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Remarks by former head of State Dentistry Board on suit dismissal reopens LouisianaVoice investigation of tactics

Posted in Boards, Contract, Contracts, Corruption, Courts, Ethics, Lawsuits, LSU, Public Records on April 15, 2015| 10 Comments »

A couple of weeks ago, we received a comment from a reader identifying himself only as “The Truth Man” who proceeded to go on a 128-word tirade against another reader who called himself the “Dental Genie” and gloating over the outcome of the lawsuit of Dr. Randall Schaffer against the Louisiana State Dentistry Board.

Normally, it is the policy of LouisianaVoice to protect the identities of those commenting on our stories. We take the position that if they do not wish to divulge their real names, there must be a legitimate reason. Often, that reason is that the writer is a state employee who would fear for his job should his name be revealed.

But when the writer turns out to be the former director of the state board that was being sued by Dr. Randall Schaffer and when that writer attempts to color the results of the legal action in the board’s favor, we take the position that he is waiving his anonymity. He is, after all, a very public figure, retired or not.

Barry Ogden, former director of the Louisiana Board of Dentistry, was referring to Schaffer’s lawsuit against the board after the board turned on him for blowing the whistle on a defective joint replacement device for temporomandibular jaw (TMJ) sufferers by the head of the LSU School of Dentistry’s Oral and Maxillofacial Surgery Department in the mid-1980s. https://louisianavoice.com/2014/03/11/from-protecting-their-own-to-persecution-of-a-whistleblower-its-all-part-of-the-bureaucratic-shuffle-by-state-dental-board/

Schaffer who was a resident at LSU at the time, became aware of the negative effects to patients receiving the implants and when he was named as a witness and consultant in the class action cases that ensued, the Board of Dentistry immediately launched an investigation and ultimately revoked his license to practice dentistry.

Schaffer sued the board and moved to Iowa where he worked as a consultant and expert witness in legal matters involving dental malpractice. His case wound its way slowly through the courts, as legal cases always do, running up tremendous costs in the process. Meanwhile, Schaffer was forced to undergo bypass surgery and the combination of medical problems and legal costs left him with no choice but to allow his case to abandon.

Thus, he did not “lose” his case; it was dismissed because of the aforementioned reasons. “I simply could not afford to keep feeding the (legal) beast,” Schaffer said. “It has cost me more than $100,000 and it broke me.”

Ogden’s misleading and less than gracious rant led to several email exchanges between LouisianaVoice and Ogden. We first reminded him that the dismissal of Dr. Randall Schaffer’s case was not based on the merits of the case, but upon extenuating circumstances—money and health. We also reminded him that there are other lawsuits pending against the board and that state agencies have—and are continuing to—investigate tactics by the board and its contract investigator Camp Morrison, who inexplicably was given free office space in the Dental Board’s suite, paid for by taxpayers.

“Are you going to print my comment or not?” Ogden replied. “You obviously have made up your mind about me. Everything I said is true and public. Is your blog blocking what you don’t want to hear? I hope you will give myself and the other defendants a fair and balanced report after we prevail in court.”

We promised to publish his comment, but in context with the facts of the Schaffer case and Ogden’s 400-page deposition in another pending legal matter (Dr. Ryan Haygood). “The Schaffer case does not end the legal actions against the Louisiana Board of Dentistry,” we wrote, adding that as long as we were now communicating (we couldn’t get a comment from the board in our original story), “please explain how it is that the private investigator (Morrison) who is (or was) under contract to the board had the luxury of having an office in your office suite.”

Rather than answer that question, Ogden wrote back, “I cannot authorize you to publish my comment until I see how you plan to edit it and in what context. Are you on a witch hunt against the board or are you willing to publish non-biased comments? I do not wish for my comments to be changed. However, you may delete the final sentence admonishing you to know your subject before commenting. Further, do you require that I will only have my comments published if I allow you to controvert them with your own commentary?”

Well, yeah, when we feel it appropriate to clarify certain claims we do reserve that right.

We then asked him to please answer a few simply questions, to wit:

  • Why do you send in people posing as patients with the express purpose of setting these dentists up?
  • How is it that many of the dentists penalized with the board just happen to be in competition with board members?
  • How do you justify levying a fine of say, $2,000 and when the dentist refuses, you suddenly hand him a bill for $100,000?
  • How can you justify the board serving as accuser, prosecutor and judge? That makes it impossible for a dentist to receive a fair hearing.
  • When the U.S. Constitution says that everyone accused of wrongdoing is innocent until proven guilty, how is it that a dentist first learns of his “guilt” upon receiving notification of his fine?

