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Archive for January, 2019

Another judgment against state official who is allowed to walk as taxpayers pick up $400,000 tab–plus legal costs

Posted in ATC, Corruption, Courts, Ethics, Judges, Lawsuits, Office of Risk Management, State Agencies on January 11, 2019| 1 Comment »

He’s been gone from office for three years now but the legacy of Troy Hebert lives on at the Louisiana Office of Alcohol and Tobacco Control (ATC).

Hebert recently prevailed in a federal lawsuit filed for fired ATC agent Brette Tingle and that decision is currently being appealed.

But another suit  by fired agent Randall Kling, tried in state court resulted in a jury award of nearly $400,000, plus legal interest from May 26, 2011, the date Kling filed his suit in 19th Judicial District Court in Baton Rouge.

That decision, which somehow flew under the radar of all Baton Rouge news media, including LouisianaVoice, was rendered just over a year ago, on December 30, 2017 and like the Tingle decision, is currently under appeal.

Baton Rouge attorney J. Arthur Smith represented both Tingle and Kling in their litigation.

In that action, Kling had claimed that when he made official complaints of what he deemed was offensive behavior on the part of Hebert on March 16, 22, and 25 in 2011, Hebert fired him on March 30.

The jury verdict form revealed that jurors determined by a 9-3 vote that Kling “was engaged in protected speech on a matter of public concern” under the Louisiana Constitution. It then said, by an 11-1 vote, that “His termination was substantially motivated by his protected speech.”

The breakdown of the award was $243,045 in lost wages, $75,000 for mental anguish and distress and another $75,000 for loss of enjoyment of life.

Nineteenth JDC Judge William Morvant, in writing the formal judgment, somehow managed to circumvent the usual 6 percent per annum interest the state pays on judgments and set total interest at $9,538.06.

At 6 percent, interest would normally accrue at a rate of about $24,000 for each year since the suit was filed in May 2011 until final resolution, which is still pending.

If applied as in other judgments against the state, that would mean Kling would be entitled to more than $168,000 to date.

In any case, it will be the taxpayers of the State of Louisiana, and not Hebert, who will be called on to pay the judgment should the verdict be upheld by the First Circuit Court of Appeal and, should it advance that far, the Louisiana Supreme Court.

And that $400,000 doesn’t even include the cost of the state’s having to pay a contract attorney to defend Hebert and the Department of Revenue, costs paid through the Louisiana Office of Risk Management.

It’s another example of state officials, in this case, Troy Hebert, not being held personally accountable for their actions and taxpayers having to pick up the tab for their bad behavior.

Morvant, by the way, is the same judge who only yesterday (January 10, 2019) declined to hold Attorney General Jeff Landry personally liable for refusing to allow an Indiana woman access to what were clearly public records.

Unless some real teeth are put into these judgments, Louisiana’s public officials will go on disregarding the law in the knowledge they will suffer no personal consequences.

This needs to change.

 

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Grandstanding Landry loses public records case, but state taxpayers are the real losers in having to pay his legal fees

Posted in Attorney General, Corruption, Ethics, Judges, Lawsuits, Politicians, Public Records, Transparency on January 10, 2019| 2 Comments »

Until judges begin holding public officials personally liable—and making it hurt—for their continued disregard of Louisiana’s public records law, there’s simply little incentive to get them to change their habit of attempt to conceal information that could prove embarrassing or even incriminating.

Louisiana Attorney General Jeff Landry, who is on record via his own press release, as saying he was committed “to continue diligent enforcement of our Open Meetings Law,” recently attempted to deny access to public records to an Indiana woman on the shaky argument that as a non-citizen of Louisiana, she was not entitled to the records—never mind the fact he had already turned over 6000 pages of records to her and never mind that the state’s open meetings and public records laws go hand in hand to the public’s right to know what public officials are up to.

Apparently, she was starting to make him a bit uncomfortable so he cut her off and she FILED SUIT in an attempt to get the information she sought.

