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Jindal administration’s ugly double standard in dealing with sexual harassment complaints—even within the same agency

Posted in ATC, Courts, Ethics, Governor's Office, Judges, Public Records on February 11, 2013| 25 Comments »

The administration of Gov. Bobby Jindal apparently has a double standard in the manner in which it handles complaints of sexual harassment against appointees.

When Kelli Suire accused her former boss, commissioner of the Louisiana Office of Alcohol and Tobacco Control Murphy J. Painter, of sexual harassment, it mattered little to Jindal and then-Chief of Staff Stephen Waguespack that she had already recanted those allegations. Painter was immediately called to the governor’s office and summarily fired from his job.

But when Painter’s successor, Troy Hebert, was accused of sexual harassment—and other transgressions—by an ATC agent nearly two years ago, it was the agent, Randall Kling, who was fired and the Jindal administration then threw its financial and legal resources behind defending Hebert, who remains employed.

But Kling may yet have the last word in what has now turned into a legal battle between him and the Department of Revenue, the agency under whose budget ATC is funded, but now the issue is retaliation against his right of free speech.

The First Circuit Court of Appeal on Jan. 25 overturned a lower court decision which found no right of action by Kling and which dismissed his lawsuit with prejudice.

Kling and other ATC employees initially submitted a complaint to former Revenue Secretary Cynthia Bridges about what they considered to be offensive behavior on the part of Hebert on March 10, 2011. Then on March 16, 22 and 25, Kling submitted additional complaints to Dee Everett, director of human resources at Revenue.

Among his complaints were claims of threats, hostile work environment, systematic intimidation and discrimination, favoritism, humiliation, harassment, inefficiency and morale problems at ATC.

On March 30, 2011, Kling was terminated and on May 26, he filed suit against the Department of Revenue, claiming that he had been fired in retaliation for his complaints regarding Hebert and his department.

The department filed objections of no cause of action, claiming that Kling’s allegations failed to set forth a cause of action for a free speech retaliation claim because his complaints did not involve “matters of public concern,” but rather were merely the complaints of an employee against his superior that were not entitled to constitutional protection.

Kling subsequently filed an amended petition in which he set forth 24 alleged violations of agency policy, procedure and law, including allegations that Hebert:

• Compromised the Civil Service Performance Planning and Review System;

• Operated the ATC in total disregard of State Civil Service rules;

• Used state resources for personal and political gain and in furtherance of his plan to seek elective office;

• Attempted to undermine ethics laws by attempting to form a non-profit entity whereby funding could be solicited and received from the alcohol industry which is regulated by ATC, and boasting that the alcohol industry would gladly donate funds to furnish his proposed new office suite at ATC;

• Schemed to build himself a new office in such a manner as to avoid legislative and Division of Administration oversight;

• Harassed employees who cooperated with the investigations conducted by the Office of Inspector General and the Louisiana State Police concerning the conduct of former commissioner Painter;

• Repeatedly violated sensitive computer policies (a charge for which Painter was indicted and is scheduled to stand trial on April 22), which violations had the potential to jeopardize sensitive law enforcement initiatives and compromised the safety of ATC agents;

• Was guilty of misconduct that threatened the ability of ATC to properly perform its duties;

• Subjected ATC employees to sexual harassment, gender discrimination, humiliation and systematic employment practices that placed ATC agents in potential danger, and

• Was responsible for a mass exit of qualified and experienced ATC agents.

The state, choosing to eschew the attorney general’s office in defending Hebert, instead contracted with outside counsel E. Wade Shows who promptly argued that Kling was attempting to assert a claim for retaliatory discharge due to complaints that were not made by him individually, but by at least 11 other employees of ATC.

It might appear somewhat unusual to argue that a single employee had no cause of action—because his claims were based on the complaints of 11 co-workers—since that argument would seem to acknowledge that agency problems were not confined to a single employee but instead were experienced by several others as well and that problems were agency-wide in nature.