We wrote that we had other questions, but unless he could address those satisfactorily, we could see no reason for further discussion. “You answer these and we can talk further,” we said.

“All I was attempting to do in my first comment,” he replied, “was to set the record straight, as I have been fed up with the  lies being said about the board and, in fact, all the horse manure thrown at us by you which you believed from the start… Now you wish me fill in the blanks in your next story which you have probably already written. I see no use in further communication, especially on matters in litigation. You are attempting to take advantage of me knowing I cannot answer your questions.

“Therefore, please do not print any of my comments, and let’s call it a day.”

Sorry, Mr. Ogden. That’s just not the way it works. You opened this dialog with your April 3 email to us in which you taunted us about the dismissal of Dr. Schaffer’s case—without revealing the real reasons for the dismissal—and advising us to keep our mouths shut. You offered your remarks as a comment to our story and even asked if we intended to print it before apparently having a change of heart and asking that it not be printed.

Sorry again, but when you want something to be off the record, you preface it that way—up front. You don’t come back after the fact and ask that your ill-advised remarks not be printed.

Accordingly, here is the original comment by Barry Ogden, retired director of the Louisiana State Board of Dentistry (verbatim, as he requested):

  • For all of you who believe the fairy tale told by the dental genie, please be advised that ALL lawsuits filed on Dr. Shaffer’s behalf have been DISMISSED. I guess now you have to complain that both state and federal judges are as corrupted as the dental board. Further, how can anyone make a legitimate comment without looking at both sides? You can obtain a copy of the decision revoking Dr. Shaffer’s license from the dental board. It’s a public record. You may also look up all the lawsuits he has filed in state court and federal court in New Orleans to get the true picture. You know the old saying it is better to keep your mouth shut if you don’t know what you are talking about.

Next, we will examine how the board attempted to revoke the medical license of a New Orleans surgeon who has never even practiced dentistry using highly questionable investigative methods and employing tactics can only be described as extortion.

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Did AG’s office engage in witness tampering in CNSI civil trial? With this administration, nothing would surprise us

Posted in Attorney General, Contract, Contracts, Corruption, Courts, Crime, DHH, DOA, Ethics, Fraud, Governor's Office, Guest Columnist, Judges, Lawsuits, Transparency on March 30, 2015| 7 Comments »

By Robert Burns (Special to LouisianaVoice)

LouisianaVoice readers may recall a December 15, 2014 post outlining state defense attorneys desperately fighting to block a deposition of Stephen Russo,  Secretary of the State Department of Health and Hospitals (DHH), to be conducted by Lewis Unglesby, lead plaintiff attorney in the Client Network Services Inc. (CNSI) civil lawsuit against the state.  CNSI alleges that Gov. Jindal’s office, in “consultation” with AG Caldwell’s Office, unjustly cancelled its contract to provide Medicaid processing services to DHH after news of a federal grand jury having convened to consider potential improprieties in the awarding of the contract broke.  The federal grand jury probe went nowhere, but Caldwell nevertheless continued a probe with a state grand jury.  Ultimately, that state grand jury indicted former DHH Secretary Bruce Greenstein for nine counts of alleged perjury entailing testimony to that grand jury or statements made at his senate confirmation hearing.

At that December hearing, Judge Kelley ruled that Russo could be deposed and that any attorney-client privilege had clearly been waived.  The AG’s Office filed an immediate appeal writ with the First Circuit (notwithstanding the fact Judge Kelley stated, “There’s nothing to appeal because this matter is clear,”).  The First Circuit upheld Judge Kelley’s ruling and denied the appeal.  During that December hearing, Unglesby stated AG Caldwell’s Office had “quite likely acted illegally” in publicly releasing Greenstein’s grand jury testimony.  A hearing to quash that testimony transpired in Greenstein’s criminal trial on March 20, 2015.