On Thursday, State District Judge William Morvant, thoroughly pissed at both sides over the numerous—and voluminous—filings in connection with an otherwise cut and dried matter, delivered a smack-down to Landry by refusing to dismiss Scarlett Martin’s suit.

Martin is seeking records concerning Landry’s perceived coziness with the oil and bas industry, including his travel, vehicle purchases, speaking fees and contracts, prompting Landry’s public information officer Ruth Wisher to say, “We can only hope it is not a political witch hunt (wonder where she got that term?) distracting from the important work of our office.”

Funny, but the state’s Public Records Act makes no mention of any requirement of state citizenship as a requisite for obtaining records nor does it cite motives, including “political witch hunts” as reasons to deny access to public information. Even funnier that such a lame line of reasoning would be advanced by the office of the state’s attorney general, presumably the premier legal authority to whom public agencies go for counsel.

Melinda Deslatte, In an Associated Press STORY, said Morvant in making his ruling, said he would not impose overly severe penalties on Landry for the lengthy time it took his office to turn over the records requested by Martin.

Instead, he said, he would only hit Landry’s office with attorney’s fees, fees that Martin’s attorney, Chris Whittington, estimated in the neighborhood of $25,000. And that doesn’t even include the cost of the state’s attorney fees for defending the indefensible.

And there’s the fly in the ointment.

Louisiana Revised Statute 44:35(E)(1) says the following.

If the court finds that the custodian arbitrarily or capriciously withheld the requested record, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian. It may also award the requester civil penalties not to exceed $100 per day, exclusive of Saturdays, Sundays and legal public holidays, for each such day of such failure to give notification (emphasis mine).

Additionally, LRS 44:35(E)(2) says:

The custodian shall be personally liable for the payment of any such damages and shall be held liable in solido with the public body for the payment of the requester’s attorney’s fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of legal counsel representing the public body in which the office of such custodian is located. In the event the custodian retains private legal counsel for his defense in connection with the request for records, the court may award attorney’s fees to the custodian (emphasis mine).

In this case, Landry was the legal counsel and the custodian of the records. Accordingly, he should have been held personally liable and hit with a penalty of $100 per day—except for the fact that Judge Morvant decided to go easy on him.

The ruling prompted a Lafayette reader to say, “Ironically, this is the same issue (ignoring public records requests) that brought… Lafayette City Marshal (Brian) Pope down. And similar favoritism was shown to Marshal Pope until media pressure was brought to bear on the issue. The judge of record, Judge Jules Edwards, showed considerable favoritism to the marshal as DA Keith Stutes. The elite protect the elite.”

And those attorney fees? Whether Morvant does award $25,000 or something less, rest assured that Landry won’t be paying it. Instead, you, Mr. and Mrs. Louisiana Taxpayer, will be the ones picking up the tab for that Landry’s little misapplication of a law any sixth-grader should be able to understand. You have already paid Landry’s attorneys and now you’ll pay the other side’s, as well.

Landry? He’s not out one red cent.

And until these judges, pissed or not, start holding public officials personally accountable for their blatant disregard of state law, nothing is going to change. The next official who finds public records requests hitting a little too close to home will try the same tactics of delay and deny, knowing that if he is sued and loses, the state’s taxpayers, not him or her, will pay the piper.

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Jeff Landry, the paragon of virtue for public records access, finds himself named as defendant in public records lawsuit

Posted in Attorney General, Corruption, Courts, Ethics, Lawsuits, Public Records on January 4, 2019| 8 Comments »

Mark Twain said, “If you tell the truth, you don’t have to remember anything.”

A variation of that adage might be, “If your intentions are pure, you don’t have to worry about consistency.”

Jeff Landry might want to remember both statements.

But, on the other hand, sometimes it’s good entertainment to watch a politician more concerned with advancing his own career than the interests of his constituents get boxed in by his own words and actions.

