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Archive for August, 2014

Flurry of document shredding raises dust at DHH on heels of lawsuit filed against Medicaid claims processing contractor

Posted in Contract, Contracts, Courts, DHH, Health Care, Lawsuits, Public Records, State Agencies on August 6, 2014| 16 Comments »

The seventh floor of the Bienville Building on North 4th Street in Baton Rouge became a beehive of activity recently when employees of a temporary personnel service moved in to begin shredding “tons of documents,” according to an employee of the Louisiana Department of Health and Hospitals (DHH).

DHH is headquartered in the Bienville Building and the source told LouisianaVoice that the shredding, undertaken “under the guise of being efficient and cleaning,” involves documents that date back as far as the 1980s.

“The significance of this is that this is occurring in the midst of a lawsuit (that) DHH is filing against Molina in relation to activities that go back to the ‘80s,” the employee said. “Everyone is questioning the timing. Westaff temporary people have been in the copy room of the seventh floor for approximately two weeks now, all day, every day, shredding documents.”

https://www.westaff.com/westaff/main.cfm?nlvl1=1

The employee said so many documents were being shredded “that the floor is full of dust and employees have been ordered to clean on designated cleaning days” and that locked garbage cans filled with shredded documents “are being hauled from the building daily.”

LouisianaVoice submitted an inquiry to DHH that requested an explanation “in light of the current litigation involving DHH, Molina and CNSI”—two companies the agency contracted with to process Medicaid claims.

CNSI (Client Network Services, Inc.), which replaced Molina as the contractor for those services in 2011, had its $200 million contract cancelled by the Jindal administration after allegations of contact between then-DHH Secretary Bruce Greenstein and CNSI, his former employer, during the contract selection process. Investigations by the Louisiana Attorney General’s and the U.S. Attorney’s offices ensued but little has been heard since those investigations were initiated. Meanwhile, CNSI filed suit against the state in Baton Rouge state district court in May of 2013, alleging “bad faith breach of contract.” http://theadvocate.com/home/5906243-125/cnsi-files-lawsuit-against-state

Molina, meanwhile, was reinstated as the contractor to process the state’s Medicaid reimbursements but last month the state filed suit against Molina Healthcare and its subsidiary Molina Information Systems, alleging that the state paid Molina “grossly excessive amounts” for prescription drugs for more than two decades because the firm engaged in negligent and deceptive practices in processing Medicaid reimbursements for prescription drugs.

Prescription drugs account for about 17 percent of the state’s annual Medicaid budget, the lawsuit says.

The state’s lawsuit says that Molina has processed the state’s Medicaid pharmacy reimbursement claims for the past 30 years but from 1989 to 2012, Molina neglected to adhere to the state formula for payments and thereby committed fraud and negligence, violated the state’s consumer protection and Medical Assistance Programs Integrity laws. http://theadvocate.com/news/business/9579038-123/la-sues-medicaid-drug-payment

Olivia Watkins, director of communications for DHH, told LouisianaVoice by email on Wednesday that the Division of Administration maintains a contract with Westaff for temporary workers which can be used by different state departments. “DHH requested temporary workers through the existing contract to assist with various projects, including shredding,” she said.

A search of LaTrac, the state’s online directory of state contracts, failed to find either Westaff or Molina listed as contractors among either its active or expired contracts.

“With regard to the shredding,” Watkins said, “those documents that were shredded were old cost reports, statements and facility documents that were outside of their document retention period (anywhere from 5-10 years). The files being shredded were in no way related to the department’s previous contract with CNSI.”

Watkins, while denying any connection to the CNSI contract, failed to mention whether or not the shredded documents involved Molina’s contract or the state’s litigation against the company even though the LouisianaVoice inquiry specifically mentioned both companies.

In June of 2002, the nation’s largest accounting firm, Arthur Andersen, was found guilty of unlawfully destroying documents relating to the firm’s work for its biggest client, the failed energy giant, Enron.

And while that conviction was eventually overturned, the damage from its actions doomed the company and it ultimately shut its doors for good.

In the weeks leading up to the Enron collapse, Andersen’s Houston practice director Michael Odom presented a videotaped talk—that was played many times for Andersen employees—on the delicate subject of file destruction.

In that video, Odom said that under Andersen’s document retention policy, everything that was not an essential part of the audit file—drafts, notes, emails and internal memos—should be destroyed immediately. But, he added, once a lawsuit was filed, nothing could be destroyed. Anything could be lawfully destroyed, he advised Andersen employees, up to the point when legal proceedings were filed (emphasis ours). http://www.mybestdocs.com/hurley-c-rk-des-law-0309.htm

“If it’s destroyed in the course of the normal policy and litigation is filed the next day, that’s great,” he said, “because we’ve followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.”

In a matter of days, Andersen’s Houston office began working overtime shredding documents, according to authors Bethany McLean and Peter Elkin in their book The Smartest Guys in the Room (The Amazing Rise and Scandalous Fall of Enron).