Shows also argued that Kling’s amended petition failed to state a viable cause of action as the complaints he made were simply that of an “unhappy employee” and not a “matter of public concern,” and therefore not constitutionally protected.

Apparently the trial court judge, A. William Morvant, agreed.

Morvant, at oral arguments held on Jan. 23, 2012, refused to allow Kling’s attorney to argue on the basis that the opposition brief was untimely and also refused to allow Kling to testify on the exception of no right of action, although he did allow Kling’s testimony to be proffered (offered into evidence).

Morvant subsequently ruled that Kling’s petition did not set forth a cause of action for retaliatory discharge because none of the allegations rose to the level of public concern, but were merely workplace criticisms by Kling in his role as an employee and not as a concerned citizen (see: Kelli Suire’s complaint against Painter for the contrast in the manner in which similar complaints are handled by the governor’s office—LouisianaVoice, Feb. 6 post https://louisianavoice.com/2013/02/06/emerging-claims-lawsuits-could-transform-murphy-painter-from-predator-to-all-too-familiar-victim-of-jindal-reprisals/).

Morvant signed his judgment a year ago, on Feb. 1, 2012, sustaining the exception of no right of action, thereby dismissing Kling’s lawsuit with prejudice (meaning final judgment as opposed to without prejudice which means the matter may be revisited).

Kling appealed and the First Circuit ultimately disagreed with Morvant—and Shows—and reversed Morvant’s ruling late last month.

The First Circuit, which appeared to offer a lesson in law to Morvant, said, “…In order to have an interest in asserting a retaliatory discharge claim, Mr. Kling does not have to be a direct recipient of the conduct complained of…”

“Mr. Kling claims that he was terminated from his position in retaliation for the exercise of his constitutionally protected right of free speech. His interest in prosecuting this lawsuit is not as a victim of harassment or discrimination, but as an employee who was fired in retaliation for complaining about Mr. Hebert’s conduct,” the appellate court ruling says.

“Thus, the fact that he may not individually have been a victim of some of the complaints in the amended petition, such as gender discrimination, is of no moment in determining whether he has a right of action to assert a retaliatory discharge claim.

“We find that (ATC) failed to meet its burden of establishing that Mr. Kling had no interest in prosecuting this retaliation claim….Therefore, we find that the trial court committed legal error in granting the exception of no right of action.”

The ruling then went on to address a little something contained in the First Amendment—the right of free speech:

“Article I, Section 7 (of the U.S. Constitution), on which Mr. Kling’s lawsuit is based, gives Louisiana citizens the right to speak, write, and publish their sentiments on any subject. It is well settled that an employee of a public entity may not be discharged for exercising his constitutionally protected right to freedom of expression despite his at-will status.

“The law has recognized that there are some types of speech, which by their very nature, address matters of public concern,” the ruling continued. “For instance, the disclosure of misbehavior by public officials is a matter of public concern and is therefore entitled to constitutional protection.

“These allegations of unethical and perhaps illegal conduct on Mr. Hebert’s part clearly are matters of public concern.

“We find that Mr. Kling’s petition does set forth a cause of action for retaliatory discharge and reverse the trial court’s judgment sustaining the exception of no cause of action and dismissing this lawsuit with prejudice.

“The judgment sustaining the peremptory exception raising the objection of no cause of action is also hereby reversed.

“This matter is remanded to the trial court for proceedings consistent with this opinion,” the ruling said, adding that all costs of the appeal were assessed against the Department of Revenue.

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Emerging claims, lawsuits could transform Murphy Painter from predator to all-too-familiar victim of Jindal reprisals

Posted in ATC, Campaign Contributions, Computers, Ethics, Governor's Office, Politicians, Teague, Uncategorized on February 6, 2013| 39 Comments »

What at first appeared to be a slam-dunk sexual harassment case against former commissioner of the Louisiana Office of Alcohol and Tobacco Control (ATC) Murphy J. Painter is beginning to look more and more like reprisals on the part of Gov. Bobby Jindal because of Painter’s refusal to acquiesce to administration demands involving several major Jindal campaign contributors.

