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Archive for August, 2013

“That’s not a comment by the Supreme Court one way or another concerning who’s right or wrong on the lawsuit. That’s simply the court saying we’re not going to hear the case now.”

—Attorney Jimmy Faircloth, who is beginning to challenge boxer Peter Buckley’s stellar record of 32 wins against 256 losses, commenting on the Louisiana Supreme Court’s denial of state writs which upholds lower court orders that the LSU Board of Stuporvisors must relinquish the list of semifinalists and finalists for the LSU presidency.

“The Supreme Court said ‘Writ denied. Stay denied.’ As a result, records will have to be produced. As long as the board doesn’t produce those records, it is in contempt.”

—Attorney Lori Mince, who represented the Baton Rouge Advocate and the New Orleans Times-Picayune in the litigation to force the release of the records.

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Don Quixote, Jimmy Faircloth, Chicago Cubs, Bobby Jindal William Jennings Bryan, LSU Board of Stuporvisors, Minnesota Vikings, Jimmy Faircloth (again), Houston Astros, Bobby Jindal, Charlie Brown.

They all have one thing in common—the inability to grasp the brass ring. Yeah, we know, the Minnesota Vikings went to the Super Bowl four times, but how many of those did they win? The same number Jimmy Faircloth has won going to bat for Bobby Jindal in the state courts on various issues pushed by the governor.

Like Charlie Brown, Faircloth keeps trying to kick the football being held and suddenly pulled away by Lucy, aka Bobby Jindal only to fall flat time after time.

The futility of the Cubs and Astros should by now be familiar to Faircloth who this week was again shot down by the Louisiana Supreme Court, this time on the issue of turning over the list of semifinalists and finalists for the LSU presidency.

That list apparently is the equivalent to a closely guarded state secret and even now Faircloth refuses to capitulate to the state’s high court.

Writ denied. Stay denied” was the terse message in the Supreme Court’s ruling. During my 20 years with the Office of Risk Management where I worked with state attorneys to defend lawsuits against the state, that language meant one thing: we write a check to the plaintiff. Period.

Ah, but the ever-optimistic Faircloth proclaimed that those four words were “not a comment by the Supreme Court one way or another concerning who’s right or wrong on the lawsuit.”

Huh?

“That’s simply the court saying we’re not going to hear the case now.”

Huh? Again.

Uh, Jimmy, loyalty to one’s boss is a fine attribute. But there comes a time when those of common sense must understand the finality of an issue and throw in the towel.

This is one of those times.

It is more than apparent by now that Faircloth/Jindal/LSU is not going to emerge victorious in this little showdown over the public’s right to know what its representatives are doing behind closed doors.

The continued resistance to the courts and the insistence that the records do not have to be produced only feeds an already growing suspicion about the forthrightness, honesty, and candor of this administration which has managed to operate in the dark shadows of obscurity, ambiguity and deceitfulness during Jindal’s nearly seven years in office.

Requests for public records by LouisianaVoice—records that are in no way protected—have been met time after time after time after time by delaying tactics, generally preceded by a cryptic email that reads, “Pursuant to your public records request, we are still searching for records and reviewing them for exemptions and privileges.  Once finished, we will contact you regarding delivery of the records.  At that time, all non-exempt records will be made available to you.

This was the message from Division of Administration (DOA) attorney David Boggs on Aug. 7 to a request we submitted on Aug. 1. The Boggs response was already three working days late by the time he sent his response. The state’s public records law stipulates that records must be made available immediately upon request unless they are unavailable in which case the custodian of the record must respond in writing as to when the records will be available within three working days.

LouisianaVoice is still waiting for the records we requested 29 days—20 working days—ago. At the minimum fine of $100 per day, that comes to $2,000 for each of the seven records we requested, or $14,000 total.

The LSU litigation, however, has inspired us. District Court Judge Janice Clark imposed a $500 per day fine for LSU’s non-compliance. That bill currently totals more than $50,000.

We will likewise request the $500 per day fine, plus court costs, attorney fees and damages. The $500 per day fine alone comes to $70,000—money we can certainly use but which the taxpayers of Louisiana would not be asked to pay if the administration had simply complied with the law as public servants are expected to—and should—do.

Jimmy Faircloth, David Boggs or whomever DOA designates may wish to prepare for another defense after we file suit.

Not that he minds. Whenever he is given one of these dogs to defend, he simply turns on the time clock and the meter begins ticking—at the expense of you, the taxpayer. And he has done quite well defending indefensible lawsuits from pension reform to vouchers to public records. He has been paid more than $1 million to date by the Jindal administration, enough to place him in the upper tier of state legal contractors.

