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Archive for the ‘Public Records’ Category

State Treasurer John Kennedy on Tuesday told the House Appropriations Committee that the Division of Administration exerts extortion-like tactics against legislators and takes the approach that it should not be questioned about the manner in which it hands out state contracts and that the legislature should, in effect, keep its nose out of the administration’s business.

Kennedy was testifying on behalf of House Bill 30 by State Rep. Jerome Richard (I-Thibodaux) which provides for reporting, review and approval by the Joint Legislative Committee on the Budget (JLCB) of all contracts for professional, personal and consulting services totaling $40,000 or more per year which are funded exclusively with state general fund (SGF) or the Overcollections Fund. HB 30

HB 30 FISCAL NOTES

Kennedy, in a matter of only a few minutes’ testimony, attacked figures provided by three representatives of the Division of Administration (DOA) who objected to the bill because of what they termed additional delays that would be incurred in contract approval and because of claimed infringement upon the separation of powers between the legislative and administrative branches of government.

Here is the link to the committee hearing. While Kennedy spoke at length on the bill, the gist of his remarks about DOA begin at about one hour and 13 minutes into his testimony. You can move your cursor to that point and pick up his attacks on DOA. http://house.louisiana.gov/H_Video/VideoArchivePlayer.aspx?v=house/2015/may/0526_15_AP

That argument appeared to be a reach at best considering it is the legislature that appropriates funding for the contracts. It also appeared more of a smokescreen for the real objections: DOA’s, and by extension, Bobby Jindal’s wish that the administration be allowed to continue to operate behind closed doors and without any oversight, unanswerable to anyone.

DOA representatives tried to minimize the effect of the bill by downplaying the number and dollar amount of the contracts affected (which raises the obvious question of why the opposition to the bill if its impact would be so minimal). The administration said only 164 contracts totaling some $29 million would be affected by the bill.

Kennedy, however, was quick to jump on those figures. “The numbers the division provided you are inaccurate,” he said flatly. “The Legislative Auditor, who works for you,” he told committee members, “just released a report that says there are 14,000 consulting contracts, plus another 4600 ‘off the books.’

“The fiscal notes of 2014 by the Legislative Fiscal Office—not the Division (DOA)—said the number of contracts approved in 2013 by the Office of Contractual Review was 2,001—not 160—professional, personal and consulting service contracts with a total value of $3.1 billion,” he said. “I don’t know where DOA is getting its numbers.

“To sum up their objections,” he said, “it appears to me that DOA and more to the point, the bureaucracy, is smarter than you and knows how to spend taxpayer dollars better than you. That’s the bottom line. They don’t want you to know. This bill will not be overly burdensome to you. Thirty days before the JLCB hearing, you will get a list of contracts. If there are no questions, they fly through. If there are questions, you can ask.”

Kennedy tossed a grenade at DOA on the issue of separation of powers when he accused the administration of blackmailing legislators who might be reluctant to go along with its programs.

“Let’s talk about how the division’s advice on contracts has worked out,” he said. “The Division advised you to spend all the $800 million in the Medicaid Trust Fund for the Elderly. Now they have zero in that account. In fact, they pushed you to do that. Some of you were told if you didn’t do that, you’d lose your Capital Outlay projects. How’s that for separation of powers? How’d that work out for you?

“My colleagues from Division who just testified against the bill are the same ones who told you to take $400 million out of the (Office of Group Benefits) savings account set aside to pay retirees’ and state employees’ health claims. How’d that work out?”

Kennedy didn’t stop there. He came prepared with an entire laundry list of accusations against the administration.

“My colleagues from Division are the ones who told you, ‘Look, we need to privatize our health care delivery system,’ which I support in concept. They sat at this table and I heard them say we would only have to spend $600 million per year on our public-private partnership and (that it would be) a great deal ‘because right now we’re spending $900 million.’ I thought we’d be saving $300 million a year. Except we’re not spending $600 million; we’re spending $1.3 billion and we don’t have the slightest idea whether it’s (the partnerships) working. How’d that work out for you?

“I sat right here at this table and I heard my friends from Division say we need to do Bayou Health managed care. You now appropriate $2.8 billion a year for four health insurance companies to treat 900,000 of our people—not their people, our people,” he said. “There’s just one problem: when the Legislative Auditor goes to DHH (the Department of Health and Hospitals) to audit it (the program), they tell him no.”

Kennedy said that pursuant to orders from DOA, “the only way they can audit is if they take the numbers given him (Legislative Auditor Daryl Purpera) by the insurance companies.