Perhaps the DHH shredding had nothing to do with the CNSI contract with DHH or with the litigation filed by CNSI over cancellation of its contract.

And it may be that the shredding was in no way connected to the Molina contract, even though Watkins failed to address that specific question by LouisianaVoice.

It could well be, as Watkins said, the document destruction was purely a matter of routine housekeeping.

But the timing of the shredding flurry, coming as it did only days following the July 10 filing of DHH’s lawsuit against Molina, and DHH’s murky and adversarial relationship with the two claims processing contractors do raise certain questions.

And Watkins’ assertion that the shredded records consisted of “old cost reports, statements and facility documents,” the dates of which fall within the time frame of the allegations against Molina, would seem to make those questions take on even greater relevance.

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DHH hospital privatization financial report misleading, but attracts media supporters as the Gospel according to Bobby

Posted in DHH, Governor's Office, Health Care, Media, Privatization, Revenue, Transparency on August 5, 2014| 5 Comments »

When the Department of Health and Hospitals released its “Public-Private Partnership” financial report on nine state hospitals last month, it was pretty much assumed that the state media would accept the glowing report at face value and trumpet the Jindal administration’s brilliance in the privatization plan.

To no one’s surprise, Jindal cheerleader Scott McKay, curiously writing under the pseudonym “MacAoidh,” which he explained was the Gaelic spelling of his name, jumped out in front of the parade. Close behind were Lauren Guillot of the LSU Reveille and Chris LeBlanc of the Thibodaux Daily Comet.

http://www.lsureveille.com/news/hospital-privatization-cost-million-less-than-budget/article_aba78c98-12c6-11e4-9da3-0017a43b2370.html

http://www.dailycomet.com/article/20140724/ARTICLES/140729784

The latest to chime in is Quin Hillyer, an unsuccessful Alabama-congressional-candidate (he finished fourth in the Republican primary)-turned-columnist for the Baton Rouge Advocate who somehow purports to be an expert on Louisiana politics but who continues to live in Mobile.

The DHH report attempted to show that Jindal’s privatization plan—a plan, by the way, that has yet to be approved by the Center for Medicare and Medicaid Services(CMS)—has cost the state $51.8 million less than expected during the fiscal year ended June 30.

STATE HOSPITAL FINANCIAL REPORT

But those numbers are disingenuous at best.

The first column of the DHH spreadsheet contains the amounts budgeted for each of the nine hospitals for the fiscal year that ended on June 30.

That’s simple enough to comprehend but the second column is the key. That column lists the amounts actually spent as of June 30 while the third column reports the difference between the amounts appropriated and the amounts spent. That’s where DHH came up with the aggregate savings of $51.8 million.

But what the report neglects to say is that the books on those fiscal year 2013-2014 expenditures will not be closed until later this month, so any reported costs (Column 2) will necessarily increase, thereby negatively impacting Column 3. (Column 4 simply gives the appropriations for each hospital for the current (2014-2015) fiscal year.)

By way of explanation, “Public Claims” is the traditional Medicaid payments the state made to the public hospitals. “Public UCC” is the uncompensated care, or DSH payments the state made to the LSU hospitals. “Private Claims” are the Medicaid payments made to the new private hospital partners. These are the same payments as the “Public UCC” payments, only larger and fueled by the lease payments used by the state for match, thereby cutting state funds and giving the illusion of shrinking government.

“Private UPL” stands for “upper payment limit,” which is a supplemental Medicaid payment which the state must match—which is now done from the lease payments that CMS has yet to approve. “Private UCC” is DSH payments the state is also allowed to make to private hospitals.

It is not unusual for individual hospitals to vary from their original budgets because they have the flexibility to move money around, using savings in one area to cover expenditures in others. The bottom line is what is significant.

Even with that Enron-esque method of bookkeeping, several hospitals have already overspent their budgets even before the final numbers are in, the report shows. Those include Earl K. Long Medical Center in Baton Rouge ($12.2 million over budget), Interim LSU Hospital in New Orleans ($5.9 million), University Medical Center in Lafayette ($8.8 million) and W.O. Moss in Lake Charles ($1.2 million).

Others that were close to spending all of their appropriations included Chabert Medical Center in Houma and E.A. Conway in Monroe.

The total appropriations for all nine hospitals for the 2013-2014 fiscal year is $1.111 billion against $1.058 billion spent, a difference of $51.8 million, according to the report which again, does not reflect the final numbers.

The 2014-2015 appropriation for the nine facilities is $1.15 billion which means if nothing changes in expenditures for the current budget (a highly unlikely, almost impossible scenario), the state will still spend $91.5 million more on the hospitals in 2014-2015 than in the previous fiscal year.

And should the final numbers for 2013-2014 show that the hospitals spent the entire $1.111 billion appropriated, the state still will spend $39.7 million more this year than last.

Somehow, that just doesn’t support the $51.8 million “savings.”

Moreover, the report conveniently does not provide us with the means of finance so we have no concept of how much is state funding and how much is federal. No matter; the cold hard facts are that the partnerships between the state and private hospitals were supposed to save money and they clearly have not.

