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Archive for the ‘Judges’ Category

To fully understand the lengths to which those in the upper echelons of the Jindal administration will go to punish those—especially subordinates—who dare to cross them, you need look no further than the case the Louisiana State Police hierarchy attempted to build against one of its own.

On Feb. 6, 2010, senior trooper Chris Anderson, assisted by 11-year veteran state trooper Jason LaMarca and two other troopers, Patrick Dunn, and Tim Mannino, stopped a flatbed 18-wheeler on I-12 in Tangipahoa Parish being driven by Alejandro Soliz.

LaMarca, with Anderson’s mobile video recorder (MVR) activated and recording every word and move, patted down Soliz. Finding no weapons on the driver, LaMarca then conducted a search of the truck cab and discovered “several kilos of cocaine,” according to court records.

LaMarca pulled his taser from its holster and he and Dunn approached Soliz, ordering him to get down, according to court records and testimony provided by the State Police Commission. After Soliz, who spoke English, refused to comply with several commands of “Get down,” LaMarca attempted unsuccessfully to re-holster his taser as he continued to approach Soliz.

Transferring the taser to his right hand, he cupped his left hand behind Soliz’s head and pulled him to the ground, according to testimony by LaMarca and the other three troopers, testimony supported by the video recording.

No one was injured, no shots were fired, and there were no complaints, then or later, by Soliz of excessive force.

U.S. District Judge Eldon Fallon, however, reviewed the video and thought he saw LaMarca strike Soliz in the back of the head “with what appears to be a flashlight or similar item.” Judge Fallon added that the recording showed “three other troopers laughing at this act.”

State Police Superintendent Mike Edmonson (aka “Precious”), upon receiving a letter from the judge, immediately ordered an investigation into the incident—as he should have.

But what occurred next went beyond the pale of disciplinary action by Edmonson and his actions have been attributed by those familiar with the case to an act of retaliation for an earlier confrontation between LaMarca and Edmonson’s Chief of Staff, Lt. Col. Charles Dupuy.

Edmonson notified LaMarca on Nov. 18 that he was “suspended for 12 hours without pay and allowances” as a result of his actions. The cause of his suspension was based, Edmonson said, on the following violations of Louisiana State Police Policy and Procedure:

  • The use of force policy;
  • The use of force reporting policy;
  • Conduct unbecoming an officer.

LaMarca, who had a spotless record in his 11 years, promptly filed an appeal with the State Police Commission, primarily to expunge the suspension from his record. The commission heard testimony from all four officers and reviewed the video recording of the arrest and put down of Soliz before issuing its ruling on Aug. 1, 2011.

In its ruling exonerating LaMarca, the commission noted:

  • Appellant (LaMarca) had nothing in the hand he used to “put the driver on the ground.” Likewise, we do not perceive appellant’s actions, in doing so, to be the use of excessive force. While the driver had been cooperative until the drugs were found, he became uncooperative thereafter and refused numerous orders to get on the ground.
  • While the maneuver used by appellant to take the driver to the ground may not be the one “taught” at the academy, it was effective and did not appear to be the use of “excessive” force.
  • We likewise do not perceive the other troopers to be “laughing” at appellant’s action.
  • As we do not find that appellant violated the “use of force” policy order, he likewise did not violate the “use of force reporting.”

That normally would have ended the matter. No weapons were used, no one was injured, no one complained of excessive force, and the commission found no violations by LaMarca.

But remember, LaMarca had earlier committed that unpardonable sin of arguing vehemently with Dupuy, Edmonson’s second in command.

And though Dupuy’s name never surfaces in the initial disciplinary action, the commission hearing and its subsequent decision, or court records, Edmonson was dutifully carrying the water for him and he made sure the issue was far from dead as he displayed unprecedented zeal in his attempt to punish LaMarca on behalf of his chief of staff.

Determined to exact revenge for LaMarca’s impudence, Edmonson took the matter up the line to the First Circuit Court of Appeal.

That’s right, he appealed the decision of the state commission charged with the responsibility of promoting effective personnel management practices for the Office of State Police and to protect the fundamental rights of the troopers under Edmonson’s command.

Much like the courtroom experiences of his boss Gov. Bobby Jindal, Edmonson went down in flames. At least the administration is consistent in that respect.