“This is a good bill,” he said. “It’s not my bill. My preference is to tell Division to cut 10 percent on all contracts and if you can’t do it, you will be unemployed. But this bill allows you to see where the taxpayer money is being spent.

“I have more confidence in you than I do in the people who’re doing things right now,” he said.

Kennedy said he was somewhat reluctant to testify about the bill “but I’m not going to let this go—especially the part about separation of powers.

“You want to see a blatant example of separation of powers?” he asked rhetorically, returning to the issue of the administration’s heavy handedness. “How about if I have a bill but you don’t read it. You either vote for it or you lose your Capital Outlay projects. How’s that for separation of powers?”

That evoked memories from November of 2012 when Jindal removed two representatives from their committee assignments one day after they voted against the administration’s proposed contract between the Office of Group Benefits and Blue Cross/Blue Shield of Louisiana.

“Everything they (legislative committees) do is scripted,” said Rep. Joe Harrison (R-Gray), speaking to LouisianaVoice about his removal from the House Appropriations Committee. “I’ve seen the scripts. They hand out a list of questions we are allowed to ask and they tell us not to deviate from the list and not to ask questions that are not in the best interest of the administration.” http://louisianavoice.com/2012/11/02/notable-quotables-in-their-own-words-142/

Rep. John Schroder (R-Covington) asked Kennedy what his budget was to which Kennedy responded, “Less than last year and less that year than the year before and probably will be even less after this hearing. But you know what? I don’t care.

“There’s nothing you can say to get Division to support this bill,” he said. “They’re just not going to do it.

“You can’t find these contracts with a search party. But if you require them to come before you, you can get a feel for how money is being spent that people work hard for and you can provide a mechanism to shift some of that spending to higher priorities.

“Next year, you will spend $47 million on consulting contracts for coastal restoration. I’m not against coastal restoration; I’m all for it. But these consultants will not plant a blade of swamp grass. Don’t tell me they can’t do the job for 10 percent less. That $47 million is more than the entire state general fund appropriation for LSU-Shreveport, Southern University-Shreveport, McNeese and Nicholls State combined.

“Under the law, agencies are supposed to go before the Civil Service Board and show that the work being contracted cannot be done by state employees but that is perfunctory at best,” Kennedy said.

To the administration’s arguments of delays in contract approvals and infringements on the separation of powers, Rep. Brett Geymann (R-Lake Charles) dug in his heels. “This is not a bad thing,” he insisted. “We’re not going to go through every page of every contract unless someone calls it to our attention. It doesn’t matter if it’s 14,000 or 14 million contracts. The number is immaterial. If there’s an issue with a contract, we need to look at it.”

For once, the administration did not have its way with the legislature. The committee approved the bill unanimously and it will now move to the House floor for debate where Jindal’s forces are certain to lobby hard against its passage.

Should the bill ultimately pass both the House and Senate, Jindal will in all likelihood, veto the measure and at that point, we will learn how strong the legislature’s resolve really is.

But for Kennedy, the line has been drawn in the dust.

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Additional checks by LouisianaVoice into the expenditure of campaign funds after leaving office has revealed that Troy Hebert, director of the Office of Alcohol and Tobacco Control was something of a piker in what appear to be his inappropriate expenditures of $39,000 in campaign contributions long after he left the Louisiana Senate in November of 2010.

Campaign reports examined by LouisianaVoice show that two former governors combined to spend more than $600,000 on what would appear to be such non-allowable expenditures as clerical salaries, club memberships, consulting fees, federal taxes, internet fees, office equipment, and something called “constituent relations” long after there were no longer any constituents. shall not be used for any perso

Three other former legislators who, like Hebert, now serve in other appointive capacities in state government were also checked at random and found to have combined for a little more than $22,000 in post-office-holding expenditures that appear to be for purposes specifically disallowed by the Louisiana Board of Ethics.

But former governors Kathleen Blanco and Mike Foster have made generous use of their leftover campaign bank accounts by paying hundreds of thousands of dollars for similarly disallowable purchases and expenditures.

Campaign expenditures for former governors Buddy Roemer and Edwin Edwards were not available on the State Ethics Board’s web page.

At the same time, we found one former legislator who has not spent a penny of his leftover campaign funds—for anything. Democrat Dudley “Butch” Gautreaux of Morgan City has spent none of his campaign funds—for any purpose—since leaving office in January of 2012. We sincerely hope there are others.

