal technique to drag out a case’s duration). The first motion, for which oral arguments were heard on July 22, 2013, resulted in Judge Hernandez granting a 30-day period to amend the lawsuit to more succinctly state a cause of action. The second motion, for which oral arguments were heard on February 3, 2014, was denied, thus forcing Bankston to file an answer to the suit over a year after it had been filed. Because the case was a clear violation of the law, Phillips and I filed a Motion for Summary Judgment on May 12, 2014. Oral arguments on our motion were heard by Hernandez on August 4, 2014. We argued that the case was a violation of the open meetings laws and we were therefore entitled to $100 each from the board members for denying us the right to speak on items clearly on the agenda. In a motion for summary judgment, one side (us in this instance) argues that no issues of material fact exist which can permit the case to continue to trial; therefore, judgment should be granted to the moving party as a matter of law. Upon the conclusion of oral arguments on August 4, 2014, Judge Hernandez took the matter under advisement, saying, “It will all boil down to whether the court finds there is a matter of material fact to permit the case to continue.”
Bankston filed his own Motion for Summary Judgment for the LALB for which oral arguments were set for September 15, 2014. Meanwhile, in a continued effort to maximize his legal billings, Bankston took depositions for both Phillips and myself. For Phillips, Bankston argued he suffered “no harm” from not being able to address the roll call response, to which Phillips told Hernandez, “I was unable to defend my culture, my heritage, or to confront the two board members directly on their actions.”
Bankston also argued that, because per diem payments were not a line-item on the agenda, the LALB violated nothing in terms of denying me the opportunity to speak. Never mind that per diem payments were a line item on the financials and that those very financials containing the illegal payments were being approved at that January 8, 2013 meeting. Never mind that Bankston had provided me with an email on December 23, 2012 which said that I would be permitted to address my concerns. If one isn’t permitted to discuss such an integral component of the financial statements being approved, what can the public state regarding the financials at the meeting? Bankston also posed the argument that, because I had informed Jindal’s office that the LALB was defying his executive order and Jindal’s office had demanded that the board members refund the per diem overpayments as a result, my goal had been accomplished notwithstanding the fact I was not permitted to discuss the matter at a public meeting.
Judge Hernandez again took the matter under advisement. When no ruling was issued prior to the November 4, 2014 election, I told Phillips, who resides in Hernandez’s district, that was a very bad sign. I said if Hernandez were to issue a ruling against us before the election, the contents of his ruling may cause Phillips to implore his congregation, relatives, and friends to vote for Hernandez’s opposition. Because of that, Hernandez was delaying making his ruling until after the election. If so, he was smart because he barely survived a strong challenge by Democrat Collette Greggs (53-47).
Judge Hernandez issued his ruling granting Bankston’s Motion for Summary Judgment more than 60 days after the election. In doing so, Hernandez went from openly questioning if any issue of material fact existed on Aug. 4, 2014, to permitting defendants to continue toward a trial, in effect saying plaintiffs had no basis for proceeding with trial!
Hernandez said in his ruling, “The agenda did not include the subject of per diem payments,” and he therefore ruled that the board would be required to add the line item of per diem payments to the agenda to permit discussion! So, using Hernandez’s “logic,” a board guilty of making illegal payments must vote to add a line item entailing the illegal payments in order for the public to address them! Don’t hold your breath waiting for that to occur. Hernandez’s ruling not only makes a mockery of LA R. S. 42:14(D), but his ruling makes the court culpable in attempts to keep illegal payments by board members. Moreover, the court is made to appear even more culpable than those seeking to keep the illegal payments. His ruling sends a horrible message to members of the public seeking to hold public bodies accountable.
Hernandez went on to say that, even if a violation of the open meetings law transpired on January 8, 2013, it was remedied at the March LALB meeting. The fact that a judge has to say, “even if a violation occurred,” is a point-blank statement that an issue of material fact exists in the case and therefore he was bound by law to deny Bankston’s motion and permit the matter to continue to trial.
We wanted to appeal Hernandez’s ruling as it’s doubtful any three-judge panel of the First Circuit would have upheld his ruling. State agencies, with infinite resources of taxpayer dollars, routinely appeal rulings knowing they stand no chance of being overturned. LouisianaVoice readers may recall an article on the CNSI trial in which Judge Kelley told the state’s attorneys “there is nothing to appeal because this matter is that clear,” regarding Bruce Greenstein having waived attorney-client privilege. Nevertheless, at a cost approximating $30,000, the state appealed Kelley’s ruling, only for it to be upheld.
My attorney informed me it would cost about $9,000 to appeal Hernandez’s ruling and even if we prevailed, there was no way to recover that $9,000. Hence, we had little choice but to walk away. That’s why Judge Caldwell’s “split the baby” ruling in the Tom Aswell’s public records request lawsuit last week felt like such a victory from my vantage point. A judge finally provided some relief to the “small guy.”