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Archive for June, 2011

Was ‘leaked’ Chaffe Report real or a DOA misdirecton ploy?

Posted in Governor's Office, House, Senate, Legislature, Legislators, OGB, Office of Group Benefits, Transparency on June 20, 2011| 7 Comments »

Last month, LouisianaVoice submitted the fourth in a series of public records requests to the Division of Administration in an effort to secure a copy of the report done by Chaffe & Associates of New Orleans on the financial evaluation of the Louisiana Office of Group Benefits (OGB).

On May 27, we received an email response from Paul Holmes, Attorney 4, Office of the General Counsel, Division of Administration (DOA). Here is his verbatim reply to that specific portion of our request:

“In response to your May 24, 2011, public records request, please be advised as follows.

A report generated by Chaffe & Associates was received on May 25, 2011. The report is privileged as part of the deliberative process and is exempt from disclosure under R.S. 44:4.1 as well as pursuant to Kyle v. Public Service Commission, 878 So.2d 650 (La. App. 1st Cir. 2004) and Donelon v. Theriot, 2011 WL 1733548, (La. App. 1st Cir. 5/3/11).”

On May 31, Paul Rainwater offered much the same testimony before the Senate and Governmental Affairs Committee, saying that he had received the report on May 25 but that it could not be released because it was “part of the deliberative process,” a well-worn excuse for the Jindal administration to hold back documents from public release.

Even more damning, it was revealed during his testimony that he had not even provided a copy to Scott Kipper, the head man at OGB. Kipper had been appointed CEO of the agency immediately upon the firing of his predecessor, Tommy Teague, on April 15.

Rainwater first promised the committee that he would make a copy of the report available to Sen. Karen Peterson (D-New Orleans) and shortly after his testimony he provided a copy of the report to Kipper. Kipper’s copy of the report supposedly said the only benefit to privatizing OGB would be if the buyer retained the $500 million agency surplus.

Rainwater, apparently because of that language, had a change of heart and directed Kipper not to make the report available to anyone, prompting Kipper to submit his resignation, effective June 24.

As pressure mounted on Rainwater and Deputy Commissioner Mark Brady from the committee and the Legislative Auditor’s office which also wanted a copy, Rainwater finally acquiesced and released a copy to Senate President Joel Chaisson (D-Destrehan) and to the auditor’s office but only after getting senators’ signatures on a confidentiality agreement.

An unnamed senator, however, leaked the report to the Baton Rouge Advocate, which posted the full 42-page report on its web site.

Or did it?

Remember, attorney Holmes and Commissioner Rainwater both said that the report was received by DOA on May 25. Both men are in agreement on that date. Remember that date because it’s important.

The report posted by the Advocate, however, contains a signature page (Page 11) wherein both Jonathan W. Briggs, managing director of Chaffe & Associates, and Jenny E. Day Austin, assistant vice president of Chaffe, signed off on the report.

The report’s signature page is dated June 3. Remember that date because it, too, is important.

So, how is it that both Holmes on May 27, and Rainwater on May 31, claim that the report was received by DOA on May 25 when the Chaffe officials did not sign off on the report until June 3?

Confusing? Yes. It just doesn’t make sense—unless….

….Unless there are two Chaffe reports—one to be “leaked” to the press and one to be withheld from public view.

As far-fetched as that may seem, it’s not unprecedented. It happened at Grambling State University in 1977 and it had repercussions. It cost one long-time employee his job at the university and resulted in a prison sentence for another.

The June 3 report, moreover, contains none of the language about a purchaser retaining OGB’s $500 million surplus.

Finally—and this is most revealing—DOA, like most state agencies has a policy that all incoming documents are date stamped with the time and date of receipt. That includes letters, cards, circulars, packages, and reports. None of the 42 pages of the report contains a single date stamp.

State Sen. Butch Gautreaux was also skeptical of the validity of the leaked report. “(that was) exactly my question when I read the report,” he said of the conflicting dates. “I don’t buy the ‘draft copy’ thing, not for a minute.”

Attempts were made to pose the question to DOA representatives. Neither Brady, DOA Chief of Staff Dirk Thibodeaux, nor Director of Communications Michael DiResto was available and neither returned calls from LouisianaVoice.