Foster, a Republican, accounted for more than $201,000 in apparent non-allowable expenditures from his campaign fund. He had the following expense items listed in his campaign expenditure report:

  • $3,000 for internet service;
  • $66,675 for clerical payroll;
  • $70,000 for copiers and other office equipment and maintenance contracts;
  • $9,400 in dues to the Camelot Club and City Club, both in Baton Rouge;
  • $4,300 in workers’ compensation insurance premiums for office staff;
  • $25,000 for bookkeeping services;
  • $9,800 in federal income tax payments on office staff;
  • $13,500 for “constituent services”;
  • $403 in payments to M.J. Foster Farms—an apparent reimbursement to himself for unknown expenditures.

In addition, Foster contributed to numerous causes, including $1,000 to a lamppost restoration drive in his hometown of Franklin and other charitable civic and church organizations and several political candidates. Only his contributions to political candidates and to the Louisiana Republican Party appeared to have been allowable under Ethics Board regulations.

Democrat Blanco easily eclipsed Foster with more than $400,000 in expenditures described in various Ethics Board opinions as not allowable for purposes “related to a political campaign or the holding of a public office.”

Some of her questionable expenditures included:

  • $188,000 for communication consulting;
  • $88,000 in clerical salaries;
  • $67,000 in donations to various causes;
  • $64,500 in tech support;

To be fair, however, there was brief speculation that Blanco would oppose Jindal in his re-election campaign of 2011 until health considerations took her out of that race. Any funds spent in exploration of a possible run would probably be looked upon favorably as campaign-related. Charitable contributions are allowed under certain conditions, such as in the cases of pro-rata refunds of unused contributions but otherwise such use of campaign funds for charitable donations is not allowed. We found an Ethics opinion that addresses that very issue: James David Cain

Like Foster, she also contributed generously to several political candidates as well as to the Louisiana Democratic Party, all allowable under Ethics Board regulations.

Former Sen. Anne Duplessis (D-New Orleans), now a member of the LSU Board of Supervisors ($13,440), former Rep. Kay Katz (R-Monroe), now a member of the Louisiana Tax Commission ($7,700), and former Rep. and former Sen. Noble Ellington (R-Winnsboro), now Chief Deputy Commissioner of Insurance ($1,300), each also had combined expenditures from their respective campaign funds totaling about $22,400 for purposes not allowed, according to Ethics Board regulations.

Small as those expenditures were when contrasted to Blanco, Foster or even Hebert, however, the samplings of more than $662,000 in questionable expenditures found by LouisianaVoice for only six former office holders—and the many examples of misuse of campaign funds by current officer holders—illustrates the critical lack of oversight of the manner in which office holders and former office holders alike live the good life off, what for many of them, is tax-free income most times in the tens of thousands of dollars but in some cases, six figures.

Campaign funds are contributed by donors, such as lobbyists, corporations, or other special interests who want something in return, like a favorable vote on a key issue. And because the politicians generally oblige, the donors couldn’t care less how campaign funds are spent. The funds are donated for the wrong reasons, so why should they care if they are spent for the wrong reasons?

That in a nutshell is what is wrong with our political system today. Far too much quid pro quo, a few winks, a couple of drinks over steak or lobster and donors look the other way as the recipient enjoys nice restaurants, club memberships, luxury car leases and tickets to college and pro athletic events and perhaps the occasional hooker.

Two things can occur to rein in this abuse:

The Louisiana Legislature, in a rare (and we do mean rare) moment of integrity and soul-searching, could enact binding laws governing who can contribute to campaigns (such as tracking the federal elections laws prohibiting corporate contributions), limiting PAC funds and spelling out in detail how campaign funds may and may not be spent.

But don’t look for that to happen in this or any other lifetime. Like corporations and banks, politicians just aren’t going to self-regulate without including a gaggle of hidden loopholes in any legislation that might happen to address the issue. You can bet any legitimate attempt will either be killed outright or amended to death in committee.

The other—and this, sadly, is just as unlikely—the voters of Louisiana will, in unity, say “ENOUGH!” They will, like Peter Finch as Howard Beale in Network, scream out their windows, “I’m mad as hell and I’m not going to take it any more” and they will turn out of office any legislator who so much as buys the first ticket to a football game or dines at a fine restaurant or leases a luxury auto with campaign funds. And in equal unanimity, they will demand reimbursement of all funds wrongly spent by current and former office holders alike.

But a final word of caution: That would be in a perfect world so don’t hold your breath.

 

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By the content of that comment from the writer calling himself Earthpapa, we figured we must have hit a nerve with our report about Troy Hebert’s “campaign” expenditures on hotels and LSU tickets after he left office.