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Consolidation of power or rats deserting sinking ship?

Gov. Bobby Jindal appears to be consolidating his power base as he moves toward his final two years in office by positioning key allies as caretakers to watch the store in his four-year hiatus—a break he will no doubt us to seek higher office of latch on with some right wing think tank.

What Jindal is doing in the placement of former Chief of Staff Steve Waguespack as president of the Louisiana Association of Business and Industry (LABI) and Division of Administration spokesman Michael DiResto with the Baton Rouge Area Chamber (BRAC) as senior vice president for economic competitiveness is eerily similar to Huey Long’s lining up all his toadies before moving from the governor’s office to the U.S. Senate.

He earlier had helped get Scott Angelle, who almost certainly would have been replaced as Secretary of Natural Resources by Jindal’s successor, elected to the Public Service Commission and only recently he orchestrated the “retirement” of Congressman Rodney Alexander by placing him in a $130,000-a-year job as head of Veterans Affairs, a job, which if he remains three years, will boost his state retirement from about $7,500 to $82,000 per year.

By convincing Alexander to hang up his congressional spurs, Jindal opened the door (he hopes) for State Sen. Neil Riser to move into Alexander’s former Fifth District slot. That little coup may yet backfire as there has already been considerable pushback to that blatant back room deal.

Though BRAC did not say so, an additional duty for DiResto might be to help identify and sanction “legitimate” news media representatives. Nearly two years ago, DiResto arbitrarily decided that our sister organization, Capitol News Service, was not “legitimate.” That was the reason he gave—before relenting more than an hour later—for denying a copy of Jindal’s executive budget to CNS.

More lucrative work for Faircloth?

Jindal and Superintendent of Education John White’s ill-fated voucher plan has run into another obstacle in the form of a U.S. Department of Justice lawsuit to block vouchers in 22 of 34 parish school systems currently under federal desegregation orders.

It’s not the first time this issue has come up but the filing of the lawsuit adds a new dimension to the voucher controversy and it could be a new opportunity for Jindal’s favorite lawyer Jimmy Faircloth.

Financial windfalls don’t come along very often—unless you are Faircloth, who has already received some $1.1 million in fees while unsuccessfully defending the administration on a number of issues ranging from vouchers to retirement to lack of transparency in the selection of a new LSU president.

Now he has a golden opportunity to once again start the legal meter running.

At this rate, he could retire when Jindal leaves office.

Jindal invests in state retirement system even as he trashes its stability

You may remember all the hoopla about the state’s busted retirement systems. Jindal paraded administrative appointive officials before legislative committees to sound the alarm that the retirement systems were broke, kaput, bankrupt, broken and otherwise unsalvageable—unless the legislature approved Jindal’s radical program for state pension reform. That the “reforms” would have been devastating to state employees and would violate employee contracts was besides the point.

This was one of the dogs that Faircloth was asked to defend in state court. And it was one of several cases in which Faircloth was shot down in flames.

But wait! Even as the retirement systems were circling the drain (according to Jindal), Jindal was surreptitiously buying back his retirement from his prior service with the state in order to increase his own state pension.

Kinda makes you wonder  if he really believed his own Chicken Little falling sky rhetoric, doesn’t it?

Republican indignation over voucher suit

Hayride blog columnist Kevin Kane dutifully parroted the administration line that it was such a shame to trap kids in lousy schools.

Jindal called the lawsuit “shameful,” and said it was imperative to give every child, “no matter their race or their income, the opportunity to get a great education.”

It certainly is interesting to see these elitist types become so concerned with the education of black children so late in the day.

Katrina Obama’s fault, Louisiana GOP poll shows

A recent poll, admittedly conducted by the Democratic-leaning Public Policy Polling, is one of those surveys that Jindal has chosen not to trumpet as proof that he’s doing a “heckuva job.”

The poll showed that 29 percent of state Republicans said that President Obama was responsible for the poor federal response to Hurricane Katrina which devastated New Orleans eight years ago tomorrow (Aug. 29).

Obama may be many things—indecisive, weak, occasionally confused—but one thing he was not, was president. He was a freshman in the U.S. Senate, still three years away from being elected president.

At least Timmy Teepell didn’t try to saddle Obama with the Katrina debacle in his infamous tweet exchange with Baton Rouge blogger Bob Mann recently.

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We’ve come across a few odds and ends lying around that we feel might warrant a second look.