Nor was Briggs available at Chaffe & Associates, but Austin was and took our call. When asked about the apparent discrepancy, she first said she could not divulge any information about the report without permission from her client (the state).

When told that we were working on a news story about the conflicting dates and that we wanted to give the company an opportunity to explain the inconsistency, she said she would call officials in Baton Rouge and get back to us.

She never did call back, leaving unanswered the question of how, on May 25, the state could have received a report that its authors did not sign off on until June 3.

As a last resort, an attempt was made to obtain the copy of the report given to Kipper but sources said Rainwater’s office has since retrieved that copy.

Bear in mind, this is a report on the fair market value of OGB, done for OGB, under an OGB contract, the billing for which work will be paid by OGB.

Removing the document from the agency that by all accounts should be legally designated as the custodian of the record only fans the fires of speculation as to the true content of the report.

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Notable Quotables (in their own words)

Posted in House, Senate, Legislature, Legislators, Notable Quotables, Revenue, Transparency on June 19, 2011| Leave a Comment »

“We heard of pressure being put on people, of deals and threats. I heard (Rep. Ernest) Wooton say he hoped that wasn’t done. But if it was, shame on the people who did it! If that was the case, if there was a road, or a bridge, or a ball park used in this, make sure every time you ride on it, cross it, or watch children play, that you think about the people who are suffering from the diseases caused by smoking.”

—State Rep. H. Bernard Lebas (D-Ville Platte), a pharmacist, on reports of pressure applied by the governor’s office on legislators prior to a House vote to override Gov. Bobby Jindal’s veto of the renewal of a 4-cent cigarette tax.

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House hits new low in not overriding Jindal’s tax renewal veto; even Louisiana Baptist Convention loses its backbone

Posted in Governor's Office, House, Senate, Legislature, Legislators, Taxes, Transparency on June 19, 2011| 5 Comments »

Is it possible that by letting his national aspirations get in the way of the public will Gov. Bobby Jindal has betrayed the citizens of the State of Louisiana?

Is it possible that he ignored his own words written 14 years ago because he was blinded by the lights of a bigger and more alluring playing field?

Is it possible that the siren song of higher office may have drowned out the governor’s ability to hear his own constituents?

Is it possible that Jindal’s rhetoric about no new taxes coupled with his obsession with privatizing state agencies in exchange for a financial quick fix could have caused him to turn his back on $48 million in revenue for the state treasury?

Sadly, yes, yes, yes, and yes.

Is it also possible that the 11 House members who switched their votes on the attempt to override the governor’s veto of the cigarette tax renewal represented politics as usual in Louisiana?

Add one more shameful yes.

On the vote to renew the tax, there were 70 yeas, 30 nays, and five no-shows.

On the vote to override the governor’s veto of the tax renewal, only 58 displayed sufficient courage to stand up to Jindal–12 votes short of the necessary two-thirds needed.

Let’s take a look at the voting on the veto override:

Of the five no-shows in the original vote, two voted in favor of the override. They were James Armes (D-Leesville), and Barbara Norton (D-Shreveport).

Billy Chandler (R-Dry Prong), George Cromer (R-Slidell), and Noble Ellington (R-Winnsboro) were also absent on the first vote but came back to vote against overriding Jindal’s veto.

For the most gutless act, we turn to Mickey Guillory (D-Eunice), Clifton Richardson (R-Baton Rouge), and Charmaine Sitaes (D-New Orleans). Each of the three voted to renew the tax but wilted under pressure, choosing to take a walk on the override vote when they were really needed. Can you say spineless?

Of the 11 members who originally voted to renew the tax but switched their votes to help kill the override two were Democrats: Robert Billiot of Westwego and Jim Fannin of Jonesboro. The others were all Republicans: Stephen Carter and Hunter Greene, both of Baton Rouge, Nancy Landry and Joel Robideaux, both of Lafayette, Charles Chaney of Rayville, Frank Hoffman of West Monroe, Kay Katz of Monroe, Tom McVea of Jackson, and Thomas Willmott of Kenner.