It wouldn’t be the first time Jindal has fired a subordinate or demoted a legislator because he or she had the temerity to disagree with him, of course. But it would be the first time such tactics were employed in conjunction with criminal charges.

Painter was indicted—somewhat belatedly—on 42 separate counts of computer fraud in connection with his conducting criminal records, background and driver’s license checks on 35 individuals over a three-year period but never on the sexual harassment claims. Nor was he ever indicted on charges that he stalked or conducted surveillance on individuals—even though that claim was given widespread publicity by State Inspector General Stephen Street on May 28, 2012, the day Painter was formally indicted.

That indictment, coincidentally, came down only days after the legislature voted to strip Street’s office of all appropriations for the current fiscal year. Funding for his office was restored only after Street testified before legislators and repeated details of his office’s investigation of Painter as justification of continued funding, Painter says in his motion to dismiss the charges against him.

Painter’s trial on the federal charges is scheduled to begin on April 22. Meanwhile, he has separate civil suits pending against the state and against the woman who accused him of sexual harassment—after she told an OIG investigator that Painter had never harassed her.

We’ll return to the allegations, denials and counter-accusations in due course, but the real issues swirling around Painter appear to be rooted deep in Louisiana politics and back door deals as only a saga of Louisiana political intrigue and corruption can be told.

It was in late summer of 2010 when a series of events in New Orleans and Baton Rouge—unrelated to sexual harassment, computer fraud or surveillance—would culminate in a meeting in the governor’s office which would end Painter’s 34-year career in law enforcement, 14 of which he served as chief criminal deputy under former Ascension Parish Sheriff Harold Tridico.

After losing the 1995 sheriff’s race to current Sheriff Jeff Wiley by fewer than 700 votes, Painter was appointed ATC commissioner by then-Gov. Mike Foster in February of 1996.

New Orleans Saints owner Tom Benson had purchased the 26-story building once known as Dominion Tower, or CNG Tower, a year earlier in September of 2009. The building is located across the street from the Mercedes-Benz Superdome. As part of the deal struck between Benson and the state to keep the Saints from moving to San Antonio, the Jindal administration agreed to a 20-year lease of some 325,000 square feet of office space at $24 a square foot for various state agencies, some of whom were paying as little as $12 a square foot before being forced to move to Benson Tower.

At the outset, the state’s obligation was about $7.7 million a year, $2.6 million more than the $5.1 million the state was paying before the move.

Included in the Benson Tower purchase was a 60,000-square-foot plot encompassing a one-block section of LaSalle Street and part of what once was the New Orleans Centre shopping mall.

Champions Square opened on Aug. 21, 2010, with the Saints hosting a pre-season game against the Houston Texans. The facility provided a tailgate party atmosphere and gave up to 8,000 Saints fans who did not have tickets a place to hang out and party while cheering on the Saints.

Champions Square soon became the catalyst in the struggle that would erupt between Painter’s office, the governor’s office and Mercedes-Benz Superdome management firm SMG (formerly Spectacor Management Group). On the fringes of this growing dispute were parties who had more than a passing interest: Benson, the Louisiana Stadium and Exposition District (LSED), Anheuser-Busch, brewers of Budweiser Beer, and local Anheuser-Busch distributor Southern Eagle Sales & Service.

LSED is a state political subdivision created to oversee operations of the Superdome, the John A. Alario Sr. Event Center, the New Orleans Arena, the Saints training facility, TPC Louisiana, and Zephyr Field, home of the Triple-A baseball team.

Benson, the seven LSED members (each of whom is appointed by the governor) and their families, businesses and business associates, SMG and Southern Eagle combined to contribute more than $203,000 to Jindal campaigns between 2003 and 2012.