The First Circuit’s ruling of May 2, 2012:

  • On review of the video and testimonial evidence concerning the surrounding circumstances at the scene of the rest, we find no error in the commission’s finding that the force and manner used by trooper LaMarca to secure the suspect and “affect the arrest” was not more than was reasonably necessary under the circumstances and hence did not violate procedure.
  • On review, we find the verbiage used by the commission in concluding that the force used by LaMarca was not “excessive,” was simply synonymous with the commission’s ultimate finding that there was no violation of the “use of force” procedure order, i.e., that the use of force by trooper LaMarca was reasonably necessary under the circumstances.
  • We find the decision of the commission thoroughly and sufficiently reviewed the evidence and testimony produced at the hearing and addressed the procedure order violations lodged against trooper LaMarca in the suspension letter issued by Col. Edmonson.
  • After thorough review of the testimonial and video evidence herein…we find the decision of the commission is supported by substantial evidence.

http://statecasefiles.justia.com/documents/louisiana/first-circuit-court-of-appeal/2011ca1667-4.pdf?ts=1387486081

Well, that certainly laid the matter to rest, right?

No, not if you’ve had a confrontation with Dupuy.

Edmonson promptly applied for writs (appealed) to the Louisiana Supreme Court.

And what became of that?

The State Supreme Court simply declined to even consider the matter.

Now it’s over.

Until, that is, it’s determined by Edmonson or Dupuy that LaMarca makes another misstep.

But with the publication of this post and the decisions of the State Police Commission and the First Circuit Court of Appeal now on the record, any similar attempts in the future would come dangerously close to harassment.

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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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Apparently lost in all the jibber jabber about Vance in his pants McAllister and the mouth-to-mouth resuscitation he and aide Melissa Anne Hixon Peacock recently administered to each other is why on earth Monroe’s Christian Life Church pastor Danny Chance inserted himself into this steamy little affair—without, we might add, having been invited to the party.

Chance, in case you’ve been on vacation in the Ukraine, took it upon himself to reveal to the world (at least that part of the world that really gives a hoot in hell) that it was McAllister’s Monroe District Office manager Leah Gordon who leaked the video of McAllister and Peacock engaged in lascivious lip locking.

Chance apparently violated a ministerial duty of confidentiality when he shared with us a purported statement by Gordon that she was taking the video to State Sen. Mike Walsworth (R-West Monroe) and Jonathan Johnson, former aide to retired Congressman Rodney Alexander and who worked in the campaign of McAllister’s opponent, State Sen. Neil Riser. Both men, by the way, have denied any involvement in receiving or circulating the video.

“I just feel like there is a conspiracy to bring Vance down and destroy him,” the good reverend said. “For someone on his staff to do that is wrong.”

And speaking of wrong, how about a minister violating an apparent confidence by going public with something like a confession, as it were, that an individual (Gordon) planned to forward the video to political operatives? Is that not equally egregious?

Someone recently, perhaps only half joking, suggested that Heath Peacock, erstwhile best friend of Congressman Vance McAllister and husband of McAllister’s paramour/legislative aide, might want to consider running against his former friend this fall for the Fifth District congressional seat.

That would be fun to watch, but we don’t feel it goes quite far enough. We have an idea to extend it to its logical conclusion.

How about if McAllister resigns his congressional seat (there is already pressure from that moral standard bearer, the Republican Party, that he do so), thus opening the door for Peacock’s congressional candidacy? McAllister, naturally would then run for governor next year against…..David Vitter.

Now that would be a match made in hell and could conceivably even launch a new reality show: Duck Dynasty Dilemma.

There would be no debates between the candidates, of course: only the congenial sharing of notes and frat boy exchanges of stories of romantic conquests.

To keep viewers’ interest alive during lulls in the dialogue, lieutenant governor candidate Sen. Elbert Guillory (R/D/R-Opelousas) could promote three-round chicken boxing matches. That would allow bookies to handicap both the governor’s race and sporting events simultaneously.

But the scenario gets better—or worse, depending upon your tastes—and considerably more muddled. To keep up, you may need a pen and paper and perhaps even an abacus and a few highlighters for purposes of color coding. A chart of some type might also help.

Obviously we couldn’t allow Heath Peacock to waltz into Congress unopposed as representative of the good people of Louisiana’s 5th District. He must earn his stripes. For that reason, we have tapped the Hon. Chet Traylor of Monroe as his most worthy opponent.

Remember Chet Traylor?