You think that’s bad? As the TV commercials say, “Wait. There’s more.”

Just where was the Louisiana Baptist Convention in the days leading up to the override vote?

Good question.

Apparently all those trips in the state helicopter to Protestant churches scattered across the north Louisiana landscape has paid huge political dividends for the governor.

Good move, Guv. Apparently it’s not enough that congregation members can set themselves up for future campaign solicitations by obligingly providing their names, phone numbers, and email and mailing addresses when you pass around your clipboard at those church services.

But now Jindal’s staff chooses to lobby the Louisiana Baptist Convention into submission only weeks after the organization joined with other faith leaders to call for tripling the state’s cigarette tax to 36 cents. The state’s cigarette tax currently is one of the lowest in the nation.

Jindal’s Chief of Staff Timmy Teepell claims he offered no tradeoffs and that his meeting with Rev. John Yeats, director of communications for the Louisiana Baptist Convention, was simply a “gentlemen’s meeting,” with no pressure applied. He said he just wanted to meet with officials of the organization so he could explain the administration’s anti-tax increase position.

Yeah, right. And Rep. Ernest Wooton (I-Belle Chasse) confided to his fellow House members prior to the vote that he hoped there was a Santa Claus.

So how would Teepell, or Rev. Yeats, for that matter, explain how the Louisiana Baptist Convention went from advocating that the state’s cigarette tax be tripled to going strangely quiet on the override vote—after the “Come to Jesus” meeting with Teepell?

Jindal insisted that the renewal of the 4-cent-per-pack tax, scheduled to expire in 2012, was a new tax. That took a huge leap of faith, bad pun intended. Moreover, the governor didn’t even attempt to reconcile his position to veto the renewal of an existing tax with his support of increased tuition at state colleges and universities.

Nor did he distinguish that position from his advocacy of a 3 percent increase in state employee contributions to their retirement contributions—money not earmarked to pay down the unfunded liability of the retirement fund, but instead to help close a $1.6 billion state budget deficit.

When is a new tax not a new tax? Apparently when it’s a fee increase.

Here’s what some of Wooton’s colleagues had to say in support of the override in the hours leading up to the failed effort:

• Juan LaFonta (D-New Orleans)—“You cannot threaten or intimidate somebody who stands for what is right and stands up as a leader.”

• Eddie Lambert (R-Gonzales)—“I’m a Republican, a fiscal conservative, but this (override) is the right thing to do.”

• Sam Jones (D-Franklin)—“It seems we have no problem in taxing the dreams of our kids by raising tuition over and over.”

• Elton Aubert (D-Vacherie)—“I ask you today if nobody lobbied you on this bill and you had to make a conscious decision on what you know to be right, how would you vote?”

• Hollis Downs (R-Ruston)—“There’s a time for politics and a time for principle. This time, principle trumps politics.”

• H. Bernard LeBas (D-Ville Platte)—“Be the voice of the people back home and not the voice of the people in the back of the chamber.” (Teepell and other members of the governor’s staff observed the vote from the rear of the chamber.)

• Barbara Norton (D-Shreveport)—“We have an opportunity to let our light shine throughout the state. Let’s stand as a full body.”

• Thomas Carmody, Jr. (R-Shreveport)—“My seatmate has said repeatedly, ‘Is no one going to go down and defend the governor on this?’ Damn, y’all, I can’t! Why? Because this does not make common sense.”

• Jerome Richard (I-Thibodaux)—“I’m not voting for a tax increase, but this is not an increase. I voted for a renewal and I’m gonna stick by it.”

• House Speaker Jim Tucker (R-Terrytown)—“I don’t like objecting to a position my governor has taken. When two men agree on everything, only one man is thinking. That’s the case today. I have to vote to override to maintain my integrity. I urge all of you to maintain your integrity today so you’ll sleep well tonight.”

• HB 591 author Harold Richie (D-Bogalusa)—“There’s nothing I can take away from you, nothing that I can give you except the opportunity to vote your convictions and vote for your people back home.”

• Walt Leger (D-New Orleans)—“ If you vote against (the override) you will be initiating a tax. You will be creating a $50 million hole in the budget. Think about what was said to you when you were asked not to override the veto.”