The 2013-2014 fiscal year was a hybrid between the old public model and the new private model in which the private hospitals lease the state hospitals and use those lease payments for matching funds that the state puts up to receive federal dollars to make “private” payments.

It is that arrangement that CMS has yet to approve because they involve largely inflated lease payments. While the arrangement may be counterintuitive, the private hospitals are more than happy to agree to the inflated lease payments because the state plans to use those payments as match and promptly draw down big federal matching dollars to then pay back to the private hospitals—if, that is, CMS approval is forthcoming.

None of this matters to Hillyer and McKay, though. Eager to thumb their noses at the skeptics and while taking a deliberate shot at “liberal” gubernatorial candidate State Rep. John Bel Edwards, Hillyer called the hospital privatization plan “good medicine,” adding that early critics “should be pulling out the salt and pepper” in preparation to “eat their earlier words.”

http://theadvocate.com/news/opinion/9878018-123/quin-hillyer-jindals-privatization-was

But even more egregious on Hillyer’s part, he claims (erroneously, it should be noted) that CMS “has not sent an official ‘disallowance’ notice” on the advance lease payments when in fact those have already been disallowed outright as being illegal. That, says Edwards, will likely result in future clawbacks of $507 million that the state will owe Medicaid.

He also quoted DHH Secretary Kathy Kliebert as saying negotiations with CMS have put the feds “in a position where, fairly shortly, they can approve our State Plan Amendments.”

Perhaps so, but we’ve heard that song and dance before so we’re going to withhold judgment on that optimistic report.

At least McKay (or MacAoidh if you will) had the good sense not to accept the DHH spreadsheet as the final numbers and at acknowledged a “fuller accounting” would be forthcoming. “And we’ll know next year, after the first full year of the implementation of Jindal’s idea to privatize the charity hospitals, exactly how much money is saved,” he added, making an apparent assumption there would be a savings despite the increased budget for the current fiscal year. http://thehayride.com/2014/07/surprise-the-privatized-charity-hospitals-come-in-52-million-under-budget/

But then McKay, as is his wont, became a bit melodramatic by pointing out observers “might be at a loss to summon up memories of dead bodies due to neglect as a result of the privatization. If there are oodles of corpses littering the roadsides outside of hospitals throughout Louisiana for lack of admittance, they’ve gone strangely unreported.”

We honestly don’t know where he came up with that wild scenario that he somehow implies was the claim of privatization opponents. “Nobody suffered from the leases of those hospitals,” he continued. “And the state is going to save a lot of money as a result, while likely delivering better services to the public.”

That, of course, remains to be seen. If he is right, he’s right. But it’s difficult to arrive at that conclusion when you look at the numbers on the DHH spreadsheet.

If, that is, you bothered to study the numbers closely which some obviously did not—just as the administration counted on.

(With appreciation to two regular readers who helped us interpret the numbers and their meaning.)

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Notable Quotables (in their own words)

Posted in Uncategorized on August 4, 2014| Leave a Comment »

“Please let the Board Members know how you feel about this unconstitutional attack on the State Police Retirement System. Also, please call or share with your Legislators, those on your email lists and through Social Media such as Facebook so we may all let the Board Members know we won’t accept this. They need to hear not only from retirees who will be adversely affected by this, but also by all citizens, who will bear the cost and suffer the negative effects from possible weakening of the credit rating of the state. It is important to encourage as many people as possible to contact them to let them know you are watching and expect them to defend the system and members. The State Police Retirees and the People of Louisiana deserve better.”

—Excerpt from letter to the citizens of the State of Louisiana by retired Louisiana state police officers who are opposed to the last minute amendment to a bill that gave State Police Superintendent Mike Edmonson a $55,000 per year raise in his retirement income. The raise would be funded from a fund intended to provide cost of living adjustments for state police retirees and their families.

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Retired state police weigh in on Edmonson Amendment with pair of scathing letters to LSPRS board, Louisiana taxpayers

Posted in Boards, Ethics, Finances, Governor's Office, House, Senate, Lawsuits, Legislature, Legislators, Retirement, State Police on August 4, 2014| 7 Comments »

State Sen. Neil Riser wants it to go away. Boy, does he want it to go away!

Gov. Bobby Jindal and State Police Superintendent Mike Edmonson just went away—to Texas, ostensibly to join the Texas National Guard to protect our borders from pre-teen Guatemalan children but perhaps in reality to get away. (But of course with Jindal, it’s difficult to tell; he’s always gone.)

But State Treasurer John Kennedy and blogger C.B. Forgotston won’t let the issue go away and now retired State Police have weighed in on the now infamous Senate Bill 294 amendment, aka the Edmonson Amendment that gave their boss a whopping $55,000 raise in retirement income.

Some observers feel the controversy is dying—as people like Riser and Jindal and Edmonson certainly wish it would—but as long as Forgotston, Kennedy, LouisianaVoice and now the retired state troopers have a voice, there’s no chance the issue will fade away.

