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First signing for my Bobby Jindal book is this Saturday in Denham Springs; two others set for Winnfield, Mandeville

Posted in Book Review, Campaign Contributions, Corruption, Economy, Education, Ethics, Governor's Office, Health Care, Higher Education, PACs, Politicians on May 10, 2016| 13 Comments »

Three book signings have be set for my latest book, Bobby Jindal: His Destiny and Obsession.

Our first book signing will be this Saturday at 2 p.m. at Cavalier House Books in Denham Springs’ Antique Village. It’s the same store where I held my first book signing for my first book, Louisiana Rocks: The True Genesis of Rock & Roll.

Also on hand for this Saturday’s signing will be Del Hahn, author of Smuggler’s End: The Life and Death of Barry Seal. Hahn is the retired FBI agent who successfully pursued Seal. I had a small hand in the book as editor.

Before we go any further, it might be worthwhile to point out that my book about Jindal is not a powderpuff book in the mold of the two books by Jindal which probably resulted in his dislocating his shoulder from repeatedly patting himself on the back.

Please know that this book was undertaken and written in its entirety with zero collaboration or cooperation from anyone in the Jindal camp.

It’s the kind of book that result in my being removed from Jindal’s Christmas card list—had we ever been on that list, which we certainly were not.

This 294-page book is an examination that addresses several issues:

  • How did Jindal become a multi-millionaire after only three years in Congress?
  • Jindal’s claims of a new high standard of ethics are debunked by his own actions as governor.
  • Jindal’s claim of transparency is also belied by his penchant for secrecy.
  • His vindictive nature in firing or demoting anyone and everyone who dared disagree with him.
  • His awarding of prestigious board and commission memberships to big contributors.
  • His sorry record in protecting the state’s environment and the state’s coastline.
  • His mysterious deal to sell state hospitals via a contract containing 50 blank pages.
  • His single-handed destruction of higher education and health care.
  • His near-comical, yet pathetic candidacy for the Republican presidential nomination.

There is much, much more, of course, but you will have to get the book to read it.

Here is the current schedule for upcoming book signings:

  • Cavalier House Books in Denham Springs: Saturday, May 14, at 2 p.m.
  • The Winn Parish Library in Winnfield: Thursday, May 19, at 2 p.m.
  • Barnes and Noble Bookstore in Mandeville, Saturday, June 18, from 2 to 4 p.m.

This schedule will be updated as additional signings are scheduled.

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Rep. Nancy Landry continues to take shots at teaching profession as House Education Committee chairperson

Posted in BESE, Cartoon, Education, House, Senate, Legislature, Legislators, Politicians on May 4, 2016| 13 Comments »

 

Some things are difficult to understand.

Like, for instance, how voters returned State Rep. Nancy Landry (R-Lafayette) to the legislature for another term. Not only was she re-elected, but it was by a landslide. The only plausible explanation was that Bobby Jindal was running against her.

She received 85 percent of the vote in her district, which includes parts of Lafayette and Vermilion Parishes.

Public school teachers and their families alone, voting as a bloc in those two parishes, should have prevented that kind of mandate.

You see, Landry is on a one-person crusade to become Public Enemy Number One among school teachers. She has repeatedly pilloried teachers from her position in the legislature and now she has been named as chairperson of the House Education Committee. (Coincidentally, Denham Springs GOP Rep. Rogers Pope, a retired school superintendent and former Superintendent of the Year for Louisiana, stepped down from the committee about the same time Landry was elevated to the chairmanship.)

Why am I so critical of Landry?

Well, first, let’s go back to March 2012 when she opened proceedings by the committee by introducing a new rule that had never existed in House committee hearings. https://louisianavoice.com/2012/03/14/how-do-you-teague-a-legislator-ask-jindal-to-teague-a-teacher-just-change-the-committee-rules-for-witnesses/

The committee was hearing testimony on HB 976 by committee Chairman Stephen Carter (R-Baton Rouge) that would impose sweeping changes, including providing student scholarships for Jindal’s Educational Excellence Program, allow for parent petitions for certain schools to be transferred to the Recovery School District (RSD) and charter school authorization criteria.