Way back in 1996, Trayor, then living in Winnsboro, defeated incumbent Ruston’s Joe Bleich to win a 10-year term on the Louisiana Supreme Court. While serving on the state’s high court, he would have occasion in 2000 to write the majority opinion upholding the constitutionality Louisiana’s anti-sodomy laws, thus validating a morals code for everyone to follow.

Traylor, following a divorce from his first wife, married Peggy Marie McDowell Ellington, who was previously married to Noble Ellington, II, of Winnsboro, then a state representative but since retired and subsequently appointed as second in command of the State Insurance Department at a six-figure salary.

The Ellingtons had two sons, Noble Ellington, III, and Ryan Ellington, both of Winnsboro.

The senior Ellington has been quoted as saying that Traylor was “significantly involved” in his divorce.

We may never know the details of the history between Traylor and Peggy Ellington because not long after her marriage to Traylor, she died.

Soon after her death, Traylor, the good Methodist that he is, began yet another relationship—this one with Denise Lively, estranged wife of his stepson, Ryan Ellington.

Now that’s a family man to the core.

And bringing this entire saga full-circle, we have Traylor receiving less than 10 percent of the votes in his 2010 U.S. Senate election campaign against….David Vitter.

All of which goes to prove two points:

  • Politics, especially in Louisiana, does make for strange bedfellows, and
  • If you followed all this, you have far too much time on your hands.

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It’s small wonder that Gov. Bobby Jindal wanted to get out of town quickly—he departed the state for an extended trip to Asia to recruit business and industry investment in Louisiana—given the flak he is receiving from the legislature and radio talk show hosts over his hiring of a consulting firm at a cost of $4.2 million to somehow magically find $500 million in state government savings. http://theadvocate.com/csp/mediapool/sites/dt.common.streams.StreamServer.cls?STREAMOID=sZuDzNJoJK2fudmeRm9FJpM5tm0Zxrvol3sywaAHBAlauzovnqN0Cbyo1UqyDJ6gE0$uXvBjavsllACLNr6VhLEUIm2tympBeeq1Fwi7sIigrCfKm_F3DhYfWov3omce$8CAqP1xDAFoSAgEcS6kSQ–&CONTENTTYPE=application/pdf&CONTENTDISPOSITION=Alvarez%20Marsal%20Government%20Savings%20Contract.pdfhttp://theadvocate.com/news/8045923-123/vitter-super-pac-raises-15

And that contract doesn’t even take into account Pre-Jindal recommendations by the firm that may ultimately end up costing taxpayers $1.5 billion which, of course, would more than offset any $500 million savings it might conjure up that the Legislative Fiscal Officer, the State Treasurer, the administration, the legislature and the Legislative Auditor have been unable to do, largely because of a time honored political tradition affectionately known as turf protection.

One might even ask, for example, why representatives of the consulting firm, Alvarez & Marsal, who somewhat smugly call themselves “efficiency engineers,” were wasting their time Friday at the gutted Office of Risk Management. Isn’t there already a promise of $20 million in savings on the table as a result of Jindal’s privatization of that agency four years ago? For just that one small agency, that’s 4 percent of the entire $500 million in savings Jindal is seeking through the $4 million contract. (The elusive $500 million savings, for the real political junkies, represents only 2 percent of the state budget.)

The Baton Rouge Advocate also got in on the act on Saturday with Michelle Millhollon’s excellent story that  noted that the actual contract contains no mention of a $500 million savings. http://theadvocate.com/home/8131113-125/vaunted-savings-not-included-in

That revelation which is certain to further antagonize legislators, including Senate President John Alario (R-Westwego) whom Jindal will now probably try to teague for his criticism of the governor’s penchant for secrecy.

Hey guys, your contract is only for four months, so why waste your time in an agency that supposedly is on the cusp of a $20 million savings? That ain’t very efficient, if you ask us.

Legislators immediately voiced their displeasure at the contract. “There’s a lot of people who don’t like it,” said Rep. John Schroder (R-Covington), a one-time staunch Jindal ally.

Rep. Tim Burns (R-Mandeville), chairman of the House Governmental Affairs Committee (if he hasn’t been teagued by now), said when the dust settles any cost cutting will ultimately be the responsibility of state officials. “Even the best PowerPoint presentation isn’t going to cut government,” he said. “The trick is to make the political choices.”

The contract raises immediate questions how Jindal, now entering his seventh year in office, could justify the move in light of his many boasts of efficiencies his administration has supposedly initiated.

Ruth Johnson, who is overseeing the contract for the Division of Administration, defended the deal with the simplistic and less than satisfactory logic that “Sometimes you have to spend money to save money.”