It is particularly galling that our governor has left to defend the Texas border from children without ever once opening his mouth to address the bill. It was, after all, Jindal who signed the bill supposedly after his legal counsel Thomas Enright read it, understood the potential long-range impact on the Louisiana State Police Retirement System (LSPRS) and recommended it for signing.

Just as offensive is the continuing silence from members of the LSPRS board, Senate President John Alario (R-Westwego), and House Speaker Chuck Kleckley (R-Lake Charles). Kleckley, Jindal’s personal puppet in the House, has already declined to investigate the matter on the premise that the amendment was inserted by a senator (Riser). Never mind that three of the six-member Conference Committee that approved the amendment were members of the House. Other than Executive Director Irwin Felps who said the board’s legal counsel is considering its options, not a single member of the board has uttered so much as a single word about the Edmonson Amendment.

Perhaps that’s because the board is dominated by Jindal appointees and Edmonson subordinates. That’s not a conflict of interests, that’s a slam dunk for Edmonson and no one, not one person, has challenged Riser’s integrity on this sleazy attempt at legislative chicanery.

And make no mistake about it; there is no other word for it but chicanery. Otherwise, why was the amendment attached to a bill completely unrelated to retirement (despite those state police talking points LouisianaVoice got through a public records request that claimed the amendment was “germane to the original bill.” We don’t know what parallel universe the author of those talking points resides in, but that claim is pure B.S.

Jindal and Edmonson are preparing to shove eight-year-old Guatemalan children back across the Rio Grande to protect us from the horde of refugees (and there is a distinction between illegal immigrants and refugees; these are refugees from child trafficking and Jindal and his pal Texas Gov. Rick Perry want to send them back to prostitution). Jindal whines the TEA Party mantra that they will overload our public school system.

First of all, when did Jindal suddenly give a damn about our public schools? It was he who told LABI that public school teachers have jobs only by virtue of their being able to breathe. Second, Louisiana currently has a little less than 1,100 of these refugees who have been taken in by Louisiana residents. That’s 17 per parish (approximately 1.5 per grade if they are all old enough to enter first grade). That’s overload? Perhaps only because Jindal has raped the public school systems’ budgets for his precious voucher schools like New Living Word in Ruston. No one complained of overload when the Vietnamese came here to escape war ravaged Vietnam. Nor did anyone protest when Cubans poured onto our shores to get away from Castro half-a-century ago. Indeed, we welcomed them with open arms as we should have.

But we digress.

The retired state troopers have fired off two letters. The first is to the LSPRS board and the second is to you, the citizens of Louisiana who, if you can pull yourselves away from Bachelor in Paradise and LSU preseason reports long enough, can put the kibosh on this irresponsible waste of your taxpayer dollars to benefit Edmonson and, by default, one other trooper. We will take the second letter first:

TO ALL LOUISIANA CITIZENS (Special Attention to Louisiana State Police Retirees)

            SB 294 was originally a bill dealing with Investigation Standards in Law Enforcement, more specifically guidelines for dealing with complaints on officers. It was sent to Conference Committee on the next to last day of the 2014 Legislative Session. The next day, when it came out of Conference Committee, a stealth amendment had been added that provided a large increase (reported from $30,000 to $55,000 additional per year) in the Retirement benefit of State Police Colonel Mike Edmonson. This was accomplished by allowing him to revoke his previously irrevocable decision to enter DROP. This permits him to retire at his current salary of $135,000.00 per year and reportedly collect three years of his current salary upon his retirement.

While the circumstances surrounding the submission and passage of the bill are concerning and somewhat a mystery, what is clear is that the bill is funded from the same funds that provide Cost of Living Adjustments (COLAs) to State Police Retirees, Surviving Spouses, and Children.

            State Treasurer John Kennedy, a member of the Retirement Board additionally has warned that this Legislation potentially jeopardizes the State’s Bond Rating. The amendment and subsequent law was passed in violation of The State Constitution, Article X, Section 29 which specifies Retirement Legislation has to be advertised before the session, which it wasn’t. The amendment dealing with another matter altogether subjects it to additional Constitutional challenge. Kennedy has called for an investigation and the Retirement Board has hired an outside attorney to review and make recommendations to the Board. The Board is preparing to meet on this, but indications are that they won’t take any action.

            Please let the Board Members know how you feel about this unconstitutional attack on the State Police Retirement System. Also, please call or share with your Legislators, those on your email lists and through Social Media such as Facebook so we may all let the Board Members know we won’t accept this. They need to hear not only from Retirees who will be adversely affected by this, but also by all citizens, who will bear the cost and suffer the negative effects from possible weakening of the Credit Rating of the State. It is important to encourage as many people as possible to contact them to let them know you are watching and expect them to defend the system and members. The State Police Retirees and the People of Louisiana deserve better.