• John Bel Edwards (D-Amite)—“ It takes a lot of courage to take on the governor, especially when he is demonstratively and egregiously wrong.”

• Joe Harrison (R-Gray)—“There’s one way to avoid the tax: stop smoking.”

• Wooton—“Man up.”

• Jeffery Arnold (D-New Orleans)—“I told my mother this morning that I didn’t know if we had the votes to override. Her response was, ‘That’s stupid.’”

• Ricky Hardy (D-Lafayette)—“Our governor raised the price of education and lowered the price of cigarettes. What’s wrong with this picture?”

But for the best, most revealing quotes of all, we need only go directly to the source of all the controversy—Gov. Jindal himself.

It was 14 years ago, 1997, when the Secretary of the Louisiana Department of Health and Hospital, a 26-year whiz-kid named Bobby Jindal authored a 10-page paper entitled “Choice-Sensitive Health Costs.”

Here, then, are excerpts of that paper, in the governor’s own words:

• “Smoking is blamed for more deaths than all cancers not caused by tobacco combined.”

• “….Smoking causes 7.3 percent of the nation’s health care costs. Inflated to $21.2 billion in 1983 dollars, this corresponds to $87 per American or $393 per adult smoker.”

• “It is unfair to others without these habits to take resources away from them to cover the health care expenses of risk-takers.”

• “The enormous health care costs generated by unhealthy lifestyle choices cannot be ignored as society attempts to frame a health care system which is both just and efficient.”

• “….Studies cited document billions of dollars in health care costs and millions of years lost to premature deaths caused by smoking.”

• “Some non-smokers are beginning to question why they should subsidize the health expenditures of others.”

• “Though cigarette prices have been rising 6 percent to 19 percent every year since 1980, federal excise taxes stayed constant at 16 cents a pack from 1983 until the 1990 budget crisis.”

• “Reducing cigarette consumption would dramatically improve Americans’ health status and lower expenditures.”

• “Currently, the 24-cent-per-pack federal tax raises $5.2 billion annually.”

• “Raising the tax would also reduce the incidence of smoking; every 10 percent increase in cigarette prices reduces adult demand by 4 percent and teenage demand by 12 percent to 14 percent.”

Wait. What? Did he really say that increasing taxes on cigarettes would reduce the incidence of smoking?

Yep.

Anyone see a potential TV ad for a Democratic opponent?

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How to request a public record from any local or state agency

Posted in Public Records, Transparency on June 19, 2011| 1 Comment »

We have been asked to post instructions that our readers may follow so that they may request public records.

Whether you wish records from your municipal government or the state makes no difference: the law is the same. For state records from the Division of Administration and any agency under the DOA umbrella, make your requests to:

mark.brady@la.gov
dirk.thibodeaux@la.gov
doacommissioner@la.gov
lesia.batiste@la.gov

Address your emails to each one of these individuals. Remember, state law stipulates that they must make records available for inspection immediately or notify you as to why they are not available.

Begin your request with:

Pursuant to the Public Records Act of Louisiana, R.S. 44:1 et seq., I request a copy of the following information:

Then explain in specific detail what information you are requesting.

You may also want to attach the Public Affairs Research Council publication on public records (Citizens’ Rights Card) which you may access at:

http://www.la-par.org/rightscard.cfm

PAR’s Sunshine Law Fact Sheet offers a plain-language explanation of the state’s sunshine laws with practical tips on how the public can participate in open meetings and request public records. The documents are designed to be distributed by citizen groups as one-page, double-sided reference tools for guidance through the sometimes complicated process of gaining access to records and meetings of state and local government bodies.

CITIZENS’ RIGHTS UNDER THE PUBLIC RECORDS LAW (R.S. 44:1-41)
Anyone 18 or older has the right to examine, copy or obtain a copy of a public record (unless specifically exempted) of any public body including any state, parish or municipal agency or board (including the Legislature). Public records requests may be submitted by mail (by court ruling). Generally anything “having been used, being in use or prepared” for use in the conduct of public business is a public record, regardless of physical form. Public records include such things as drafts of documents, statistics, maps, letters, memos, budget requests, budgets, tapes, electronic data, payrolls, certain retirement information, and tax assessment rolls.