In a lawsuit filed against Jindal, the State of Louisiana, the Department of Revenue and Taxation, its former secretary, Cynthia Bridges and Inspector General Street, Painter says that in May of 2010, some three months before Champions Square was officially opened, he met with representatives of SMG and its lobbyist about SMG’s request for a license to serve alcohol in Champions Square on Saints game days.

Budweiser and Southern Eagle stood to be the big winners if the license application was approved.

Painter says in his lawsuit that he informed SMG of several regulatory violations in its proposal and offered suggestions on bringing the proposal into compliance with state laws. SMG’s subsequent license proposal, however, failed to address a number of the problems Painter had outlined in their previous meeting.

When Painter rejected the proposal, SMG arranged a meeting between Painter and SMG attorney, Robert Walmsley, Jr., Painter says in his petition.

Walmsley is a member of the law firm Fishman, Haygood, Phelps, Walmsley, Willis & Swanson of New Orleans which also contributed $5,000 to Jindal’s campaign in October of 2008.

Walmsley, after meeting with Painter, agreed to provide “a written legal opinion to the ATC documenting how SMG’s proposal complied with, or was otherwise exempt from, Louisiana law,” the petition says.

That promised opinion was never provided to ATC, Painter or his counsel, according to the suit.

Within a matter of weeks, Painter was contacted by Jindal executive Counsel Stephen Waguespack, nephew of Ascension Parish Sheriff Wiley. Waguespack asked Painter to cooperate with SMG and to stop using ATC’s legal counsel to address concerns with the Champions Square project being pushed by SMG, Painter says in his petition.

Subsequent to that call, Walmsley sent Painter an email in which he outlined a purported rationale that would allow SMG to qualify for the sought after license but the email, Painter says, did not include Walmsley’s promised written legal opinion. The ATC legal counsel again advised that the SMG proposal did not satisfy legal requirements.

Painter advised Walmsley that the license would not be issued because SMG did not qualify for the proposed exception as had been suggested. Painter also advised SMG “that alternative legal means would be utilized to address any issues related to the forthcoming grand opening of Champions Square if a resolution was not reached,” according to the lawsuit.

Then, on Aug. 11, Waguespack again called Painter and advised that he, as executive counsel for the governor’s office, “saw no problem with issuing the requested license to SMG,” whereupon Painter said he would defer to Waguespack—if Waguespack was willing to issue a legal opinion in writing to the ATC as representing the governor’s position.

“The governor’s executive counsel refused and suggested that issuing such an opinion was not a good use of his time and/or position,” Painter says, adding that he understood from that conversation that he “was being ordered to issue the license requested by SMG in direct contravention of law.”

In more than 15 years as ATC commissioner, Painter said he had never received such a call from the governor’s office.

Painter and ATC again refused to issue the requested license and two days later, on Aug. 13, Painter was summoned to the governor’s office on the fourth floor of the State Capitol where he met with Waguespack, Louisiana State Police Superintendent Mike Edmonson and another member of the governor’s legal staff.

Painter was advised that an unidentified law enforcement agency (later identified as OIG) was investigating him for alleged criminal violations, specifically sexual harassment, and that Jindal was asking for his resignation.

Painter said he asked if Jindal was asking for his resignation because it was his prerogative to do so or because of the criminal investigation and when informed it was because of the investigation, he refused to resign and was fired.

Despite, the manner in which his dismissal came about, it was subsequently reported to the media that he had resigned.

In what Painter described as another means of garnering publicity, an OIG investigator obtained a search warrant to search Painter’s office at ATC even though a previous investigation by the Department of Revenue had already cleared Painter of any wrongdoing.

The administration, through OIG, zeroed in on the sexual harassment charges for Painter’s former administrative assistant Kelli Suire. Suire did contact local news media in July of 2010 with claims of sexual harassment by Painter and on Aug. 6, an email purportedly sent from lindseyjarrrell@rocketmail.com to several media outlets outlined several complaints about Painter and ATC, including the alleged sexual harassment of Suire and that Painter stalked Suire by going to her home on several occasions. The email, Painter learned from his own investigation, originated from the Louisiana State Library near the State Capitol.