If you’d like to correspond with us, we are at lsp_retirees@cox.net. If you prefer, your communications with us will remain anonymous. LSPRS BOARD OF TRUSTEES Irwin Felps: ifelps@lsprs.org Executive Director Frank Besson: frank.besson@dps.la.gov Chairman Kevin Marcel: kevin.marcel@dps.la.gov Vice Chairman Shirley Bourg: No email available Mike Edmonson: mike.edmonson@dps.la.gov Designee: Charlie Dupuy: charlie.dupuy@dps.la.gov Elbert Guillory: guillorye@legis.la.gov John Kennedy: jkennedy@treasury.state.la.us Designee: Amy Mathews: AMathews@treasury.state.la.us Stephen Lafargue: slafargue1214@gmail.com Kristy Nichols: kristy.nichols@la.gov Designee: Andrea Hubbard: andrea.hubbard@la.gov Thurman Miller: thurman.miller@.la.gov Kevin Pearson: pearsonk@legis.la.gov Bobby Smith: bobby.smith@dps.la.gov

Here is the letter the retired troopers wrote to the LSPRS board:

Open Letter to Louisiana State Police Retirement System Board Members

Re: Emergency Board Meeting to deal with SB 294

Soon, you will be meeting to decide what action is appropriate to deal with the negative impacts to the retirement system and the state bond ratings of SB 294. Although the meeting will be short, the effects of your decisions will be felt for a long time. SB294 was amended in Conference Committee on June 2, 2014, from a bill dealing with investigation standards in law enforcement complaints to a bill making changes to existing retirement law.

The State Constitution, Article X, Section 29 (C) states:

(C) Retirement Systems; Change; Notice. 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 at least sixty 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.

The final version signed into law had the effect of enabling Colonel Edmonson and one other Trooper to revoke what was heretofore an irrevocable decision for them and many other troopers who retired under those guidelines. Regardless of intent, this law was narrowly written to only apply to two individuals and does not address any others who had already retired within the same original guidelines. Signed by the Governor on June 2, 2014 it became Act 859 of the 2014 regular session.

We call your attention to some things that should guide you in your decision.

For commissioned officers, you took an oath as a Louisiana State Trooper to support the Louisiana Constitution, and to faithfully and impartially discharge and perform all duties according to the best of your ability and understanding.

For all trustees, your oath as trustees on the board binds you to fiduciary responsibility and the Louisiana Code of Governmental Ethics. Here is an excerpt from your handbook:

II. ETHICS

The Louisiana State Police Retirement System trustees shall conform to the standard of ethics as established under the Louisiana Code of Governmental Ethics (R.S. 42:1101 et seq), and perform all their duties and obligations in accordance with their fiduciary obligations as established under Louisiana law and the standard of conduct for business relations which each trustee shall sign upon taking office.

Be aware, the ethics laws are binding on you personally and your decisions and conduct must conform to these statutes and your fiduciary responsibility. Failure to adhere to these subjects you as an individual to possible civil and/or criminal penalties. We recommend each board member, if you haven’t already; familiarize yourself with these statutes, as they are your protection as long as you abide by them. And lastly, your decision should be based on what is best for the retirement system and those retirees and surviving spouses and children who depend on this board to protect their future. The funding for SB 294/ Act 859 comes from the account used for cost of living adjustments (COLAs) which has a direct negative impact on those retirees, widows/widowers, and children who most need and deserve these increases.

Administrations and people come and go. What we are left with is our Integrity and our Honor. No one can forcibly take those from you; you have to choose to give them up. How you handle this situation will define and follow you. Regardless of all the other issues related to this, your responsibility is to defend the Integrity of the Louisiana State Police Retirement System with fairness and impartiality.

The only course of action that protects the system, its participants, the state, and you as a trustee is to immediately initiate legal action. You must seek to enjoin this unconstitutional and damaging law and further pursue a permanent ruling by the courts to strike this law down on constitutional and dual object grounds.

We request this be provided to each Board Member at the meeting dealing with this issue and that the Board Members affirmatively add this into the regular record and minutes.

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Additional records in Rapides land dispute paint different picture than one depicted in original LouisianaVoice story

Posted in Uncategorized on August 1, 2014| 8 Comments »

There are, unfortunately, times when we believe we have the full story….and don’t. When that occurs, incomplete information often becomes an incomplete—and unfair—story. Such is the case of our July 6 story (since removed) about a land dispute in Rapides Parish. Subsequent to the posting of that story, we have received considerable updated court filings that we were not given for our original story. The most significant of these, in our opinion, is an apparent court agreement between the disputing parties granting the Harrell family complete access to their property with the provision that the Harrells retain a surveyor to provide an accurate legal description of the access road to their property. For reasons known only to the Harrells, the surveyor was never employed.

A second factor concerned the scheduling of the trial “without notification” of the Harrells or their attorney. In fact, we later learned that their Baton Rouge attorney, who has subsequently been suspended by the Louisiana Supreme Court’s disciplinary board for refusing to return another client’s fee, was notified well in advance of the trial date but simply did not show up in court.