Before debate began on the bill, Landry said she had received calls from “concerned constituents” to the effect that some teachers from districts that did not close schools for the day had taken a sick day in order to attend a rally of teachers opposed to Jindal’s education reform.

She neglected to mention, of course, that teachers are given 10 sick days per year, so if they want to use a sick day to attend a committee hearing in Baton Rouge, that’s their business and no one else’s. Moreover, if a teacher exceeds her 10 days during a school year, she is docked a full day’s pay at the teachers’s salary rate while the substitute teacher is paid a substitute’s salary, which is less.

Undaunted and undeterred by those facts, Landry made a motion that in addition to the customary practice of witnesses providing their names, where they are from and whom they represent, they be required to state if they were appearing before the committee in a “professional capacity or if they were on annual or sick leave.”

Democrats on the committee were livid. Then-Rep. John Bel Edwards (D-Amite) said he had never in his tenure in the House seen such a rule imposed on witnesses.

“This house (the Capitol) belongs to the people,” said Rep. Pat Smith (D-Baton Rouge) “and now we’re going to put them in a compromising position? This is an atrocity!”

Committee member Wesley Bishop (D-New Orleans) said, “I have one question: if we approve this motion and if a witness declines to provide that information, will that witness be prohibited from testifying?”

Carter, momentarily taken aback, held a hastily whispered conference before turning back to the microphone to say, “We cannot refuse anyone the opportunity to testify.”

That appeared to make Landry’s motion a moot point but she persisted and the committee ended up approving her motion by a 10-8 vote that was reflective of the 11-6 Republican-Democrat (with one Independent) makeup of the committee.

Edwards lost no time in getting in a parting shot on the passage of the new rule.

Then-Gov. Bobby Jindal was the first to testify and upon completion of his testimony, Edwards observed that no one on the committee appeared overly concerned of whether or not the governor was on annual or sick leave.

Jindal, who had entered the committee room late and knew nothing of the debate and subsequent vote on Landry’s motion, bristled at Edwards, saying, “I’m here as governor.”

Now fast-forward to yesterday (Tuesday, May 3) and once again we have Landry going for teachers’ jugulars. http://www.legis.la.gov/legis/ViewDocument.aspx?d=980632

A substitute bill for House Bill 392 by Landry cleared the committee without objection and will now move to the full House for consideration but there are a couple of points that need to be made about the provisions of the bill that committee members may have failed to consider—or simply ignored.

Landry wants to pile on the 2012 law, Act 1, under which pay for teachers and other employees may be cut. She wants to impose salary cuts when teachers’ and other employees’ working hours are reduced. She said that Lafayette Parish had cases in which educators successfully sued the school board over pay cuts when they were moved from 12-month jobs to nine-month jobs. http://theadvocate.com/news/15675829-64/new-provision-for-teacher-pay-cuts-clears-house-panel

Historically, teachers have had the option of being paid a lower monthly salary extended over 12 months or higher a monthly salary on nine months. The annual salary was the same either way.

In the Lafayette case, two teachers who were displaced by the closure of their charter school for high-risk students sued and won back pay when their schedules were reduced from 244 days to 182 days. One of the teachers saw her salary cut from $80,104 to $60,214 while the second was cut from $74,423 to $56,207. Both cuts of about 25 percent coincided with the fewer number of days. http://theadvocate.com/news/11060641-123/appeals-court-sides-with-teachers

On the surface, the bill makes perfect sense. As is the case most of the time, however, one needs to look beyond the obvious for answers.

And when you do, you will find that no teacher ever simply works 182 days. That is a myth and one that needs to be debunked once and for all.