Painter also claims that Suire and ATC Deputy Commissioner Brant Thompson were cooperating with each other in efforts to undermine Painter’s authority.

Painter says he took his concerns to Thompson’s father, State Sen. Francis Thompson (D-Delhi) on Aug. 12 and the elder Thompson offered assurances that his son would cooperate with Painter in the future.

Painter then asked that Brant Thompson report to his office no later than Monday, Aug. 16, “to discuss his conduct and accept a suspension from his job duties.”

That meeting never occurred because Painter was fired the following day and Brant Thompson was appointed interim commissioner until the appointment of current commissioner Troy Hebert.

Almost a year before Painter’s dismissal, on October 16, 2009, Suire resigned her position at ATC. But three days later, on Oct. 19, Painter, on ATC business in Washington, D.C., received a call from his office informing him that Suire had been in his office for several hours that morning copying files, Painter says in a separate defamation lawsuit against Suire.

That suit was filed in 23rd Judicial District Court in Ascension Parish while his lawsuit against the state for wrongful firing was filed in 19th JDC in Baton Rouge. And while considerable coverage was given his firing and the subsequent charges of sexual harassment, minimal coverage has been given his lawsuits by Baton Rouge area media outlets.

Sometime following his Aug. 13 firing in 2010, Painter learned of a letter dated 11 days earlier, on Aug. 2, to LDR Deputy secretary Earl Millet, Jr. from Barry Kelly, assistant director of Revenue’s Criminal Investigations Division in which Kelly gave the results of his investigation of six accusations against Painter, including sexual harassment and stalking of Suire.

In that letter, Kelly said, an attorney was hired to conduct an investigation into the allegations and when questioned, “Ms. Suire admitted that there was no sexual harassment.”

Prior to that Aug. 2 letter, on March 29, the Department of revenue sent a letter to Suire reporting its findings. That letter said, in part, “The investigator met with yourself, Painter and other ATC employees. Based upon the information gathered during the investigation, LDR has determined Painter’s actions did not violate the LDR’s Anti-Harassment Policy…

“The finding is based upon information secured during your interview wherein you indicated Painter did not make unwelcome sexual advances toward you. You also indicated Painter did not request sexual favors or engage in verbal or physical conduct of a sexual nature to you. Additionally, you also stated that your complaint against Painter was not one of sexual harassment.”

Despite that admission, the governor’s office, through OIG, proceeded with its investigation, accusing Painter of accessing the criminal records database 314 times in more than five years between February 25, 2005, and Aug. 13, 2010. Subsequent information obtained by Painter through legal discovery revealed that OIG received 1,063 complaints between June 20, 2009 and June 15, 2011 and determined that not all the complaints constituted a need for a law enforcement data base check.

Yet, during that same two-year period, three OIG investigators combined to access the criminal records database nearly 3,000 times—one of those more than 2,100 times.

Painter’s trial in federal district court in Baton Rouge on the computer fraud charges is scheduled for April 22.

And yet, despite the charges alluded to by Waguespack when he fired Painter, he has never been formally charged with sexual harassment, stalking or surveillance.

And charges of accessing the criminal records data bank 314 times over a period of more than five years—approximately five times per month—to most people would not appear excessive for the head of a law enforcement agency whose job it is to track criminal activity.

…Unless someone was looking for a reason to fire an uncooperative subordinate standing in the way of political expedience and opportunity—and inconveniencing campaign contributors.