At that hearing, Greenstein criminal defense attorney, John McLindon, argued for protection of the grand jury “body” not only for the Greenstein case but for all future criminal trials.  He stated that denying his motion to quash the grand jury testimony would send a horrible signal that grand jury secrecy was a “sham” in Louisiana.  He also stated that AG Caldwell’s Office essentially engaged in an ex-parte maneuver in that the AG’s motion to file the grand jury transcript into the public record was “buried” at the end of the order.  McLindon also argued that David Caldwell had been deceptive in describing the motion in court on the day it was presented as a “routine procedure” to enable McLindon to obtain a copy of the testimony, which McLindon indicated he was entitled to anyway.  Judge Daniel ruled that the AG’s office acted properly in filing the transcript into the public record, but McLindon indicated he may likely appeal Judge Daniel’s ruling.

Louisiana Voice has now reviewed extensive court filings in the civil case in which CNSI attorneys lodge even more allegations of serious wrongdoing on the part of Caldwell’s Office.  Those allegations entail the testimony of CNSI whistleblower Stephen Smith.

Smith is the CNSI employee who sent an anonymous email to Jeffrey Branch with the Center for Medicare/Medicaid Services (CMS) under the alias of “Kunego.”  The email was sent sometime after a meeting which Smith had with Norm Nichols, President of Molina Medicaid Services, and the company which has managed Louisiana’s Medicaid processing for decades and which filed a protest after CNSI won the contract.  Smith testified that Nichols indicated that, although Molina lost the protest, “there were still things in the process that were questionable.”    Smith has moved on to Orlando, Florida where he serves as Vice President for Sellers Dorsey, LLC, which is a health policy consulting company.

On May 1, 2014, CNSI attorneys conducted a video deposition of Smith in Orlando.  During the deposition, Unglesby presented Smith with a copy of what the AG had supplied as the “Kunego report.”  That report, which was filed under seal soon after CNSI’s lawsuit was initiated, contained notations of AG investigator Scott Bailey’s interview of Smith (but identified as “Kunego”) on May 10th and May 11th of 2012.  Unglesby then asked Smith to take a pen and underline those portions of the interview notes for which he wished to claim were his words and recollections of the interview and to refrain from underlining those items for which he did not wish to assess as having originated from him.  As readers can readily tell from reading the 7-page report, Smith was only willing to claim responsibility for between 50-60% of it as evidenced by what is underlined.  Nevertheless, the report contains some rather intriguing allegations, not the least of which is contained on page five.  On that page, the report states:  “Bobby Jindal has what Kunego calls an India to India ancestor driven background and network of connections that brought CNSI and Jindal together.”

The deposition continued for an extended period, so the parties agreed to recess and reconvene on a later date, which turned out to be July 8, 2014.  Upon reconvening the deposition, Unglesby made an inquiry of Smith regarding whether he’d had any communication with anyone from the AG’s Office.  Smith responded that Scott Bailey, the AG investigator who had interviewed him for the Kunego report, had telephoned him twice and had flown to Orlando to meet with him on June 28, 2014.  Smith indicated that Bailey stated that he needed to clarify the timeframe of the meeting with Nichols and also to inform him that the AG’s office had provided CNSI attorneys with the “wrong version” of the Kunego report.  Smith testified that Bailey informed him that, on May 1, 2014, he’d been provided with the “unedited” Kunego report when he should have been provided with the “edited” report, which is the report the AG’s Office intended to supply to CNSI attorneys.

Smith then explained that the unedited report, which CNSI attorneys provided at the May 1, 2014 deposition, was what had confused him so much because it had statements in the report which he knew he hadn’t made and therefore caused confusion as to how such statements were in a report of an interview of him.  When Unglesby pressed Smith on whether he asked Bailey how such allegations, including that of Jindal’s “India to India ancestor driven background” and that being responsible for bringing CNSI and Jindal together, got in his interview report, Smith indicated that he did not press Bailey for any explanation.

CNSI attorneys, upon learning of these phone conversations between Bailey and Smith, the in-person meeting between the two on June 28, 2014, and the fact that two reports of Smith’s interview responses even exist, prompted strong accusations of witness tampering on the part of AG Caldwell’s Office.  CNSI attorney Michael McKay of the law firm Stone Pigman, in a Motion to Conduct Discovery Regarding Certain Activities of the AG’s Investigator, accuses AG investigator Scott Bailey of “outrageous witness tampering,” and seeks to depose Bailey about his conduct and actions and also have the AG surrender documents, including the “edited” Kunego report, which were shared between Bailey and Smith, along with documents and dates of correspondence between Smith and Nichols.