Landry is an attorney specializing in family law. As such, she likely earns considerably more than the average teacher. But that’s okay; the teacher made a career choice, so that isn’t my sticking point. But like a teacher, she sees all manner of humanity parade through her office and while her hourly fee is the same for all, there are times I’m pretty sure that some clients should be charged significantly more per hour because of the difficulty in addressing their multitude of problems. An amicable divorce, for example, is a much easier case for Landry than one in which the parents fight over every child and every piece of property right down to the pet gerbil.

It’s the same for teachers. The child whose parents are attentive to his or her school work and who see to it that all homework assignments are completed correctly is a pleasure to teach.

The child who comes to school in clean cloths, on a full stomach, and well-rested after a good night’s sleep is not the problem.

The child whose lives in a two-parent household where the parents are not constantly fighting and screaming is generally a well-adjusted student who poses no problems in the classroom.

The child who is respectful to the teacher and who applies himself or herself in class work isn’t the one who causes disciplinary problems.

But that child whose parents are on crack or meth and who comes to school unprepared, unkempt, in filthy clothing, hungry, sleepy and angry at the world is a challenge to the teacher whose job it is to try and help that child keep up with the rest of the class—which, of course, only serves to slow the progress of the entire class.

If Rep. Landry would take the time to volunteer in an elementary or middle school classroom for one week, she would come away from the experience with an attitude adjustment. I guarantee it.

  • When she has to break up a schoolyard fight between middle school students who are just as likely to attack her physically, she will experience a world she has never known;
  • When she has to clean the behind of a first-grader in the restroom who is already wearing filthy underwear, she will get a taste of what elementary school teachers do—for 182 days a year;
  • When she has to attempt to explain the multiplication tables to a child who curses her, she will gain a new respect for teachers;
  • When she sees the hunger in the eyes of a malnourished child whose crack- and meth-addicted parents show up at parent-teacher conferences blaming the teacher for their own shortcomings, she will think about the difference—that abyss—between her fee and the salary paid a teacher;
  • When she has to stay up until midnight grading papers, she will wonder why the hell teachers aren’t paid more;
  • When she has to return to the classroom at the end of the school year to clean up her classroom, throw out old papers, prepare new lesson plans, prepare for the new school year and adjust to the constantly changing dictates of the Board of Elementary and Secondary Education, tasks that generally extend through most of the summer “vacation,” she will wonder why anyone would ever opt for teaching—without ever once considering that it is a calling, not a job, for those who have an unselfish desire to help children as they grow into adulthood;
  • When she must make that fateful decision, as did that teacher at Sandy Hook, to stand between an armed mentally deranged lunatic and a child so she can take the bullet that will end her life but spare the child in doing so, she will know what it’s like to enter the most honorable profession known to humanity.

When she does all that, maybe, just maybe, Rep. Nancy Landry will gain a new respect and appreciation for the sacrifice, dedication, hard work, and thankless job of educating our children.

Until then, she is just another politician with a kneejerk solution to perceived problems.

But as for me, I can honestly say that I struggled mightily in school and had it not been for at least a half-dozen of my high school teachers who took a direct interest in my well-being, nurtured my potential (what there was of it), and encouraged me to work a little harder, I truthfully do not know where I’d be today. I will carry my gratitude to those teachers to my grave.

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How Louisiana funds the Catholic Church (an examination of one of the quirks of the LA. DOE’s flawed Voucher System)

Posted in Audit Reports, BESE, Boards, Budget, Education, Privatization, Public Records on April 17, 2016| 19 Comments »

Editor’s note: The following is a guest column written by James Finney, Ph.D., of Baton Rouge. This was first posted on his blog, Methodical, Musical Mathematician’s Musings, and we felt it was an important essay that addressed issues with the state’s flawed school voucher program. Rather than simply publishing a link to his post, Dr. Finney was gracious enough to allow us to re-post it in its entirety on LouisianaVoice. Dr. Finney is a math teacher with an interest in transparent and effective government.  He grew up in South Dakota but has lived in Baton Rouge for more than 20 years.

His observations should not be interpreted as a criticism of the Catholic Church but rather an objective look at how the state’s voucher program has been mismanaged and vouchers paid in disproportionate amounts to church-affiliated schools by the Louisiana Department of Education.