And while Jindal has indicated he wants a final set of recommendations in April, the contract runs through 2016, meaning the final cost could far exceed the $4.2 million Alvarez & Marsal is scheduled to receive for its review.

Jim Engster, host of a talk show on public radio in Baton Rouge, on Friday predicted during an interview with State Treasurer John Kennedy that Alvarez & Marsal’s final report will most likely bear an uncanny resemblance to the 400-plus-page interim report of Dec. 18, 2009, by the infamous Commission on Streamlining Government.

The hearings by that commission, you may remember, gave birth to the term teaguing, a favorite tactic employed by the Jindal administration when a state employee or legislator refuses to toe the line. A state employee named Melody Teague testified before that commission and was summarily fired the following day. Six months later her husband, Tommy Teague, was fired as head of the Office of Group Benefits when he was slow in getting on board the Jindal Privatization Express. Mrs. Teague appealed and was reinstated but her husband took employment elsewhere in a less volatile environment.

The Alvarez & and Marsal representatives have pleaded ignorant to questions of whether their report will draw heavily from the four-year-old commission report and even professed to not know of its existence.

A curious denial indeed, given that Johnson was also the ramrod over the streamlining commission during Jindal’s second year in office. Does she not share this information with the firm or was all that commission work for naught? Or part of Jindal’s infamous deliberative process? Curious also in that Alvarez & Marsal is specifically cited—by name—no fewer than six times in the report’s first 51 pages, each of which is in the context of privatizing the state’s charity hospital system. The report quoted the firm as recommending that:

  • “The governor and the legislature authorize and direct the LSU Health System to adopt the recommendations of Alvarez and Marsal for the operation of the interim Charity Hospital in New Orleans. The governor and legislature direct every other charity hospital in Louisiana to contract for a similar financial and operational assessment with a third party private sector consulting firm, such as but not necessarily Alvarez and Marsal, that specializes and has a proven track record in turnaround management, corporate restructuring and performance improvement for institutions and their stakeholders.”

That’s right. That is where the seed was apparently first planted for the planned privatization of the LSU Hospital system, even to the point of directing the LSU Board of Stuporvisors to vote to allow a Shreveport foundation run by one of the LSU stuporvisors to take over the LSU Medical Center in Shreveport and E.A. Conway Medical Center in Monroe. Alvarez & Kelly performed that bit of work under a $1.7 million contract that ran for nine months in 2009, from Jan. 5 to Sept. 30 (almost $200,000 per month).

Alvarez & Marsal also received a $250,000, contract of a much shorter duration (10 days) from Jindal on April 9, 2013, to develop Jindal’s proposal to eliminate the state income taxes in favor of other tax increases. That quickie, ill-conceived plan was dead on arrival during the legislative session and Jindal quickly punted before a single legislative vote could be taken

But Alvarez & Marsal’s cozy if disastrous relationship with state government goes back further than Jindal, even. http://www.alvarezandmarsal.com/case-study-new-orleans-public-schools It’s a relationship that could become one of the most costly in state history—unless of course, the state chooses to ignore a court judgment in the same manner as it has ignored a $100 million-plus award (now in the neighborhood of a quarter-billion dollars—with judicial interest) stemming from a 1983 class-action flood case in Tangipahoa Parish.

In fact, the state probably has no choice but to ignore the judgment as an alternative to bankrupting the state but that does little to remove the stigma attached to a horrendous decision to accept the recommendation of Alvarez and Marsal which subsequently was rewarded with a $29.1 million three-year state contract from April 4, 2006 to April 3, 2009 to “develop and implement a comprehensive and coordinated disaster recovery plan in the wake of Hurricane Katrina.”

In December of 2005, the Orleans Parish School Board adopted Resolution 59-05 on the advice of the crack consulting firm that Jindal somehow thinks is going to be the state’s financial salvation.