Another take on blood tests and one-vehicle accidents

First we would like to acknowledge that we initially wrote a piece based on erroneous information from certain people whose judgment we trusted but who were wrong. Because of their advice, we also were wrong in saying that blood alcohol tests are “routine procedure” in one vehicle accidents. It turns out that is not the case and we respectfully defer to the state trooper who investigated Attorney General Buddy Caldwell’s accident last week. The trooper said in his report that Caldwell did not appear to be impaired and accordingly, he did not take a blood sample for testing. We have been informed by State Police and others that it is not “routine procedure” to take blood tests in single-vehicle accidents.

ATC moves in with State Police, not so the ATC director

The Louisiana Office of Alcohol and Tobacco Control has been moved from its former headquarters at United Plaza on Essen Lane in Baton Rouge to the Louisiana State Police compound on Independence Boulevard, ostensibly to save money.

ATC Director Troy Hebert and his administrative assistant Jessica Starns, however, were allowed to remain at the United Plaza offices and to even rent additional space for Hebert’s office.

What’s with that? Shouldn’t an agency director be physically located at the same address as his employees and not several miles across town? That would be like having a governor who spends all his time in other states. Oh, wait. We already have that, don’t we?

Baton Rouge publisher opposes freedom of expression

Normally, a member of the Fourth Estate would be up in arms at any suggestion at muzzling a critic of government, a suggestion any publisher, editor of reporter would quickly point to as a threat to the First Amendment’s guarantee of freedom of speech.

Such is not the case of one Baton Rouge publisher, we’re told. Reports have it that this publisher, a staunch supporter of Gov. Bobby Jindal, has gone on rampages in his office, ranting to his subordinates and anyone else who will listen that he wants Robert Mann stripped of his tenure at LSU—and fired.

Mann, who has worked with three U.S. senators (Russell Long, Bennett Johnston and John Breaux) and former Gov. Kathleen Blanco, currently holds the Manship Chair in Journalism at the Manship School of Mass Communication at LSU.

A journalist and political historian, Mann also just happens to author a controversial political blog called Something Like the Truth http://bobmannblog.com/ in which he generally takes the Jindal administration to task for its roughshod trampling of all who dare disagree with him, be they state civil service employees, doctors, college presidents or legislators.

Mann is careful to feature a prominent disclaimer which says, “Opinions expressed on this blog are solely those of the author, not LSU, the Manship School nor the Reilly Center for Media & Public Affairs.”

But that apparently is not enough for this publisher, who dutifully prints every inane press release by the governor that purports to make the state look good despite reams of negative national surveys on poverty, obesity and health care.

So much for a fair and independent press serving as a watchdog on behalf of the citizenry. We’re just sayin’…

Cerise Memo: LSU Board quorum?

Remember our story last week about that July 2012 meeting in the LSU President’s conference room where former Department of Health and Hospitals Secretary Alan Levine pitched the privatization plan for LSU’s 10-hospital system?

There was a key sentence then-head of the LSU Health Care System Dr. Fred Cerise included in his memorialization of that meeting regarding Levine’s presentation:

“The LSU board members present indicated they want LSU’s management to pursue this strategy,” the Cerise Memo said.

But wait. The LSU Board of Supervisors consists of 15 voting members, all appointed by the governor, and one student member who has no vote.

The Louisiana Open Meetings Law, R.S. 42: 4.2, headed “Public policy for open meetings; liberal construction,” reads thusly:

  • “Meeting” means the convening of a quorum of a public body to deliberate or act on a matter over which the public body has supervision, control, jurisdiction, or advisory power. It shall also mean the convening of a quorum of a public body by the public body or by another public official to receive information regarding a matter over which the public body has supervision, control, jurisdiction, or advisory power.
  • “Public body” means village, town, and city governing authorities; parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.
  • “Quorum” means a simple majority of the total membership of a public body.

The statute further stipulates that “every meeting of any public body shall be open to the public unless closed pursuant to R.S. 42.6, R.S. 42:6.1 or R.S. 42:6.2.”

First of all, R.S. 42:6 clearly states that a public body “may hold executive session upon an affirmative vote …of two-thirds of its constituent members present.”

R.S. 42:6.1 simply lists the reasons an executive session may be held which you may explore in greater detail here: http://www.lawserver.com/law/state/louisiana/la-laws/louisiana_revised_statutes_42-6-1

R.S. 42:6.2, re-designated as R.S. 42:18 in 2010, applies only to the Legislature. http://www.legis.state.la.us/lss/lss.asp?doc=99494

But let’s return to R.S. 42:4.2, that pesky little law about quorums.