CNSI attorneys allege that the AG’s Office filed the “unedited” version of the “Kunego report” under seal with the full knowledge that it contained material not attributable to Smith as a means to “influence the public” and to justify a six-month stay being sought by the AG’s Office for all proceedings.  Although the motion to stay was denied (and the First Circuit upheld the denial on June 7, 2013), the AG’s Office filed a motion to limit discovery and a motion for Judge Kelley to recuse himself on the basis Unglesby had previously represented him.  Judge Caldwell denied the recusal motion on July 1, 2013; however, Judge Kelley granted a motion to stay all proceedings on July 30, 2013.  CNSI attorneys asserted that Kelley’s decision was based largely on the “unedited” Kunego report which they contended the AG’s Office knew full well contained material not supplied by Smith and for which the foundation is unknown.  CNSI attorneys also expressed frustration that, as of the date of their filing, August 22, 2014, they still had not been provided with the “edited” Kunego report.

The hearing on CNSI’s motion to depose Bailey was argued before Judge Kelley on October 7, 2014, and he granted the motion.  At a bare minimum, CNSI attorneys have already exposed a high level of ineptitude on the part of AG Caldwell’s Office in that it provided the wrong “version” of the Kunego report given how critical that report is to both the civil and criminal trials.  It is mind boggling that a document that critical wouldn’t be triple checked as being the one the AG’s Office wanted to ensure CNSI attorneys received.  The mere fact they would later have to admit to Smith that “we gave the CNSI attorneys the wrong version” speaks volumes as to the AG Office’s ineptitude.  Of course, as CNSI attorneys argued in their support memorandum, it begs the question as to why two versions of the report even exist at all.

It remains to be seen how successful CNSI’s attorneys may be in exploiting their allegation of witness tampering by the AG’s Office.  Obviously, their ultimate goal is to have Smith’s testimony at trial declared inadmissible based on inconsistency and the actions of AG Caldwell’s Office.  If they succeed, a huge defense to CNSI’s alleged wrongful contract termination may go by the wayside and expose Louisiana taxpayers to a substantial monetary award.  Further, if Smith’s testimony is ruled inadmissible, a spillover benefit to Greenstein’s criminal trial may also arise.

When combined with the recent scathing WWL investigative report on AG Caldwell, one can only question if the biggest beneficiary of all of the extensive focus of the ineptitude and controversies of Gov. Jindal has been AG Caldwell himself.  It certainly appears that for an extended period, he was able to fly below radar on his office’s ineptitude and potential serious wrongdoing.  Perhaps recent revelations of his actions may provide an excellent source of campaign fodder for the October election for Louisiana’s next attorney general.

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Vitter’s problems with women not always sexual but always there; 1993 physical attack on former political foe revisited

Posted in Congress, Courts, Elections, Governor's Office, House, Legislature, PACs, Politicians, Public Records, Senate, Transparency on March 23, 2015| 3 Comments »

My wife received an invitation in the mail Monday (March 23).

It was an invitation to a David Vitter Town Hall Meeting next Monday (March 30) in the East Baton Rouge Parish Council chambers in Baton Rouge at 9:30 a.m.

Needless to say, we are more than a little curious as to why she would get such an invitation from him inasmuch as both she and I are former Republicans now enrolled in RR (Recovering Republicans) and participating in the 12-Step Program.

To be fair, under her name in the address were the words “or current resident,” the implication being that whoever dwells in our house is invited.

Regardless, I’m not entirely certain I want my wife or any of my three daughters in the same room with this man—and not just because of the obvious—the 2007 revelations of Vitter’s association with the former (now deceased) D.C. Madam, Deborah Jeane Palfrey prior to his 2004 election to the U.S. Senate (while he was serving in the U.S. House of Representatives).

Neither is it a claim by former New Orleans Madam Jeanette Maier that Vitter had been a client of hers in the late 1990s.

Nope. It’s the 1993 case of Mary Mercedes Hernandez that sounds alarms and raises red flags for me.

Who is Mary Mercedes Hernandez, you ask?

Fair question. She is a conservative Republican whom Vitter defeated in the race for the District 81seat in the Louisiana House of Representatives in 1991.

In April of 1993, Vitter was one of 16 New Orleans-area House members who voted not to table House Bill 1013 which would have made it illegal for employers or insurers to discriminate based on sexual orientation. There was some feeling that he voted not to kill the bill so that it could be debated on the House floor—and defeated on its merits.

Later that same year, on Sept. 21, Hernandez attended a “town hall meeting” held by Vitter at the American Legion Hall in Metairie. She, along with other constituents, had been invited to attend the meeting by Vitter (we’re seeing a trend here) to “discuss state issues,” she said in a lawsuit she filed against Vitter for physically attacking her at the meeting.