We were approached by Mr. Washington and upon his request, we agreed to meet in Opelousas. At that meeting, Mr. Washington provided me with court records he obviously chose to give us, neglecting to provide the full and complete legal records. Those records he provided, which we now know to be the incomplete story, tilted Mr. Washington’s story to his advantage. LouisianaVoice erred in not contacting Mr. Saucier and we erred in casting the judges involved in the court proceedings in a negative light. For this we are deeply sorry. Mr. Saucier, while justifiably upset, has been more than reasonable in his request that we delete the original story and attempt to set the record straight.

The other party to that dispute, Pineville attorney Wilbert Saucier, Jr., wrote the following response which we provide here in full. The references Mr. Saucier makes to the KKK were not ours, but were posted as comments to the original story. As requested by Mr. Saucier, the original story has been removed from our archives. We do not dodge our responsibility to our readers and a large part of that responsibility is a willingness to admit our errors.

Tom Aswell, Editor

Here is Mr. Saucier’s response:

 

“LAND GRAB LIE”

Typically, I would ignore such a preposterous article as is the one you have written about me; however, given Mr. Robert Washington’s statement that he wants to hear my “opinion” on this matter, accompanied by the fact that I have been contacted by dozens of people wondering what in the world I had done, I felt it time to set the record straight. It is amazing to me that you and Mr. Washington would so maliciously misrepresent literally EVERY fact and finding involved in the two cases you referenced.

Dealing with the first case, that in which it was established conclusively that the Harrells were engaged in a pattern of disbursing trash in a manner to pollute my property, I would offer the following: the lawsuit, “Erris-Omega Plantation, Inc. vs. Henry Harrell, et al”, Civil Suit Number 99-404, Pineville City Court, Parish of Rapides, State of Louisiana, contains pleadings, evidence and documentation which fully supports my version of events, and destroys the fiction created by Mr. Washington. The truth, something with which you and Mr. Washington are clearly unfamiliar, or just too malicious to acknowledge, is that those Harrells whom were sued were found by overwhelming evidence to have caused damage to my property. The following explains.

In 1994, I acquired the Erris-Omega Plantation, a substantial piece of property which surrounds approximately 61 acres owned by the Harrell Family. Please note: at the time of my acquisition, my property AND the Harrell’s property were already gated and substantially fenced. Various gates were then relocated on my property, with a series of locks installed. Further, my gates were not the only ones through which the Harrells had to pass in order to access their property. The owners of the Harrell property were furnished keys to every gate allowing them complete and unfettered access to their property at no charge, with instructions to simply keep the gates closed and locked upon their ingress and egress. Mr. Washington and you fail to mention those factors.

The 61 acre Harrell property is bordered on Caney Bayou which flows through the Erris-Omega property for several miles. It became noticeable after every rain when the water in Caney Bayou rose, a new deposit of garbage and trash came onto the Erris-Omega property, coming directly from the Harrell property, where a garbage dump was maintained on the bank of Caney Bayou. I retained the services of attorneys Howard Gist, III and George Gaiennie to represent me in this matter. We brought suit against the heirs of Simon and Clara Harrell (19 heirs were named in the suit). This suit was first filed by my attorney in the 9th Judicial District Court, but when it was assigned to Judge Johnson’s division, my attorneys consulted with me about the then existing backlog in his docket and the amount of time it would have taken to adjudicate the issues. Based on their recommendation, the suit was dismissed from district court and re-filed in the Pineville City Court, a court of limited jurisdiction, i.e., a maximum of $15,000, at that time. I knew that I could have received more damages in district court, including from Judge Johnson, but I needed injunctive relief quickly to stop the Harrells from continuing to damage my property. A city court has a much quicker trial docket, and since the property was in Pineville, I was required to use Pineville City Court, in lieu of the Alexandria City Court.

After numerous depositions taken by the attorney for the Harrell family, this matter was scheduled for trial and was tried for 2 days, May 4, 2000, and June 7, 2000. During this trial, my attorney put on testimony from eleven (11) witnesses, seven (7) of which were eyewitnesses to the garbage/trash dump being maintained on the Harrrell property by the Harrell’s. Let me repeat that, seven (7) EYEWITNESSES to the dump! There was eyewitness testimony that Oscar K. Harrell, one of the owners, was conducting a garbage dump on the Harrell property and was seen hauling garbage in on an almost daily basis. There was eyewitness testimony from independent witnesses, a local farmer, and also a timber consultant/contractor who was on the property for a timber survey and harvesting of the Harrells timber. The timber consultant/contractor testified that, from February 1999 to April 1999, there was a significant build-up of garbage on the Harrell property, part of which was SEEN BY THEM and the other eyewitnesses to be transported onto the Erris-Omega property after each and every rain, by way of Caney Bayou. Notably, there was testimony from Mr. Henry Harrell, one of the owners, who ADMITTED to engaging in a clean up operation of the garbage dump on the Harrell property after the lawsuit was filed, with the help and assistance of other family members and friends. Please realize, THIS IS THE GARBAGE DUMP THAT MR. WASHINGTON SAYS NEVER EXISTED.