No fees may be charged for inspecting records during regular business hours. A requester may be asked to pay in advance if overtime is required to make a public record available.

Enforcing The Public Records Law:

A custodian who determines a record is not public, must provide written reasons, including the legal basis, within three working days. If a requester is denied a public record by a custodian or if five business days have passed since the initial request and the custodian has not responded, the requester may file a civil suit to enforce his right to access. the custodian bears the burden of proving that the record is not subject to disclosure because of either privacy rights or a specific exemption. The law requires the courts to act expeditiously in such suits and to render a decision “as soon as practicable.”

If the requester prevails in the suit, the court will award reasonable attorney’s fees and other costs. If the requester partially prevails, the court may, at its discretion, award reasonable attorney’s fees or an appropriate portion thereof. (The custodian and the public body may each be held liable for the payment of the requester’s attorney’s fees and other costs of litigation; however, the custodian cannot be held personally liable for these fees and costs if he acted on advice from a lawyer representing the public body.)

The court may also award the requester civil penalties of up to $100 for each day the custodian arbitrarily failed to give a written explanation of the reasons for denying the request. In addition, if the court finds that the custodian arbitrarily or capriciously withheld a public record, it may award actual damages proven by the requester to have resulted from the custodian’s action. (The custodian may be held personally liable for the actual damages unless his denial of the request was based on advice from a lawyer representing the public body.)

In addition to civil remedies, the law also provides criminal penalties. Anyone with custody or control of a public record who violates the law or hinders the inspection of a public record will be fined $100 to $1,000, or imprisoned for one to six months upon first conviction. For a subsequent conviction, the penalty is a fine of $250 to $2,000 or imprisonment from two to six months, or both.

Sample Letter to Request Public Records:

Dear Custodian of Public Record(s):

Pursuant to the Public Records Act of Louisiana, R.S. 44:1 et seq., I/we request the following public records be made available for inspection and/or copying:

[List either specific document(s) you are requesting or if you don’t know, describe the information you are requesting as specifically as possible.]

Under the provisions of R.S. 44:32, if you raise a question as to whether the record requested is a public record, you are required to notify in writing the person making the request of your determination and the reasons, including the legal basis, therefor. Said notice shall be made within three days of the receipt of the request, exclusive of Saturdays, Sundays, and legal public holidays.

Under the provisions of R.S. 44:33, if the public record is not immediately available you are required to certify this in writing promptly, and in your certificate fix a day and hour within three days, exclusive of Saturdays, Sundays, and legal public holidays, for the exercise of the right granted in the Public Records Act.

Under R.S. 44:34, “If any public record applied for by any authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by this Chapter.”

If you are invoking R.S. 44:34 to deny this request, please answer the following questions in detail.

1. Is a copy of the requested public record usually located in your office?

2. Why is your copy of the requested public record absent from your office?

3. Where is your copy of the requested public record?

4. Who has received your copy of the requested public record?

5. How and from whom did the present custodian gain control of your copy of the requested public record?

6. What was the exact time your copy of the requested public record was taken from your custody and control?

7. When will your copy of the requested public record be returned to your office?

8. Is there any other public official who has a copy of the requested public record?

9. State the name or names of anyone who has a copy of the requested public record?

10. State the location(s) where the requested public record can be viewed.

11. State the hours and dates when the requested public record can be viewed.

Penalties for violating the Public Records Act include criminal prosecution.

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Notable Quotables (in their own words)

Posted in House, Senate, Legislature, Legislators, Notable Quotables, Taxes, Veto on June 19, 2011| 2 Comments »

“This veto is not the fruit of wise leadership. There’s a time for politics and a time for principle. This time, principle trumps politics. Tobacco, if not already legal, would be an illegal drug. It is the worst legal substance human beings can place inside their bodies. Don’t be on record today as supporting its use.”

—Rep. Hollis Downs (R-Ruston), urging fellow House members to override Gov. Bobby Jindal’s veto of the 4-cent cigarette tax renewal. The override effort fell 12 votes short.

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