 

By James Finney, Ph.D.

Did the headline get your attention?  If so, that’s good. When I saw the details of voucher funding for 2014-15, I was startled at how much of the nearly $40 million in spending went to Catholic schools.

The total amount sent to the 131 voucher schools participating in the Student Scholarships for Educational Excellence program in 2014-15 was $39,486,798.20. This figure is reported in a spreadsheet I received from the Department of Education in response to a public record request.  Of that, approximately two-thirds ($26,819,434.44) went to the 76 participating schools that are affiliated with the New Orleans Archdiocese and the Dioceses of Shreveport, Alexandria, Baton Rouge, Houma-Thibodaux, Lafayette, and Lake Charles.

A defender of the voucher program might suggest that most of the private schools in the state are Catholic, so it makes sense that most of the vouchers would be used in Catholic schools. The evidence says otherwise. There are 412 nonpublic schools listed in the state’s 2015-16 School Directory (which I received incidental to another public record request). Of those, 190 are identified by the state as being Catholic. So the Catholic schools are fewer than half the nonpublic schools, but they account for two-thirds of the vouchers. There is no easy way to compare total enrollment (Catholic vs. non-Catholic private schools) since the state does not appear to collect or report private-school enrollment data.

As mentioned earlier, 76 of the 131 voucher schools are Catholic. Of the remaining 55, nearly half (25) have a school name containing the word “Christian” and nine have a name containing “Lutheran”, “Living Word”, “Bishop”, “Baptist”, “Adventist” or “Bible”. And there’s Jewish Community Day School.  So that leaves roughly 20 of the voucher schools that might be secular.  So much for the separation of Church and State.

It’s interesting to rank the voucher schools by total amount paid in 2014-15:  The top six schools account for more than $10 million, and the next 14 for more than another $10 million:

  • St. Mary’s Academy (Girls) (C), Orleans (417): $2,606,160
  • Hosanna Christian Academy (AG), EBR (390): $2,265,944
  • Resurrection of Our Lord School (C), Orleans (466): $2,103,286
  • Our Lady of Prompt Succor (C), Jefferson (208): $1,045,417
  • St. Louis King of France School (C), EBR (182): $1,021,094
  • 506087 Leo the Great School (C), Orleans (191): $1,016,667

Five of the most expensive voucher schools, and 17 of the top 20, are Catholic.  The non-Catholic schools among the top 20 are Hosanna Christian Academy (No. 2 above), Evangel Christian Academy in Caddo Parish (No. 16) and Riverside Academy in St. John the Baptist Parish (No. 20).

One of the voucher schools appears to be a public school: Park Vista Elementary School in Opelousas (St. Landry Parish). It would be interesting to know the story on that school’s participation in the program, and where the students are coming from. The state sent the Parish an average of somewhere around $7,760 each for 19 students, contributing $150,000 to the local system’s bottom line.  Compare that to the $5,570 that the state sent to St. Landry Parish Schools in Minimum Foundation Program (MFP) funding for each student who actually lived in St. Landry Parish.

Two of the schools that received vouchers are not even on the state’s list of nonpublic schools:  Walford School of New Orleans received $17,717, and McKinney-Byrd Academy in Shreveport received $3,566. If they aren’t on the state’s list of nonpublic schools, why did they receive voucher payments? In 2015-16, the SIHAF K12 Learning Academy joined the ranks of voucher schools not on the list of nonpublic schools, and in 2016-17, Weatherford Academy in Westwego will be allowed to offer up to six vouchers and Children’s College in Slidell will be allowed to offer one or two vouchers. Go figure.

State Superintendent of Education John White would like us to believe that at an average of around $5,500 each the vouchers saves the state a lot of money. There’s a flaw in that argument. The average per child state share of the MFP in 2014-15 was only $5,185.  So there might be a savings to local school districts, if those local districts had to educate fewer students with the same amount of local tax revenue. Unfortunately, there’s a huge loophole in the voucher program that allows students who have never (and probably would never) have been enrolled in a public school to get their private educations funded by the state. Maybe that’s why I can’t get a meaningful response to my request to the Department of Education in which I seek the records of how many voucher students had actually “escaped” public schools.