That resolution, passed in the aftermath of disastrous Hurricane Katrina was specifically cited in the ruling earlier this week by the 4th Circuit Court of Appeal that upheld a lower court decision the school board was wrong to fire 7,500 teachers, effective Jan. 31, 2006. The wording contained in the ruling said:

  • “In December 2005, the OPSB passed Resolution No. 59-05 upon the advice and recommendation of its state-selected and controlled financial consultants, the New York-based firm of Alvarez & Marsal. The Resolution called for the termination of all New Orleans Public School employees placed on unpaid “Disaster Leave” after Hurricane Katrina, to take effect on January 31, 2006.1 On the day that the mass terminations were scheduled to take place, Plaintiffs amended their petition to seek a temporary restraining order preventing the OPSB from terminating all of its estimated 7,500 current employees at the close of business on that day. The trial court granted the TRO and this Court and the Louisiana Supreme Court denied writs on the issue. The TRO was later converted into a preliminary injunction that restrained, enjoined and prohibited the OPSB, et al, from “terminating the employment of Plaintiffs and other New Orleans Public School employees until they are afforded the due process safeguards provided in the Orleans Parish School Board’s Reduction in Force Policy 4118.4.” Nevertheless, Plaintiffs and thousands of other employees were terminated on March 24, 2006, after form letters were mailed to the last known address of all employees of record as of August 29, 2005.”

The appellate court upheld the award of more than $1 million to seven lead plaintiffs in the case of Oliver v. Orleans Parish School Board but adjusted the lower court’s damage award, ordering the school board and the Louisiana Department of Education to pay two years of back pay and benefits and an additional year of back pay and benefits to teachers who meet certain unspecified requirements.

Immediately following Katrina, state-appointed Alvarez and Marsal set up a call center to collect post-Katrina addresses for a majority of staff members in time for the anticipated layoffs. But when the state began the hiring process for schools that had been taken over, the terminated employees were never called, prompting plaintiff attorneys to charge that the entire procedure was intentional and part of the state’s plan to take over the Orleans Parish school system.

Plaintiffs said that then-State Superintendent of Education Cecil Picard chose Alvarez & Marsal to prevail upon the school board to replace acting parish Superintendent Ora Watson with an Alvarez & Marsal consultant.

So, Watson was replaced, 7,500 teachers were fired, and the teachers sued and won, leaving the Orleans School Board and the state liable for a billion-five and the firm that started it all is hired by Jindal to find savings of an unspecified amount. What could possibly go wrong?

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“My service as vice chair of the Labor & Industrial Relations Committee in no manner alters my duties or the constraints placed upon me under the Code of Governmental Ethics.”

—State Rep. Chris Broadwater (R-Hammond), in an email letter to LouisianaVoice last year. Broadwater, former Director of the Louisiana Office of Workers Compensation (OWC), took a job in 2010 with a company that was awarded a $4.2 million contract by OWC only weeks before his resignation.

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The vice chairman of the House Labor and Industrial Relations Committee who once oversaw the Louisiana Workforce Commission’s (LWC) Office of Workers Compensation (OWC) went to work for a consulting firm within weeks of his office’s awarding a $4.2 million contract to the firm, LouisianaVoice has learned.

State Rep. Chris Broadwater (R-Hammond) served as OWC director and concurrently as interim executive council for the executive director of the LWC, previously known as the Department of Labor.

He announced his resignation as OWC Director in an email to a number of recipients on Oct. 28, 2010, with his resignation to become effective on Nov. 12, 2010.

A $4.28 million contract with SAS Institute to deploy a contractor-hosted fraud detection software platform was approved on Oct. 7, just three weeks before his resignation. The contract was made retroactive to Aug. 31, 2010 and expired on Aug. 30, 2013.

“Today I have tendered my resignation as the Director of the Office of Workers Compensation, effective Nov. 12, 2010,” his email said. “I will be returning to the private sector to work primarily in the area of governmental relations.”

A LouisianaVoice story last July said that Broadwater resigned in February of 2011 but the email, which surfaced just last week, indicates he left OCW three months prior to that. http://louisianavoice.com/2013/07/10/vice-chair-of-house-labor-committee-represents-insurance-clients-before-office-of-workers-comp-that-he-once-headed/

He went to work for the Baton Rouge law firm of Forrester and Dick and his curriculum vitae linking him to SAS later appeared as part of an SAS application for a contract with the state of Minnesota. WorkersCompSAS (PAGE 29)

That CV cited his work with Forrester & Dick since 2010 and touted his work with LWC from 2008 to 2010, his serving as Chairman of the Governor’s Advisory Council on Workers’ Compensation and as Chairman of the Louisiana Workers’ Compensation Second Injury Board during that same time period.

Broadwater was first elected to the Louisiana House of Representatives in 2011 and was immediately made vice chairman of the House Labor and Industrial Relations Committee. Last October, he appeared on a video in which he hyped the services of SAS Institute during its Business Leadership Series in Orlando. http://www.allanalytics.com/video.asp?section_id=3427&doc_id=269491#ms.