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ATC’s Troy Hebert throws subordinates under the bus to deflect from his own inadequacies, inept mismanagement

Posted in ATC, Ethics, Governor's Office, Legislature, Legislators, State Agencies on December 20, 2012| 8 Comments »

Office of Alcohol and Tobacco Control (ATC) Director Troy Hebert, one of those former legislators to whom Piyush Jindal appointed to a six-figure state job, made a big production this week of his so-called “audit” of personal use of state cell phones by agents working under him.

Hebert, of Jeanerette, resigned from the State Senate in November of 2010 to accept the appointment as ATC director at $107,000 per year and has conducted a reign of terror in the ensuing two years.

While Hebert claims that only a half-dozen or so employees have left his agency, a survey by LouisianaVoice learned that the number was closer to 50. Some of those were fired only days after being hired by Hebert while others quit out of disgust.

Hebert obviously considers his status in more grandiose terms than most elected officials, much less appointed department heads, though there are rumors floating around that he considers himself as a potential candidate for governor.

Though he is merely a mid-level department head, he nevertheless requires his employees to stand when he enters a room and to address him with a cheery, “Good morning, Commissioner.”

Such courtesy is normally extended only to heads of state, not obscure state bureaucratic appointees.

This is the same guy who expresses such indignation at his employees’ use of state cell phones for personal calls who thought nothing of blowing a couple of thousand on low-profile, 22-inch rims for his state vehicle.

This is the same guy who, though he has zero training as a law enforcement official, demanded—and got—emergency lights installed on his state vehicle so he could play cop.

This is the guy who suspended an employee after her physician refused to provide weekly status reports despite the physician’s prior written certification that she was physically unable to work.

This is the same administrator who more than once transferred an employee from one end of the state to the other with as little as two days’ notice.

This is the same agency head who directed an agent to return to uniform status and to re-enter a New Orleans bar for inspections—after that same agent had purchased drugs during an undercover investigation in that same establishment—a directive that might well have served as the agent’s death sentence had things gone badly.

And this is the same guy who made a big production a few months back over a $10,000 expenditure to purchase and train a “synthetic drug-sniffing canine.”

“ATC Commissioner Troy Hebert says (the) new canine will be a great asset when it comes to detecting synthetic marijuana,” the news release said. ‘“It’s a very, very dangerous substance,’ said Hebert. ‘We think this new addition’s going to help us with some of that.’”

The only problem is, the “certificate of certification” from the National Police Canine Association in Waddell, Arizona, dated Nov. 2, certifies the new dog only for marijuana and cocaine, not synthetic drugs.

There’s a reason for that: synthetic marijuana is virtually impossible to detect reliably because the chemical ingredients of synthetic drugs is constantly changing, meaning there is no reliably consistent pattern for animals to learn.

LouisianaVoice earlier reported his propensity to fire employees with little or no reason and that he has settled a couple of discrimination lawsuits brought by former employees.

Hebert fits right into the Piyush Jindal mold of arrogance that permeates this entire administration, from cabinet members who refuse to divulge the identities of contract winners to administrators who refuse to provide reports to legislative committees to the governor himself, who ignores requests for information.

But back to those state cell phones.

ATC agents are often away from home for stretches of 12 hours or longer and upon their hiring, Hebert informs agents that as long as they handle ATC business, they may use their state phones for personal calls.

There you have it. It’s policy.

And now Hebert is trying to come off as a diligent agency head hell bent on keeping recalcitrant employees in line. This from a guy who consistently disregards civil service rules and regulations and gets himself backed into EEO corners that cost the state thousands upon thousands of dollars in payments to former employees and legal fees.

You do not tell your employees it’s permissible to use state cell phones for personal calls and then throw them under the bus for purposes of painting yourself as the noble guardian of the public trust—especially when your own motives are called into question.

The bottom line appears to be that he is setting up a few agents to persecute through a complicit news media at Press Release Central who simply takes press handouts and runs them with no questions asked.

There can be only one explanation for such action: he hopes to deflect criticism of his own administrative actions and misdeeds by tagging his subordinates with perceived wrongdoing.

To that end, he fits right in with this administration.

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