As an example of the fallacy of the vouchers-as-a-bargain-for-the-state argument, consider East Baton Rouge Parish Schools. In 2014-15, the state share of MFP was $4,165 per student. Of the 20 voucher schools within the district’s boundaries, the only school with an average voucher amount below $4165 was St. Francis Xavier School at $4,103.  At least five voucher schools charged the state over $8,000 per student. For two schools, Most Blessed Sacrament and Country Day School of Baton Rouge, both the average tuition per student and the number of students each quarter were (illegally?) redacted from the records supplied by the state, so there’s no way to know how much each school charged the taxpayers per student.

The highest tuition rate ($9,000) was charged by Prevailing Faith Christian Academy in Ouachita Parish for its 31 voucher students. It appears that the schools get to set the rate the state pays for an education over which the state exercises no oversight, as long as there are at least a few families willing to pay that amount out of their own pockets. With no effective state oversight, there is no way to tell just how good (or more likely how bad) a bargain the state is getting by funding private education.

Meanwhile only 91 schools are accepting applications for new voucher students in 2016-17. Perhaps many of the private schools have realized that mixing public money and private education is a bad idea all around.

F 17 of February 20 (voucher school status for 2016-17, and Q1 enrollment for 2015-16)

11 of February 20 – 2014-15 SEE Enrollment and Funding (2014-15 voucher spending)

2014-15-circular-no-1156a—final-budget-letter—march-2015  (Look at “Table 3 Levels 1&2” tab, in columns AP and AT.)

 

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Why are public records laws enacted? Why don’t judges enforce laws? Perhaps Deshotels case will bring change

Posted in Corruption, Education, Ethics, Judges, Lawsuits, Media, Politicians, Public Records, State Agencies, Transparency on April 7, 2016| 9 Comments »

Third of four-part series:

Given the reluctance to impose meaningful fines in cases of blatant public records compliance violations, one has to wonder:

  • What is the purpose of going through the time consuming procedure of passing laws if they are not going to be enforced?
  • What is the purpose of a judge donning a robe and sitting on the bench if he/she has no intention of upholding so even the minimum penalty for violations of the law?
  • Is there some sort of unwritten agreement among certain judges and public officials that says judges must merely wink at violations and hand down only token penalties?

Louisiana laws, we can only assume, were enacted for a reason and that reason was to ensure strict compliance and to lay out proper punishment for violators. To that end, Louisiana Revised Statute (L.R.S.) 44:35 (E) (1) clearly says:

  • 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….

That’s certainly clear enough but L.R.S.) 44:35 (E) (2) then goes on to say:

  • 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 added.)

LOUISIANA PUBLIC RECORDS ACT

We have already seen in earlier posts this week how judges, through some form of convoluted rationale, are able to substantially reduce that $100 per day fine to insignificant amounts and in at least one case, to nothing at all.

First there was the case of the Baton Rouge Advocate and the LSU Daily Reveille. The two publications sued the LSU Board of Supervisors over its refusal to provide a list of candidates for LSU President. They won and the district court judge awarded more than $50,000 in penalties calculated on the $100-a-day formula for non-compliance only to see the monetary award overturned and negated in full by the Louisiana First Circuit Court of Appeal.

Then came our own lawsuit against the Division of Administration and Commissioner Kristy Nichols. DOA delayed responses to numerous requests by LouisianaVoice for several months only to be hit with a penalty of only $800 plus court costs and attorney fees.

Louisiana’s Public records laws being routinely ignored by officials; lawsuits, fines increase – all at taxpayer expense

And in the case of Barbara Ferguson and Charles J. Hatfield and their lawsuit against the Department of Education on behalf of their non-profit research organization, Research on Reforms, the court’s ruling was even more egregious. Three full years of non-compliance came to 684 days by the plaintiffs’ estimation (we calculated the number to be closer to 745 days) and they requested the full application of the penalty of $100 per day, or $68,400 plus attorney fees ($29,779) and court costs ($3,121).