Remember, the Cerise Memo said that the “LSU board members present” indicated their desire for the LSU administration to move forward with the Levine proposal.

Remember also, the LSU Board of Supervisors is comprised of 15 voting members.

But there were only four members of the LSU board present at that meeting, according to Cerise’s notes. They included Rolfe McCollister, Bobby Yarborough, Dr. John George and Scott Ballard.

Hardly a quorum.

But then, it was the likely intent of those present to avoid having a quorum because a quorum (eight voting members, in this case) would necessitate public notices of such a meeting and making said meeting open to the public.

Obviously, that was not the wish of the board members who did attend. They wanted, above all else, to avoid a full quorum so that the meeting could be conducted in secret.

If you check out our masthead, we recently added an anonymous quote:

  • It is understandable when a child is afraid of the dark but unforgivable when a man fears the light.

Former U.S. Supreme Court Justice Louis Brandeis (Nov. 13, 1856-Oct. 5, 1941) is credited with coining the phrase, “Sunlight is the best disinfectant.”

But in avoiding the necessity of opening up that July 17, 2012, meeting to the public by purposely skirting the requirement of a quorum so as not to qualify as an official meeting, those four board members were legally barred from taking any official action.

Yet, that minor point of law did little to deter them from directing the LSU administration to pursue Levine’s plan.

Yes, we are fully aware that the four board members not only spoke for the entire board but for Gov. Bobby Jindal as well. As Elliott Stonecipher recently noted in his blog Forward Now, state ethic laws prohibited Levine from conducting business with the State for two years after his departure as DHH Secretary. http://forward-now.com/?p=8403

Levine’s last day at DHH was July 16, 2010. The meeting at which he presented his plan to LSU administrators and board members was on July 17, 2012.

And we don’t believe in coincidences. And anyone who doesn’t believe Levine was in constant contact with the administration in the days, weeks and months leading up to that July 17 meeting is…well, a fool.

Such is the Gold Standard of Ethics that Jindal has bestowed upon the people of Louisiana.

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LouisianaVoice has obtained a copy of the minutes of a meeting in Baton Rouge a little over a year ago which led to the firing of the head of the LSU Hospital System and the CEO of Interim Louisiana Public Hospital in New Orleans by the Jindal administration.

LSU Health Care System head Dr. Fred Cerise and Interim Louisiana Public Hospital CEO Dr. Roxanne Townsend were fired just days apart last year—Cerise in late August and Townsend in early September—following a July 17 meeting at which former Secretary of Health and Hospitals (DHH) Alan Levine pitched a plan to privatize the state’s system of LSU medical centers.

Levine was at the meeting on behalf of is firm, Health Management Associates (HMA) but was recently hired as president and CEO of Mountain States Health Alliance.

Present at that meeting, besides Cerise, Townsend and Levine were then-LSU President William Jenkins, DHH then-Secretary Bruce Greenstein, LSU Medical Center Shreveport Director Dr. Robert Barish, HMA CFO Kerry Curry, LSU Health Science Center Shreveport Vice Chancellor Hugh Mighty and LSU Board of Supervisors members Rolfe McCollister, Bobby Yarborough, John George and Scott Ballard. LSU Health Science Center New Orleans Chancellor Larry Hollier and Vice Chancellor for Clinical Affairs at LSU Health Sciences Center New Orleans Frank Opelka also participated by teleconference.

Opelka was promoted to Cerise’s position when Cerise was replaced.

The meeting was held in the LSU president’s conference room.

Both Cerise and Townsend expressed reservations about Levine’s proposal but several members of the LSU Board of Supervisors who were present at the meeting “indicated they want LSU’s management to pursue this strategy,” according to a summary of the meeting prepared for Jenkins by Cerise prior to his being replaced by Opelka.

Along with his two-page summation of the meeting, Cerise also submitted a third page containing a list of five concerns he had with the privatization plan pitched by Levine. It was that list that list of concerns which most likely got Cerise removed as head of the LSU Health System via an email from Jenkins.

HMA, headquartered in Naples, Florida, was the subject of a scathing report by CBS news magazine 60 Minutes less than six months after Levine and Curry met with LSU officials in Baton Rouge and Levine has since moved on to become the CEO of Mountain States Health Alliance.

The thrust of the 60 Minutes story which aired last Dec. 2, was that profits, not patient care, was the driving force behind HMA’s emergency room decisions and that emergency room doctors were pressured to admit emergency room patients “regardless of medical need” to boost the company’s bottom line.

Some speculation had HMA squarely in the mix insofar as the proposed privatization of LSU’s 10-hospital system but the 60 Minutes story apparently thwarted those plans.