But the fact is, an apology is in order. We said he spent $4,930 in campaign funds on LSU tickets after he left office.

On double checking our figures, we find the actual amount is $4,991.

But the lengthy comment by Earthpapa appeared to have Hebert’s footprints all over it and the strident tone of his missive indicated to us that we had scored a direct hit, or very close to it.

And while we’re not saying with any definitiveness that Hebert was the author of the comment, it was enough to send us diving back into his campaign report for other expenditures incurred after he left the Louisiana Senate in November of 2010 to become head of the Office of Alcohol and Tobacco Control (ATC).

(As an aside, the State Ethics Board has said that if campaign funds are not to be used for the purpose of campaigning or holding office, they are to be returned to the donors on a pro rata basis. Accordingly, if 100 donors give $1,000 each and $50,000 is left over and not to be used, then theoretically, the 100 donors would receive refunds of 50 percent of their contributions, or $500 each.)

But Hebert, apparently playing by his own rules, has continued to spend campaign funds at least through last December on such things as Christmas cards, advertising, postage, office supplies, stationery, flowers, food, newspaper advertising, subscriptions, gifts, clerical salaries for his New Iberia office and, of course, those LSU tickets—all expenditures not allowed under state campaign regulations.

Specifically, the Ethics Board says, “Funds must be expended for a use related to a political campaign or the holding of a public office.” (Emphasis by the Board.) But Hebert has not held office nor has he sought political office since becoming ATC director. shall not be used for any perso  may not be used for any personal use unrelated to holding of public office

In all, Hebert (aka Earthpapa?) has shelled out more than $36,300 in non-campaign-related expenditures since December of 2010, according to his own campaign finance records. TROY HEBERT CAMPAIGN EXPENDITURES POST-SENATE

A breakdown of expenditures, in addition to the $4,991 in LSU tickets, includes:

  • $3,539 on newspaper advertising;
  • $14,454 on souvenirs (logo hats and shirts) and office supplies;
  • $1,785 for postage, Christmas cards and newspaper, magazine and cable subscriptions;
  • $1,250 on ornaments, gifts and lunches;
  • $8,500 in political contributions to other candidates (which is allowable);
  • $4,500 in salaries to two clerical employees in a New Iberia office from December of 2012 (the month after he left office) through December of 2013, two years after he left office.

There was no explanation as to why the ATC director needed an office in New Iberia or why his campaign funds had to be used to pay office staff salaries.

In November and December of 2014, three years after leaving office, he spent $3,585 at Erin Oswalt Photography for Christmas cards and in December of 2010, he spent $492 with Oswalt on postcards, campaign expense reports reveal.

His campaign also purchased $1,028 in postage between December of 2010 and December of 2014—not counting the eyebrow-raising $676 in campaign funds spent in December of 2014 for Christmas card postage.

Again, it’s difficult to conceive why the director of a state agency would need to purchase more than $1,700 in postage stamps over a four-year period using campaign funds long after he left office in open violation of campaign regulations.

Perhaps Hebert Earthpapa will contact us and explain the use of campaign funds for non-campaign purposes.

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Because of our limited staff (one, plus a few occasional contributors), we often fall behind in our efforts to keep up with the news of our misbehaving public officials. We try to keep up, but these guys are pretty slick and very resourceful in finding new ways to siphon off funds, whether they be state funds or contributions from campaign supporters.

So, today, we will highlight a couple of politicos who are very tight: Bobby Jindal and his director of the Office of Alcohol and Tobacco Control (ATC), Troy Hebert (whose wife just happens to be the Jindal children’s pediatrician, we’re told).

We have an update on the status of Frederick Tombar III, who, like Hebert was appointed to a high-level position in the Jindal administration only to harass himself out of a job.

Tombar, it seems, has landed on his feet after leaving his $260,000 a year job as director of the Louisiana Housing Corporation because of some sexually explicit emails he sent to two female employees—one, a contract employee and the other an actual employee of the agency.

Both women attempted to put off Tombar’s advances because of fear of losing their jobs but eventually each filed complaints and Tombar left before he could be interviewed during an investigation by Ron Jackson, Human Resources Director for the Division of Administration.

Not to worry. We’re told by sources that Tombar, of New Orleans, had a soft landing at Cornerstone Government Affairs consulting company where he will work alongside two former state Commissioners of Administration, Mark Drennan and Paul Rainwater. http://www.cgagroup.com/index.html

http://www.cgagroup.com/team/RainwaterPaul.html

http://www.cgagroup.com/team/mark_drennen.html

Efforts to reach both Drennan and Rainwater for comment were unsuccessful.