Documents obtained Monday by LouisianaVoice show that Vitter counter-sued Hernandez for harassment, naming prominent state Republican officials as her co-conspirators but that in the end, a judgement was signed in favor of Hernandez and Vitter paid Hernandez a small amount of money to settle her lawsuit in March of 1998, the year before he won a 1999 special election to succeed U.S. Rep. Bob Livingston who resigned following disclosures of his own extra-marital affair. VITTER 1993 ASSAULT CASE

The amount of the final settlement—a mere $50—isn’t nearly as important as what the few pages reveal about Vitter and how he can go on the attack when challenged.

For example, among the documents obtained by LouisianaVoice was a letter written by Vitter two years after the suit was filed, and while it was still moving through the legal system, to Livingston.

The letter, dated April 12, 1995, read:

  • “Thank you very much for your recent letter inviting me to help support the East Jefferson Parish Republic PAC with a significant contribution. I have been an active participant in and supporter of the PAC in the past, and would love to continue that support. However, one matter prevents me from doing so at this time.
  • “Several months ago, a Ms. Mercedes Hernandez slapped me with an utterly frivolous lawsuit which continues to languish in the courts. This is a continuation of a personal vendetta against me on the part of not only Ms. Hernandez, but other persons active in the PAC, specifically including John Treen and Vincent Bruno. Both Messrs. Treen and Bruno were instrumental in encouraging this harassing action. In light of this and in light of these persons’ continued active involvement in the PAC, I will have nothing to do with the PAC’s fundraising efforts.
  • “I can easily tolerate sincere disagreements with people. I can even tolerate serious disagreements which lead to litigation. But I will have nothing to do with people who pervert the judicial system to harass me, carry out a personal vendetta, and directly harm not only me but my wife and child as well.”

John Treen, the older brother of the late Gov. Dave Treen, lost a 1989 special election to the Louisiana House of Representatives to Ku Klux Klansman David Duke and Dave Treen lost to Vitter in that 1999 election to succeed Livingston by a scant 1,812 votes. Bruno was a member of the Republican Party’s State Central Committee and worked in the 1999 Dave Treen congressional campaign.

So, it’s easy to see that bitter feelings were running deep when Hernandez asked Vitter during a question and answer session to explain the intent of House Bill 1013, the so-called “Gay Rights Bill,” had failed by a 71-24 vote in April of that year—with Vitter voting against passage. It might even reasonably be called ambush journalism—but sometimes that’s the only way to get an answer from some of our elected officials (see Bobby Jindal).

In her petition, she said Vitter “became agitated and enraged,” left the podium and advanced toward her in a “threatening manner, pushing aside chairs where were in his path,” and wrenched a portable tape recorder from her grasp, causing injuries to her right hand.

In the classic defense of “My dog doesn’t bite,” “I keep my dog in my yard,” “I don’t own a dog,” Vitter denied that (a) the incident occurred, (b) he had no intent to cause “physical contact or the apprehension of physical contact,” (c) “any contact was incidental,” (d) that Hernandez “sustained no injuries as a result of the alleged events in question,” and (e) Hernandez should be held in comparative negligence and assumption of risk…in mitigation or in reduction of any damages recoverable by the plaintiff…”

And then he filed a reconventional demand, or countersuit, claiming that Hernandez had gained the floor at the “town hall meeting” to “spread false, malicious and damaging information about Mr. Vitter, particularly concerning his voting record with regard to gay rights.”

Hernandez, in her answer to Vitter’s reconventional demand, described herself as a conservative Republican and active as a member of the Jefferson Parish Republican Party. She said she wanted him to explain the “Gay Rights Bill” and his position on the bill because she “had heard that he was a co-author of the bill” by former Rep. Troy Carter (D-Algiers).

(An attempt by LouisianaVoice to determine the names of any co-sponsors of the bill was unsuccessful because the Legislature’s web page which tracks bills in current and past sessions goes back only to 1997.)

She said “after being assaulted and battered” by Vitter “in front of scores of people,” she left the meeting and went to a nearby restaurant where she met a friend, Peggy Childers, who had been seated next to her at the meeting and who had witnessed the encounter.

