Thanks to the resourcefulness of C.B. Forgotston, LouisianaVoice has obtained a copy of the seven-page report on the Edmonson Amendment and it appears that State Police Superintendent Col. Mike Edmonson and trooper Louis Boquet of Houma are legally prohibited from taking advantage of a special amendment adopted on their behalf by the Louisiana Legislature.
Meanwhile, LouisianaVoice received an unconfirmed report concerning the origination of the amendment that if true, adds a new twist to the curious series of events leading up to passage of the amendment in the last hours of the recent legislative session.
The report, authored by Louisiana State Police Retirement System (LSPRS) board attorney Denise Akers and Florida attorney Robert Klausner, specifically says that Edmonson and Boquet are barred from accepting the retirement windfall because the amendment granting them the special exemption from the state’s Deferred Retirement Option Plan (DROP) is unconstitutional on no fewer than three levels.
Klausner and Akers also expressed concern that the source of funding for the increased benefits would have been the Employee Experience Account “which is reserved as the source of future cost of living benefits (for state police retirees and their widows and children) and payments toward the unfunded accrued liability.”
Edmonson, under the amendment would have seen his retirement income increase by $55,000 a year. The amount of what Boque’s retirement increase would have been is unknown.
The report, however, stopped short of recommending that the board file legal action to have Senate Bill 294, signed into law by Gov. Bobby Jindal as Act 859, declared unconstitutional.
Instead, it recommended that the LSPRS “simply decline to pay any benefit under Act 859” and that the matter “would only need to be litigated if someone benefitting from the act (Edmonson or Boque) filed to enforce it.” The reported added that both men “have indicated they do not desire to enforce it. Thus, LSPRS may incur no litigation cost in this matter.”
The report said that should either man attempt to collect the increase retirement benefits by challenging the board’s refusal to pay the benefits, “it would fall to the attorney general to defend the law, rather than expending (LSPRS) resources to pursue a costly declaratory relief action.”
The report noted that the Louisiana Supreme Court, in a decision handed down only last year, “made it clear that a pension law adopted in violation of constitutional requirements is void and of no effect.” That was the ruling that struck down Jindal’s controversial state pension reform legislation.
“It is our view that pursuit of a declaratory relief or other legal action seeking to declare Act 859 invalid is unnecessary,” the report said. “By determining that it will not enforce the act, the board acts consistent with its fiduciary duty.”
The board still must vote to accept the recommendations of Klausner and Akers and with Jindal and Edmonson controlling the majority of the 11 seats on the LSPRS board, such a vote remains uncertain.
The board is scheduled to take up the matter at its next meeting, set for Sept. 4 but likely to be moved up now that the report is public.
The report also noted that the amendment was not proposed in either the House or the Senate, but added during conference committee.
SB 294 was authored by State Sen. Jean-Paul Morrell and dealt only with administrative procedures in cases in which law enforcement officers came under investigation. State Sen. Neil Riser (R-Columbia) inserted the amendment during conference committee discussion of the bill but recent reports have surfaced that place Morrell, who also was one of the three senators—along with three representatives—who served on the conference committee, squarely at the center of the controversy as well.
Morrell authored the bill at the request of the Fraternal Order of Police (FOP) but was said to have subsequently told the FOP lobbyist that he would have to “hijack” the bill to conference committee in order to accommodate state police and Edmonson.
FOP President Darrell Basco, a Pineville police officer, said he had no personal knowledge of such events and lobbyist Joe Mapes did not return a phone call from LouisianaVoice.
Jindal, meanwhile, has remained strangely silent on the issue of his signing the bill with no apparent vetting by his legal counsel.
The Klausner report said the act was unconstitutional on three specific counts:
- The amendment “does not meet the constitutionally required ‘one object’ requirement” which says, “The legislature shall enact no law except by a bill introduced during that session…Every bill…shall be confined tone object. Every bill shall contain a brief title indicative of its object. Action on any matter intended to have the effect of law shall be taken only in open, public meeting.” Conference committee proceedings occur in closed sessions.
- The amendment “does not meet the germaneness requirement” of the Louisiana Constitution, which says, “No bill shall be amended in either house to make a change not germane to the bill as introduced.”
- “No notice was provided as required by the constitution for retirement related bills and the bill itself never indicated that proper notice was given, all in violation of the Louisiana Constitution,” which says, “No proposal to effect any change in existing laws or constitutional provisions relating to any retirement system for public employees shall be introduced in the legislature unless notice of intention to introduce the proposal has been published, without cost to the state, in the official state journal on two separate days. The last day of publication shall be 60 days before introduction of the bill. The notice shall state the substance of the contemplated law or proposal, and the bill shall contain a recital that the notice has been given.”
Here is the full Klausner report:
Louisiana Voice 
It looks like this matter is about to reach its conclusion. The arguments in the report about affirmatively voting not to pay any benefit does make sense and thereby dump litigation costs onto the AG’s Office if either of the troopers sues to seek enforcement (which they ought to figure is a lost cause). Even the AG’s Office shouldn’t be able to botch winning that case. After all, the roadmap for victory has already been laid out in a Florida expert pension-law attorney’s report. Great job on Treasurer Kennedy forcing the issue to let the public view this report in real-time! Now I guess we can move on to the next act of corruption within the Jindal administration. There’s no shortage of them for darn sure!!
No surprise that the Attorneys agreed with the Constitutional issues that even Jeff Foxworthy’s 5th Graders figured out immediately after this story was first reported here on Louisiana Voice by Tom Aswell.