FERGUSON REQUESTED JUDGMENT

Baton Rouge District Judge William Morvant first denied the plaintiffs’ claim outright but was overturned by the First Circuit which remanded the case back to Morvant for the imposition of penalties. Morvant not only cut the attorney fees in half to $15,000, but he completely disregarded the penalties for DOE’s—and Morvant’s apparently—disregard of the law.

FIRST CIRCUIT RULING ON FERGUSON

Louisiana Department of Education does poorly combating public records requests; Rep. Richard bill seeks trasparency

So now comes Mike Deshotels and his public records lawsuit against veteran defendant John White and his Department of Education.

This one is pretty easy except for one minor snag:

Deshotels filed his lawsuit on April 10, 2015, after two months of back and forth communications between him and DOE failed to produce the requested Multi Stat report for all public schools in Louisiana which contained the actual total number of students enrolled in each grade.

MICHAEL DEHOTELS PETITION

Even though Deshotels never requested any personal information, DOE ultimately refused his request “because of their obligations to protect the personal information of the students pursuant to FERPA (Family Education Rights and Privacy Act),” according to Deshotel’s petition.

The case finally made its way to trial in Baton Rouge on Oct. 19, 2015, before 19th Judicial District Judge Todd Hernandez.

Hernandez broke with the pack when he held John White personally liable. More than that, he assessed White with attorney fees and court costs of $11,988.84. And then, applying the letter of the public records law he ordered the payment of $100 per day “from Feb. 16, 2015, until the requested records were produced.

DESHOTEL JUDGMENT

Despite his order, those records were not produced until more than five months later, when they were submitted along with a March 31, 2016, settlement offer. That additional delay brought the total cost, including attorney fees and court costs, to about $49,000, according to Deshotels’s Baton Rouge attorney J. Arthur Smith.

And Judge Hernandez, as if sending his own message, held John White personally liable, an indication that Hernandez had reason to believe White had withheld the records on his own volition and without the advice of legal counsel.

(Parenthetically, if more judges followed the example set by Hernandez, public officials might be more cognizant of the importance of complying with the law.)

Still White persisted in his state of denial. That March 31 settlement letter from DOE legal counsel G.M. Millet, Jr., was little more than an insult to Smith and Deshotels.

“After careful consideration, the Department of Education has decided to provide an unsuppressed copy of the October 2014 Multi-Stats Report to Michael Deshotels and to pay him $9,292.74 for attorney’s fees and litigation expenses pursuant to Judge Hernandez’s judgment,” the letter said.

SETTLEMENT OFFER

He then added the traditional legal verbiage that nevertheless appeared particularly absurd: “By complying with those portions of the judgment, in lieu of appeal, the Department is not admitting fault.” Not admitting fault? Really?

Millet also said that DOE planned to appeal the “portion of the judgement (sic) imposing fines against the Department for being arbitrary and capricious.”

Smith now says that the appeals have run, meaning the deadline has passed for White and DOE to appeal the judgment. Still, no payment has been made.

So Smith is now preparing to take matters to the next level.

He has prepared a Motion for Judgment Debtor Examination as the first step toward seizure of White’s assets, including his 2013 Infiniti and garnishment of his state wages.

In that motion, yet to be filed pending Hernandez’s ruling on a separate DOE motion, Smith asks “to examine John White, Defendant/Judgment Debtor and his income records, pay check stubs, W-2 forms, last year’s income tax returns, business papers, automobile titles and registration certificates (pink slips), records of accounts in banks and other financial institutions (checking and savings) on all matters pertaining to his income or property, in order that Plaintiff (Deshotels) may find means to execute the Judgment, and that the said Defendant (White) should be ordered to appear before this Honorable Court at such time as the Court assigns for said examination.”