It was Childers, she said, who suggested that she contact John Treen, “a friend and very prominent and respected member of the Republican Party, for advice. The following day, Sept. 22, she met with John Treen, Ms. Childers, Bruno (then Vice-Chairman of the Jefferson Parish Republican Party), and several others.

The judgment against Vitter was for a pittance ($50, plus judicial interest and costs is certainly that in any legal proceeding), but it did vindicate Hernandez and the entire matter illustrates the mental makeup of the man who wants to be our next governor.

(An earlier post of this story incorrectly said Vitter voted to kill the bill.)

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Bobby Jindal finds another asset to sell: remaining tobacco settlement but Kennedy vows to fight junkie’s need for a fix

Posted in Attorney General, Budget, Courts, DHH, DOA, Education, Finances, Governor's Office, Health Care, Higher Education, Legislature, Legislators, OGB, Office of Group Benefits, Revenue on March 13, 2015| 14 Comments »

There’s blood in the water and the sharks are starting to circle.

To clarify the analogy somewhat, the blood is $750 million in tobacco settlement money and the sharks would be 144 state legislators and the guy masquerading as Louisiana’s governor.

Bobby Jindal, the same guy who as Secretary of the Louisiana Department of Health and Hospitals (DHH) in 1996, opposed the state’s participation in the 46-state litigation against the nation’s four largest tobacco companies, now wants to sell off the remaining portion of the 1998 settlement of that suit to generate $750 million for the state treasury.

That’s the same Bobby Jindal who as DHH secretary, was well aware that the state was spending millions of dollars per year in treatment of indigent patients for tobacco-related illnesses at the state’s charity hospitals, but nevertheless signed affidavits along with his boss, then-Gov. Mike Foster, that argued that Attorney General Richard Ieyoub did not have the authority to sue on behalf of the state and DHH.

That’s also the same Bobby Jindal who as governor in absentia, successfully opposed the lawsuit by the Southeast Louisiana Flood Protection Authority-East (SLFPA-E) against 97 oil and gas companies in an effort to hold them accountable for damages to Louisiana’s coastal wetlands, claiming that SLFPA-E did not have authority to file suit on behalf of the state.

No matter. The tobacco litigation was settled for $365.5 billion in 1998 and the state was in line to receive $4.6 billion, or $141.2 million per year for 25 years and continued payments as long as tobacco products are sold within the state as its share of the settlement. http://kff.org/other/state-indicator/tobacco-settlement-payments/

But in 2001, the state, with the support of State Treasurer John Kennedy, sold 60 percent of its settlement income as a hedge against the possibility of bankruptcy by the tobacco companies. That money was placed in a trust fund that generates revenue for health care, education and the Taylor Opportunity Program for Students (TOPS), the program that provides college scholarships to Louisiana high school students to meet curriculum and grade criteria.

Now, though, Jindal is proposing selling off the remaining 40 percent, a move that Kennedy opposes, saying it represents the same disastrous fiscal policy that is responsible for the current $1.6 billion structural deficit in the state budget.

Commissioner of Administration Kristy Nichols, in her usual condescending manner, said Kennedy does not understand what the administration is trying to do.

“The only way we will consider this is if it creates recurring revenue for TOPS,” she said, adding that the money would not be spent all at one time.

But Nichols and Jindal only have a few months left in office and have no way of guaranteeing how the money will be used and Kennedy is more than a little skeptical of Jindal’s motives. “It’s just another gimmick to generate one-time money,” he said. “It’s just not a good idea to sell the family silver.”

He said the administration does not have the authority to dictate how the money is spent. “That will be the decision of the legislature and with the history of the legislature being what it is, you know they can’t wait to get their hands on this money,” he said.

Kennedy said the proposed sale is much like the manner in which the Office of Group Benefits (OGB) saw its reserve fund reduced from $500 million to only about $100 million and still dwindling.

“The administration reduced premiums for OGB members which on the surface, looked like a great thing for the members.” What the administration didn’t say is that the move also reduced the state’s corresponding obligation to match premiums, thus freeing up money the state would have paid into OGB for helping Jindal patch his budget holes. Meanwhile, because of reduction in income from premiums, OGB found itself paying out about $14 million more in benefits each month than it was taking in, thus creating a continuous drawdown on the reserve fund.

Kennedy said the revenue from the sale of the tobacco settlement cannot be used to plug budget holes because it would have to be used for TOPS and higher education. But by dedicating the money for TOPS, it would allow the administration to take the money it would normally use for those two purposes and redirect it to the state budget.