There are certain things within the Attorneys’ Report however that are concerning to me. First, I am no Attorney. I don’t proclaim any special knowledge, training, or understanding. I’m just reading this as an average citizen.
They go step by step with all the constitutional issues that all agree were clearly violated during and by adoption of this law. But then they state that the recent case of Retired State Employees vs the State of Louisiana “made it clear that a pension law adopted in violation of constitutional requirements is void and of no effect”. They seem to use this statement as their basis that no action is therefore necessary and the Retirement Board should simply not follow the unconstitutional law,
If I am looking at the same case they are referring to (2013-CA-0499), I don’t understand their conclusion. Granted, the court agreed with the lower courts that “declared” the law unconstitutional, but citizens actually brought suit. The case was decided on the specifics of the case and a court actually declared it unconstitutional. They simply agreed.
Which brings me to my concern. Maybe it doesn’t matter, but I don’t think the attorneys, the media, you, or me saying it’s unconstitutional actually makes it so. Isn’t that what the Judicial branch is for? These attorneys have called it that, but isn’t it constitutional until a court says it isn’t? Can the board legally ignore it? I don’t know but we need to know,
It appears to me, the Attorneys are trying to minimize the concern and provide coverage for no action by the Board. They note that it would be a “costly declatory relief action”. How much can it cost if it is so clear? Is the Attorney General going to fight this with every resource at his disposal all the way to the US Supreme Court? Doubtful. If this cost isn’t acceptable for doing what’s right, what is the amount that is? Where do we draw the cost line for defending the integrity and protection of the retirement system? What about next time?
So now we’ve determined it was wrong, we just ignore it? We don’t need to worry because Edmonson said he wouldn’t take the money? Didn’t he at first say he didn’t know who came up with it but he didn’t know anything about it until after it passed? Didn’t we later learn he did know about it in advance and that his second in command actually provided the amendment for it? All intelligent people know ignored problems really don’t go away, they just surface later as crises.
Maybe the culprits (Edmonson, Riser, Morrel, Dupuy, and Jindal, who signed it) will pay the cost since their greed and political corruption caused it.
C. B. Forgotston has your same concerns, Jerry. He believes the matter must be litigated to be resolved and he has excellent legal credentials. It would be a lot easier for everybody concerned if Robert is correct in his agreement with the Klausner report and the board is likely to go that way, but the concerns you raise are real.
Since the LA Supreme Court declared such a law “void and of no effect,” they’re saying Act 859 is already void (going on the premise of the obvious constitutional violations). Any payment by LSPRB under these circumstances would be grounds for criminal prosecution, which is why it would be utterly stupid for these board members to vote against the report’s recommendations. Doing so would merely demonstrate their hell-bent determination to perpetuate corruption. I agree with the report’s findings and believe our taxpayer resources could be put to better use pursuing criminal indictments against all who had any meaningful knowledge of this amendment (which is why they all want to deny any integral knowledge – they know this has potential criminal implications). Such pursuit of criminal indictments would most certainly include Neil Riser. It would also include the collection of cronies at LSP who worked to put this package together and even went so far as to create “talking points” to try and keep it intact when the handwriting was on the wall that it was blatantly unconstitutional (and venting frustration at my videotaping the 7/16 LSPRB meeting and posting online). An indictment should be pursued against LSP legal counsel because it is foolhardy to think he was not heavily involved in this matter. If, in fact, he was not, then it demonstrates that the whole LSP operation is a TOTAL clown show and circus act wherein they believe they are gods who can do whatever they want. Lastly, an criminal indictment against Gov. Jindal is in order once it’s established he originated this proposal (which I firmly believe he did and that’s why he has remained so silent on the whole issue) or upon him obtaining meaningful knowledge of this scheme, he gave it his full blessing to proceed onward with the midnight heist. If the LSP apprehended looters in a time of emergency (e.g. a hurricane), would they say, “Now guys, you need to put that merchandise back and go on about your daily activities?” We all know the answer to that question, and to permit this attempted theft to go without prosecution sends the same signal as would be the case with the looters (i.e. keep it up, what have you got to lose?). Criminal pursuit of indictments is particularly appropriate given the nature of the position of LSP personnel. Hit these guys with a decent-sized Federal fine and a few months in Federal prison (not to mention the considerable legal expenses to defend against a criminal act) and the message will start to resonate. Do nothing more than vote to “not extend any benefit afforded under Act 859” and you’ll see more “Edmondson Amendments” and other corrupt practices by elected officials and others entrusted with positions of trust and presumed integrity.
My reply from last night somehow disappeared from here. Bottom line, I’m well aware of what they are saying, it just doesn’t mean what they want people to believe. They mean to say that if challenged, the LSPRS should have no problem winning because it is a slam dunk. There are no guarantees and in Louisiana, until a court declares a law unconstitutional, it doesn’t really matter what they say or we say, or anyone else says. Before we pack up the wagons and declare victory, we need to understand that nothing has changed. We already knew everything they put in their report. You and I will have to respectfully agree to disagree on this.
Actually I’m going to revise my commentary at the end of http://www.lspripoff.com to be essentially what you’ve relayed. I would have done it already, but I had a flat tire and am in the shop awaiting replacement. I think you’ll be pleased with the revised commentary, but obviously I can’t revise a comment on this site once posted. Just give me about 3 hours (assuming I won’t be here more than 90 more minutes), and I’ll have it out and distributed.
I don’t like this “solution.” I’m no lawyer, but it seems it would leave the door open for Edmonson or his heirs one day to sue the State to comply with the law, and it seems to be just the sort of thing the State would offer to settle, to make it go away. They need to undo the damage legislatively.