Levine denied that in an interview with the Baton Rouge Advocate last October. “I have had no conversations with LSU about taking over any of the existing LSU hospitals,” he told the paper. “I was there (in Baton Rouge) as a former (DHH) secretary. I was not there to pitch my company.”

Little more than a month later, following the 60 Minutes story by CBS correspondent Steve Kroft, Levine found himself trying to salvage the HMA image.

HMA, which owns 70 hospitals in 15 states, was accused on camera by several former employees of setting admission targets and that doctors were coerced into admitting more patients. The former employees said doctors who did not meet quotas were threatened with their jobs.

Despite Levine’s denials that HMA was interested in managing the LSU hospitals, Jenkins seemed to think otherwise. “I would say he would be interested in business,” Jenkins said in the same story containing Levine’s denial. “You would be surprised how many companies across the country are interested in these hospitals.

Levine, according to Cerise’s notes, recommended as an initial step that LSU sell its hospital in Shreveport (LSU Medical Center) and use the proceeds to “offset budget cuts for the rest of the LSU system.”

He suggested that the buyers would form a joint venture with LSU, invest capital into the facility and develop a strategy for LSU “to more aggressively compete in the hospital market.”

“The LSU board members present indicated they want LSU’s management to pursue this strategy,” Cerise’s notes said. “Greenstein stated that LSU should look to generate two years of funding to address the state funds shortfall in the system through the sale of Shreveport’s hospital.”

It was at that point that Cerise indicated his concern that such a strategy would take time to develop and that LSU would likely need to go through a competitive public procurement process and “likely legislative approvals.”

It was subsequently determined that legislative approval was not legally required; all that was required was for the legislature to be informed of the administration’s actions.

“There appeared to be agreement that LSU develop a plan that would not result in closure of hospitals,” Cerise’s notes said. “When the question was posed to the group, ‘Will LSU close hospitals,” George responded, ‘We hope not.’ The clear message was that the board members did not want LSU to proceed with any hospital closures at this point.”

Since that meeting, Earl K. Long Medical Center in Baton Rouge and W.O. Moss Medical Center in Lake Charles have each closed.

“Cerise asked Greenstein if he would allow LSU to draw federal funds to try to fix part of our problem and he replied, ‘Yes.’”

Among the concerns expressed by Cerise in an addendum to the meeting meetings which he addressed to Jenkins:

  • There is no commitment by DHH to mitigate the budget reduction while we work on the very complex Shreveport deal. Therefore, if later in the year, we realize that w cannot close a Shreveport sale by year end, we will run a deficit which is against the law and grounds for removal of those causing the deficit;
  • There will be a significant community/political reaction to LSU assuming a competitive posture with a profit partner while receiving favorable Medicaid and uninsured financing from the state;
  • We could see a significant negative community reaction to a plan that sells the Shreveport hospital and spends a large amount of the proceeds on hospitals in south Louisiana. There are also local contractual relationships which might be adversely affected and objected to;
  • We need to be transparent with the legislature. If our plan is to spend as if we will complete a “joint venture” and secure funding later in the year, the board and the legislature need to realize that wer have no alternative solution if the plan fails later in this fiscal year. This will put Shreveport and New Orleans at risk as well as put LSU at risk of running a deficit;
  • The only certain way for LSU is to live within its newly assigned budget is to close multiple facilities now. If we do not do this, we are running the risk of delaying and creating an unmanageable budget crisis later in the year that will put Shreveport and New Orleans at risk. That risk includes others blaming LSU for not taking actions earlier.

“I am asking that you share this memo or at least the substance of it with the full board to ensure they are informed and that their direction to us that we delay definitive budgetary action until the end of August to better assess the likelihood of a Shreveport sale with a statewide distribution of the proceeds is clear and unambiguous,” Cerise said in his memorandum to Jenkins.

At the conclusion of the meeting, Jenkins called for the creation of a task force to include then-Commissioner of Administration Paul Rainwater, Greenstein, George, Yarborough, McCollister, Ballard, Mighty, Barish, Hollier, Cerise and Townsend.

But in a matter of weeks, Cerise and Townsend were gone.

And a year later, a blank contract was agreed to which allows Biomedical Research Foundation of Northwest Louisiana (BRF), an organization with no appreciable cash flow and no experience in running a hospital, to assume control of LSU Medical Center in Shreveport and E.A. Conway Medical in Monroe—facilities with combined revenues of about $400,000.

Moreover, BRF will receive all the facilities’ assets with the state getting the liabilities.

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