Kennedy said the administration has taken on all the characteristics of a junkie in search of a fix.

He said Jindal’s chronic use of one-time money to fill budget holes has included selling state property, raiding the Medicaid Trust Fund for the Elderly, indirectly taking funds from the OGB reserve fund. “When you get hooked badly enough, you will sell your shoes for a fix,” Kennedy said. “Any farmer knows it’s a bad idea to sell your seed corn because then you don’t have anything to plant next year’s crop.”

Noting that Moody’s and Standard & Poor’s bond rating agencies have already put Louisiana on negative credit watch, he said the rating agencies will take a dim view of the state’s selloff of the remainder of the tobacco settlement which is currently generating about $50 million a year for the state.

Nichols said the proposal to sell the remaining 40 percent of the settlement would have to be approved by the Tobacco Settlement Financing Corp. Board, the Legislature and the State Bond Commission. The board is scheduled to meet Tuesday at 10:30 a.m. in House Committee Room 1 in the State Capitol.

Approval by the board is expected to be a mere formality since the board members are Jindal appointees.

“My fear is that all $750 million of this money will be spent,” Kennedy said. “Everyone will want a piece of the pie. That will only add to our structural deficit and what will we do next once the money is gone? We’ve got to stop thinking about the next election and begin thinking about the next generation. Don’t hold this fire sale.”

If the board does approve it and it goes before the Legislature, “we are going to do everything we can to oppose the sale,” Kennedy said.

The practice of Bobby Jindal’s selling off everything in sight to raise money is reminiscent of a 2011 comment by former State Sen. Butch Gautreaux (D-Morgan City) who, in criticizing Jindal’s practice of selling state property, suggested acerbically that perhaps the administration should consider selling the 24-story State Capitol building because “it would make a great waterslide.” https://louisianavoice.com/2011/04/29/of-water-slides-and-comparisons-between-2-state-health-plans/

 

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ATC Director Troy Hebert rivals his boss in cold-hearted demeanor: fires agent who is recovering from heart attack

Posted in ATC, Courts, Ethics, Governor's Office, Lawsuits, Teague on March 13, 2015| 9 Comments »

Troy Hebert strikes again. http://www.atc.rev.state.la.us/commissioner.php

The controversial head of the Louisiana Office of Alcohol and Tobacco Control (ATC), who already has racial discrimination lawsuits pending against him after settling similar claims, has fired a veteran ATC agent while the agent was recovering from a heart attack after first having failed to do so while he was on active duty in the Coast Guard Reserve.

Hebert fired agent Brette Tingle of Prairieville by letter dated Feb. 9 which was hand delivered to Tingle’s home where he was convalescing from a heart attack.

Hebert took the action based on accusations of payroll fraud and misuse of federal grant funds after three investigations by two separate state investigative agencies cleared Tingle of any wrongdoing—and after Tingle, who is white, testified on behalf of three black ATC agents who filed a federal discrimination lawsuit against Hebert. Tingle said Hebert told him, “I’m going to f**k with Charles (Gilmore) first, then with Larry Hingle” in an effort to force them to leave the agency. Gilmore and Hingle are two of the three black agents who have filed suit against Hebert and ATC.

Tingle’s attorney, J. Arthur Smith of Baton Rouge, in an 11-page letter, has appealed the firing, accusing Hebert of “agency shopping” in his attempt to build evidence against Tingle in retaliation for his testimony in support of his fired colleagues.

Hebert’s tenure since being appointed by Bobby Jindal in November of 2010 has been tumultuous at best and disruptive to the entire agency, according to several agents who have talked privately—and publicly—with LouisianaVoice.

One of the most absurd rules put in place by Hebert was one which requires agents to spring to their feet and offer a verbal “good morning, Commissioner” whenever Hebert entered a room where agents were gathered.

Another order which conceivably could have placed an agent’s life in danger was his instruction to an agent who had been working undercover in bars in New Orleans in efforts to buy illegal drugs from dealers to cease undercover activities and to return to patrolling those same bars in full uniform.

Hebert’s accusations of payroll fraud stem from a GPS tracking system installed on ATC vehicles which Hebert said showed Tingle’s vehicle was at his home during hours he said he was working.

In leveling that accusation against his former agent, Hebert ignored that fact that Tingle often worked undercover in tandem with other law enforcement agencies, including the Ascension Parish Sheriff’s Office and the New Orleans office of the Food and Drug Administration (FDA). Together, they would conduct regular alcohol and tobacco compliance checks and it was commonplace for one of the agents to leave his state vehicle behind while conducting checks since using the state vehicle would defeat the purpose of undercover work.