Case in point: A self-serving press release from the attorney general on Nov. 19 which addressed a ruling by a state judge which said the Vermilion Parish School Board violated Louisiana’s Open Meeting Law for forcefully removing a teacher who was critical of the superintendent’s pay raise.

“I applaud Judge Smith for remedying this injustice,” Landry pontificated, “and I pledge to continue diligent enforcement of our Open Meetings Law.” (emphasis mine)

Well, Louisiana’s Open Meetings Law and the Public Records Law just happen to go hand in hand, but you’d never know that from the lawsuit pending in State District Court in Baton Rouge scheduled for trial next Thursday.

Landry is a defendant in a LAWSUIT filed by an Indiana woman who is seeking admittedly voluminous records relating to correspondence between Landry’s office and various oil and gas interests in the state as well as records of his travel to conferences, speaking engagements, lodging and meals.

Here is a copy of her request for the records and her lawsuit.

Landry’s public information officer Ruth Wisher said, “We can only hope it is not a political witch hunt distracting from the important work of our office.”

And even though he has already turned over more than 6000 PAGES of documents, the woman, Scarlett Martin of Indianapolis, has sued Landry because she says he has failed to fully comply with her request and that he is holding back additional records.

Now Landry has offered up a rather unique defense by CLAIMING that Louisiana’s public records law applies only to citizens of the gret stet of Looziana.

That doesn’t exactly square with Opinion 17-0044 of last May 18 in which he wrote in an opinion pursuant to a legislator’s request, “The public’s right to public records is a fundamental right guaranteed in the Louisiana Constitution. ‘No person shall be denied the right to observe the deliberations of public bodies and examine public documents…”

(Note there is no mention of any restriction of that right to Louisiana citizens. And also note how he conveniently ties public meetings and public records together in a nice little bow for us.)

In the next paragraph of that opinion, he says, “Any person of the age of majority may inspect, copy, or reproduce, any public record” and “any person may obtain a copy or reproduction of any public record.”

That sounds a tad definitive for a man who is now trying his best to protect certain records from disclosure.

Kinda makes one wonder what he’s trying to hide.

Oh, and in response to Ms. Wisher’s little comment about hoping the request isn’t some kind of “witch hunt” (wonder where she picked that phrase up from?), state law also expressly says, “The purpose for the document request is immaterial, and an agency or record custodian may not inquire as to the reason…”

Moreover, in further addressing Landry’s water-thin residency claim of exception, the Louisiana Supreme Court in Title Research Corp. v. Rausch (450 So.2d933,937 (1984) opined:

The legislature, by the public records statutes, sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. There was no intent on the part of the legislatures to qualify, in any way, the right of access. [Citations omitted]. As with the constitutional provision, the statute should be construed liberally, and any doubt must be resolved in favor of the right of access.

Section 31 provides that any person may obtain a copy or reproduction of any public record, except as otherwise provided. A person over 18 has the right to inspect and copy or get a copy of a public record that is not exempt from examination, and the custodian has the burden of proving that the record is not subject to inspection. The person may apply in person to the custodian of the public body, to inspect, to copy or to reproduce a public record; however, in Elliot v. District Attorney of Baton Rouge, (1995) 664 So.2d. 122, the court opined that a person could make a request by letter. (emphasis mine)

Mr. Landry is going to have a helluva time getting around all that and he just might have to write a pretty big check (state check, of course, not personal) in penalties assessed by the court.

Editor’s Note: A conscientious attempt was made by LouisianaVoice to access that attorney general’s opinion cited in this story. Previously, the attorney general’s web page had a menu that users could use to access opinions on any subject. That menu no longer exists.

We did, however find in the Media Room, a menu labeled “More Resources” which provided:

A biography  of Jeff Landry;

An introduction to Jeff Landry;

A portrait of Jeff Landry;

A candid portrait of Jeff Landry;

A capitol photo of Jeff Landry;

Another capitol photo of Jeff Landry.

I’m certain he gladly provide those for Ms. Martin.

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