After the conclusion of the trial and submission of all of the evidence, including photographs, the proof was overwhelming and judgment was rendered in favor of Erris-Omega Plantation for damages in the amount of $15,000, plus costs of court, which included the costs of an expert witness. Importantly, this Judgment also included an injunction against the Harrell heirs: prohibiting them from trespassing on the Erris-Omega property (it had been a problem); enjoining them from depositing trash onto the Erris-Omega property, or onto their 61.67 acres in such a manner that it would migrate onto the Erris-Omega property; and enjoining them from harvesting deer or other wildlife from the Erris-Omega property, including along the levee and roadways located on and owned by Erris-Omega (again, it had been a problem). This Judgment specifically reserved the issue of access to the Harrell property, did not adjudicate same, and reserved all rights of the parties involved as it pertained to access issues. This Judgment can be found in the original suit record, and the detailed testimony of the witnesses is of record.

ANY judge, including Judge Donald Johnson, hearing the evidence of this case would have ruled the same as Judge Phillip Terrell ruled. Notably, any judge who, faced with the overwhelming evidence presented in this case, might have ruled differently, would have been summarily reversed by the 3rd Circuit Court of Appeal! It is important to note that, despite the complaints of Mr. Washington of the injustice and impropriety of the judgment, the Harrells decided to pay the damages rather than appeal the case to the 3rd Circuit Court of Appeal. If it was such a travesty, surely they would have had it reversed on appeal, right? Of course not! They were doing wrong, they got caught, they knew it, and they paid the judgment, rather than take what they and their lawyer knew would be a losing appeal. Then, in typical “we’re above the law” fashion that they seem to exhibit, the Harrells attempted to have the ENTIRETY of the Judgment dismissed by paying just the money portion. Remember, the judgment had an injunction against the Harrells to stop the bad acts, so the whole judgment should not have been cancelled. They filed a suit in district court (Civil Suit No. 202628) which was, as Mr. Washington noted, assigned to Judge Johnson. Please feel free to look at the judgment in that suit, because Judge Johnson ruled, as he should have, in MY FAVOR, holding that the cancellation of the judgment was to be a PARTIAL cancellation, only of the money portion, as opposed to the total cancellation which the Harrells sought. That ruling by Judge Johnson was inherently correct, and Mr. Washington’s assertion that Judge Johnson thought there was something untoward about the judgment is, as most of his outrageous assertions, incorrect, preposterous, and malicious. You may be interested to know that the judgment, with its injunctive relief, remains in full force, even today. The cancellation is related only to the money portion. (See: 9th Judicial District Court, Clerk of Court’s Mortgage records, document number 1144725, Mortgage Book 1660, page 0032).

The next case is civil suit number 222,091 filed with the 9th Judicial District Court entitled “Succession of Simon Harrell and Succession of Clara Harrell versus Erris-Omega Plantation, Inc. and Wilbert J. Saucier, Jr. filed in 2005.” IN THIS CASE, THE HARRELL FAMILY FILED SUIT AGAINST ME (just opposite of what you reported). Once again, the records will show that, for years prior to Erris-Omega purchasing the surrounding property, the Harrell’s had to pass through locked gates to get to their property. When I purchased the property in 1994, the locations of the gates were changed and the Harrell’s were given keys to all gates I installed at no charge, they were simply instructed to close and lock my gates on ingress and egress. ALL FENCE AND GATES CONSTRUCTED BY ME WERE BUILT ON THE ERRIS-OMEGA PROPERTY AND NOT ON THE HARRELL PROPERTY. AT NO TIME WERE THE HARRELL’S EVER LOCKED OUT OR FENCED OUT OF THEIR PROPERTY AND AT NO TIME HAD THE HARRELL’S EVER OBTAINED A RIGHT OF WAY ACROSS MY PROPERTY, or any of the other private property they crossed. On September 15, 2005, the Harrell’s chose to file this civil suit against me claiming that they had a right of way and saying that they also wanted injunctions which would make me keep my gates open and essentially asking that the fences on my property which belong to me be taken down. After the suit was answered, the matter proceeded on to trial and in Pre-Trial discussion it was made clear to the Harrell’s and to their attorney, Mr. Gerard Torry, that the Harrell’s had absolutely no right to request that my gates and fence be taken down or left open, leaving essentially the only issue of whether or not the Harrell’s should be granted a right of way across my property. The court record will reflect that I willingly entered into a Stipulation where I agreed to voluntarily grant a right of way to the Harrell’s in the form of a perpetual servitude across my property to theirs, once same was identified by survey as to the exact boundaries that it would cover. The Harrell’s stipulated that they would contract for and pay for the survey. The amount they were to pay for the right of way (which they did not have before and which is done in virtually all servitudes) was to be determined by the court at a later time. (ALL IN ACCORDANCE WITH THE APPLICABLE LOUISIANA LAW). The Harrell’s through their attorney, Gerard Torry of Baton Rouge, entered into this Stipulation in open court, agreeing to be bound by the agreement. This Stipulation would have ended the matter at that time and would have granted to the Harrell’s perpetual access to their property, with only the court determination of the compensation remaining.