When Hebert’s office was found out of compliance and ineligible for more than $100,000 in grant money from the U.S. Drug Enforcement Agency (DEA), Hebert laid the blame at Tingle’s feet even though the ATC compliance officer was Louis Thompson and not Tingle, attorney Smith said, adding that Thompson had been in charge of compliance for ATC for the entire 10 years that Tingle served as part of the DEA task force.

“These allegations are your third attempt to defame, intimidate and retaliate against Mr. Tingle,” Smith said, “because he has assisted and participated in the investigation and proceedings in connection with the EEOC charge and subsequent litigation in the case of Charles Gilmore.”

Gilmore is one of the black agents who has filed a federal lawsuit against Hebert and ATC.

Coincidentally, when the Jindal administration decided to go after former ATC Director Murphy Painter, the Louisiana Department of Revenue (LDR), which is over ATC, immediately launched its own investigation of Painter and federal charges of malfeasance were brought against him. He was subsequently acquitted and then won his own civil defamation suit against his accusers.

It was first shown by LouisianaVoice and later in his trial that the charges against Painter were retaliatory in nature and initiated by the Jindal administration after a dispute over his refusal to issue a permit to Budweiser to erect a tent at Champions Square across from the Louisiana Superdome. https://louisianavoice.com/2013/02/06/emerging-claims-lawsuits-could-transform-murphy-painter-from-predator-to-all-too-familiar-victim-of-jindal-reprisals/

Oddly, LDR, which has known of the Gilmore allegations since October of 2012, has yet to interview anyone about Gilmore’s claims or to initiate an investigation into the charges.

In his letter, Smith said the first attempt to bring charges against Tingle “was initiated when you (Hebert) employed (Baton Rouge law firm) Shows, Cali & Walsh to draft documentation based on one-sided and uncorroborated information. This purported ‘legal opinion’ was found to be unreliable by the Office of Inspector General (OIG).”

No surprise there. Shows, Cali & Walsh, which held 16 contracts worth a combined $3 million, skated perilously close to sanctions last year over evidence manipulation in the case of overheating on death row cells at Louisiana State Penitentiary at Angola. https://louisianavoice.com/2014/01/03/baton-rouge-law-firm-with-3-million-in-state-contracts-faces-legal-sanctions-over-evidence-manipulation-in-angola-lawsuit/

“Your second attempt,” Smith continued, “was initiated in 2013-2014 when you sent a complaint to the OIG alleging that (Tingle’s actions) constituted a criminal mater.

“…OIG conducted an extensive investigation …and determined that your allegations were not accurate enough to be utilized in making a case of payroll fraud.”

Bear in mind here that Hebert is head of a law enforcement agency for the State of Louisiana and apparently does not have the capability of building a criminal case or even knowing what constitutes criminal activity.

Not that he hasn’t tried.

“Despite the overwhelming evidence supplied to you by the OIG, …you continued your campaign to defame, intimidate, and retaliate against Mr. Tingle by appealing to … the Louisiana Department of Public Safety (State Police),” Smith wrote.

“You again asserted your professed belief that your alleged facts rise to the level of a crime and you were again informed that your purported facts did not rise to the level of being sufficient to be utilized in a court of law.

“The practice of appealing to multiple investigatory agencies in search of an investigation that supported your ulterior purpose is known in law enforcement as ‘agency shopping’ and is improper,” he wrote.

Smith said that Hebert launched his first investigation into Tingle during the time when Tingle was on active duty in the U.S. Coast Guard and that following a year-long OIG investigation, Tingle and Hebert were informed by letter that indicated no charges would be brought against Tingle.

Even as Hebert was telling Tingle that he intended to get rid of two black supervisors, including Larry Hingle, he was also instructing Hingle to investigate Tingle and Hebert later told Hingle to also investigate Tingle’s wife, also an ATC employee who had recently retired.

Hingle joined Gilmore and a third black ATC agent, Daimian McDowell in filing a federal lawsuit against Hebert, ATC and LDR on Oct. 2, 2012, and Tingle was listed as a friendly witness for the plaintiffs.

More details of the events in Hebert’s office will be forthcoming in a subsequent installment this weekend. Space simply does not allow this full story to be told in a single post.

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