It’s not known what Tombar’s salary at Cornerstone will be, but we are willing to bet it doesn’t approach the quarter-million a year he was making as a Jindal appointee.

That other appointee mentioned earlier, Troy Hebert, of whom much has been written here, little of it good, recently sent a bill to former ATC agent Howard Caviness of West Monroe who now serves as Grambling State University chief of police. Well, actually, the bill was not from Hebert, but from the agency under which he serves, the Department of Revenue (LDR).

The invoice, for all of $123.59 is for an alleged overpayment to Caviness in Dec. of 2012, according to the letter dated April 29 which is stamped “2nd notice.” Supposedly, the $123.59, when collected, will go to help patch over Jindal’s $1.6 billion budget deficit. LDR letter

Attached to the letter is a time sheet for the two-week time period of Nov. 26—Dec. 9, 2012, with no explanation other than a hand-scrawled, “will leave a balance owed.” ATC timesheet

(CLICK ON IMAGES TO ENLARGE)

Caviness, contacted by LouisianaVoice, feels the action is in retaliation for his having testified on behalf of another former agent, Brett Tingle, who Hebert fired while Tingle was recovering from a heart attack.

Reprisals against a state employee by officials in the Jindal administration? Surely not!

But that would fit the modus operandi of Hebert and would give credence to a third former agent who revealed she was ordered to conduct an investigation of LouisianaVoice publisher Tom Aswell (that would be me). That former agent admitted that she did indeed follow through on the investigation but found me “rather boring.” We’ll take boring any day.

But we did our own nosing around and found that Hebert played pretty fast and loose with campaign donors’ money while he was still a state senator—and even after he left office to take over operations at ATC after Jindal did a number on former ATC Director Murphy Painter.

At the top of the list, as with the case of so many office holders, was his $12,165 expenditure for the purchase of what seems to be the most sought-after perk of all state politicians: LSU football tickets—$4,930 of that well after he left the House of Representatives in 2010 to become head of ATC. It’s somewhat difficult to see how whose expenditures, especially the $4,930 spent after he left office, could be justified as being “related to the holding of public office,” as state campaign expense laws clearly dictate. related to a campaign  personal use  cannot use campaign funds for personal use

But, as they say in those cheesy TV commercials, “Wait! There’s more!”

Our boy Troy also shelled out the following amounts for other seeming unrelated purposes:

  • Nov. 11, 2014: All State Sugar Bowl tickets, $590 (again, quite a stretch in tying this to holding public office); SUGAR BOWL
  • April 22, 2009: Sullivan’s Restaurant, Baton Rouge, $2,323.10 for a fundraiser; RESTAURANTS
  • April 1, 2010: Delta Airlines, $691.80 (no explanation of any destination, but his House district was pretty small and probably didn’t require air travel to get around Iberia Parish; TRAVEL
  • April 1, 2010: Hilton Hotel, Washington, D.C., $1,505.70. Ah! There’s his destination for that Delta flight. But what was he running for in Washington? HOTELS
  • May 10, 2011: Monteleone Hotel, New Orleans, $500. About those two hotel bills: state regulations limit hotel rooms to a mere $120 per night. Perhaps someone should sent Hebert a bill for the difference. Oh, wait. The rooms were paid out of campaign funds, not the state treasury. So that makes it okay, we guess.  travelguide

Still, $15,452 in campaign expenditures which somehow just don’t pass the smell test for legitimate campaign expenditures, especially $5,520 of which was spent after he left office.

And then there’s Jindal.

Since 2009, a year after he first took office, he has racked up an eye-popping expenditure of $169,597 in hotel room costs alone. TRAVEL

Even more revealing, all but $30,000 of that ($139,660) has been since his re-election in October of 2011, evidence that he has spent precious little time in Louisiana performing the “job he always wanted,” and the job to which he was elected.

Jindal also spent more than $185,000 in campaign money since 2003 on air travel, his campaign expense records show. Because his travel expenses were about equally divided between pre- and post-re-election in 2011, it would indicate that much of his lodging was provided by organizations to whom he was speaking.

By running as an “undeclared” candidate for the Republican presidential nomination, he was able to make free use of campaign funds he reaped while running for and serving as governor. That would explain why he is so cagey about his non-candidacy candidacy: the rules change and federal regulations kick in once he is a declared candidate. His self-serving claim to be “praying for guidance” over his decision has little or nothing to do with it; it’s all about the way he can spend the money.

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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.”

 

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