The Harrell’s, when presented with the written documents establishing the right of way agreement, changed their minds and refused to follow through with their agreement which had been stipulated to in open court. At this point, the matter proceeded on to trial. (REMEMBER IT WAS THE HARRELL’S WHO FILED THIS SUIT AND THE HARRELL’S WHO REFUSED TO HONOR THE AGREEMENT WHICH WAS STIPULATED TO IN THE RECORD!) A trial date was selected by the court and on the eve of the trial, Mr. Gerard Torry filed an Ex Parte Motion for Continuance. (THERE IS NO PROVISION IN LOUISIANA LAW WHICH ALLOWS AN ATTORNEY TO FILE AND JUST ASSUME THAT HIS EX PARTE CONTINUANCE WILL BE GRANTED. MOTIONS FOR CONTINUANCES HAVE TO BE TRIED CONTRADICTORILY WITH BOTH SIDES BEING HEARD, THEN THE COURT DECIDES WHETHER A CONTINUANCE IS GRANTED OR DENIED.) Mr. Torry then failed and refused to appear in court either for the continuance argument or for trial. Not only did Mr. Torry refuse to appear, but the entire Harrell family refused to appear. This matter proceeded to trial as scheduled and the action brought by the Harrell’s was dismissed, with prejudice (for all time). The court records show that not only was Attorney Torry notified of the trial date, but he moved to continue the trial and it was by his own actions of not following up and arguing his position for continuance that caused the dismissal. This matter has been appealed by the Harrell’s to the 3rd Circuit Court of Appeal and to the Louisiana Supreme Court, both of which ruled in accord with law that the Harrell’s were wrong, and the Judgment is now final. To suggest that I am in cahoots with either the District Court Judge, the Court of Appeal, or the Supreme Court, is utterly ridiculous, but seems to be your thought process and that of Mr. Robert Washington. Your article talks about a “Federal Land and Conveyance Law Reform Act”, which you say went into effect December 1, 2009 and you provide a link to the law which, unlike most of your readers, I accessed. You suggested that this law implicated Judge Randow and me as conspiring on the timing of the judgment. The law you refer to regarding servitudes is a law established in the country of IRELAND! Do you honestly think that Ireland’s law is applicable in Rapides Parish? Further, do you think that I’m in collusion with Judges all the way to the Supreme Court based on Irish law. You sir, apparently have not checked any of the facts. I would at this time request that you disclose the source of your information upon which you relied in printing this libelous blog which you have served to spread all over the state. To write that the Harrell’s enjoyed an unrestricted right of way for some 80 years is preposterous. There were always gates and fences, JUST AS THE HARRELL’S HAVE ON THEIR PROPERTY!

Since the rendition of the previous judgment and the denial of supervisory writs by the Louisiana Supreme court which makes the judgment final, Robert Washington, the man you identified as being the spokesman for the Harrell family, personally filed a claim in April of this year saying that by virtue of Article 742 he and his family were entitled to a servitude of right of way. This claim has been summarily dismissed as it has already been fully litigated between the parties. I might add, it was litigated after being raised by the Harrell’s themselves, who refused to accept the stipulated right of way and then refused to appear in court on the trial of their own suit. The Harrell’s have no quarrel here with the legal system. If they feel that they have been misrepresented in any fashion, they need to look elsewhere than the judges and me. The Harrells through their own arrogance have defiantly and proverbially “cut off their noses to spite their faces” and instead of living up to their agreement in the stipulation, they chose to ignore the facts and the law, resulting in a loss of their rights. The Harrell family still owns its 61.67 acres, and neither I nor Erris-Omega Plantation have obtained any rights to this property. TO REFER TO THIS MATTER AS A “LAND GRAB” AS YOU HAVE IS AN OUTRIGHT LIE. I have never set foot on the Harrell property. The Harrell’s still have all of the rights that pertain to any landowner as it concerns their 61.67 acres; however, by their own actions, they have precluded themselves from entering onto Erris-Omega property (MY PROPERTY). Further, for Mr. Washington now to make scandalous allegations comparing me and the attorneys who represented me and the Judges involved in both of these cases as “The KKK” is not only slanderous but now libelous and carries with it consequences. By printing Mr. Robert Washington’s assertions that Judge Phillip Terrell or Judge Harry Randow or I did anything wrong or illegal or that any of us are associated with the KKK (I ASSUME HE MEANS THE KU KLUX KLAN) simply illustrates this man’s own bigotry and racism. You, Mr. Robert Washington, and all that have continued to further this ridiculous lying version of these two cases, owe Judge Randow and Judge Phillip Terrell an apology. You, Mr. Aswell, also owe all of us not only an apology, but the obligation of publishing this response and sending it to every link that picked up your “Land Grab” article. Additionally, once we have been given equal internet/air time, you should immediately take the entirety of the matter off of your blog site.

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