LouisianaVoice over the past week twice sent emails to Broadwater asking who paid his travel, lodging and meal expenses for attending that Orlando conference. Those emails read: “Rep. Broadwater, could you please tell me if you attended the SAS Business Leadership Series event in Orlando last October and if you did, who paid your travel, registration, lodging and meal expenses?”

Read receipts indicate he opened both emails, but he never responded.

In a four-minute video made during the leadership conference, Broadwater provided a background in problems OWC was having with fraudulent claims and the decision to contract with SAS. He said the firm “was able to take a state that was data rich and solutions poor and compile all of that data in a single location so that we could then have multiple applications.”

In the video, he said that while Louisiana has used SAS to address fraud, “we’re starting to move into an area in Louisiana where we evaluate our accounts receivable. “In Louisiana we had about $8 billion in outstanding accounts receivable that were less than five years old. When we’re running an annual deficit in our budget of about $1.5 billion, it makes sense instead of raising taxes or eliminating some tax credits or tax for businesses that drive the economy or cutting services to existing citizens, let’s go collect the money that’s owed to us anyway.”

Broadwater also represents three clients, Qmedtrix ($275 per hour), the Louisiana Home Builders Association, and LUBA Worker’s Compensation ($135 per hour each) in matters pending before his old agency, according to documents filed with the State Board of Ethics in December of 2012.

Moreover, Broadwater has attended meetings between Qmedtrix and Wes Hataway, his successor as director of OWC, to discuss the disposition of numerous cases involving Qmedtrix. Those discussions centered around efforts to get the cases stayed and transferred to another judge, according to supervisory writs filed with the Third Circuit Court of Appeal in Lake Charles last March in the case of Christus Health Southwest Louisiana, dba Christus St. Patrick Hospital v. Great American Insurance Co. of New York.

That writ application concerns procedures and conversations which took place involving numerous pending workers’ compensation cases. “In what may be the pinnacle of irony,” the writ application says, “Mr. Broadwater actually disclosed this ex parte meeting on his state ethics disclosure form.”

The writ application cited Broadwater’s own comment from the disclosure form: “Met with Director of OWC discussing process of resolving disputes over medical billing.”

Broadwater admitted to meeting with Hataway “three or four times in person” (always with a Qmedtrix attorney present) and speaking with him 10 or 15 times on the phone.

Broadwater, in an email letter to LouisianaVoice, said he has never received compensation from a private source for the performance of his legislative duties. He said he approaches his duties as an attorney and as a legislator “with humbleness and with the highest sense of honor and ethical behavior.”

He said state statute “prohibits me from receiving compensation from a source other than the legislature for performing my public duties, from receiving finder’s fees, from being paid by a private source for services related to the legislature or which draws substantially upon official data not a part of the public domain.

“My service as vice chair of the Labor & Industrial Relations Committee in no manner alters my duties or the constraints placed upon me under the Code of Governmental Ethics,” he said.

And while technically correct in his assertions, his employment with a state contractor only weeks after approval of that $4.2 million contract and his continued close association with the head of his old agency in discussions of the outcomes of pending cases do tend to bring into question the propriety of his involvement in those matters.

His negotiations with his old agency while simultaneously serving as vice chairman of the legislative committee that oversees that agency coupled with his representation of SAS in Minnesota and in Orlando do seem to suggest a relationship that is less than arms-length and one that at least skirts the edge of serious ethics questions.

And his refusal to reveal the identity of the person or entity that paid his expenses does nothing to alleviate growing concerns over the coziness between public officials and current or former employers. And it certainly does little to foster confidence in the Louisiana Board of Ethics that Gov. Bobby Jindal successfully gutted six years ago.

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“Quite simply, the court finds defendants’ protestations that they acted in ‘good faith’ when installing the awnings and soaker hoses to be incredible. Defendants breached their duty to preserve the status quo on death row with the goal of thwarting accurate measurement of temperatures, humidity and heat index. This intentional, and by plaintiffs’ unrebutted account successful, destruction of unfavorable evidence is quite sufficient to satisfy the ‘bad faith’ standard.”

—Federal Middle District Court Judge Brian A. Jackson, in ruling for sanctions against a Baton Rouge law firm with $3 million in state contracts, for its actions in a lawsuit against the state by three death row inmates at the Louisiana State Penitentiary at Angola.

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