MOTION FOR DEBTOR EXAMINATION

Now that should get someone’s attention, especially if Smith’s motion is granted.

If that’s what it takes to change the mindset of bureaucrats and elected officials, to hold them accountable to the laws of this state, to force them to cease furtive actions away from public observation, then so be it.

Tomorrow: Lafayette City Marshal Brian Pope has learned an expensive lesson for his refusal to make available 588 pages of emails Lafayette-based newspaper The Independent. Besides monetary penalties totaling almost $100,000, a state district judge tacked on seven days’ house arrest for contempt of court. That sentence has been postponed pending the outcome of Pope’s appeal of the conviction.

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Louisiana Department of Education does poorly combating public records requests; Rep. Richard bill seeks trasparency

Posted in Corruption, Education, Ethics, Governor's Office, Lawsuits, Legislature, Legislators, Media, Politicians, Public Records, Transparency on April 6, 2016| 6 Comments »

Second of four-part series:

When the conversation turns to public records, there’s seldom a reporter, governmental watchdog agency, or a private citizen active in the public arena who doesn’t have a personal story to tell about obstacles encountered in efforts to obtain documents.

Nowhere in state government is that more evident than in the labyrinth known as the Louisiana Department of Education (LDOE) and in the governor’s office over the past eight years.

And if State Rep. Jerome “Dee” Richard (I-Thibodaux) gets his way, his HB 166 would make records of the governor’s office more accessible to the public. HB 166

The House Governmental Affairs Committee will hold hearings on his bill Thursday at 9 a.m.

Bobby Jindal is gone and there is reason to hope for a new era of openness in the governor’s office. But across Third Street from the towering State Capitol, John White remains at DOE and if what’s past is truly prologue, to borrow a phrase from Shakespeare’s The Tempest, any fantasizing about change is just that: fantasizing.

All you have to do is ask anyone who has suffered through the process of obtaining anything of substance in the way of public records from LDOE.

Ask James Finney, Ph.D., about his efforts to get answers to his records requests.

Finney began his quest for records from White back in April 2013 and in the ensuing years has filed dozens of other public records requests with DOE, all to no avail. Finally, after giving up on getting DOE and White to comply with state law, he sued on May 22, 2015. The suit will be heard by 19th Judicial District Court Judge William Morvant, which is not necessarily good news for Finney as we shall see later. It’s also unusual for a public records lawsuit to take nearly a year for trial in that they are supposed to be put on a fast track for hearing.

FINNEY LAWSUIT

White has been taken to court at least three times in the past. He has lost no fewer than three times. In two of those three cases, monetary penalties handed down by the courts still have yet to be paid.

Barring any delays the trial in Finney’s case is set for April 29. If he prevails and if he is awarded monetary damages (and there is no reason he shouldn’t, Judge Morvant notwithstanding), he stands to reap quite a financial windfall, given the number of unmet requests and the time periods involved—all at taxpayer expense, of course.

The lone exception is LouisianaVoice, which sued and won back in 2013 and was awarded damages of $2,800 plus court costs and attorney fees. In our case, the records were produced and the monetary damages paid. But not since then.

Ask Barbara Ferguson, Ph.D. and Charles J. Hatfield.

In April of 2013, exasperated at their failure to obtained requested documents from DOE, they sued. http://www.louisianaweekly.com/research-on-reform-files-lawsuit-against-la-doe/

RESEARCH ON REFORMS LAWSUIT

Ferguson is the first female superintendent of New Orleans public schools and an attorney. Hatfield is managing partner of a company specializing in diverse information retrieval and data analysis for public opinion researches. Together, they head up a non-profit organization called Research on Reforms.

Research on Reforms was founded after Hurricane Katrina and the subsequent takeover of 107 New Orleans public schools. Ferguson agreed that the Orleans Parish School Board “was a mess.” She said she was initially “delighted” at the conversion of the schools into charter schools but soon came to the realization that things were not as they appeared, particularly with the Recovery School District (RSD).

Data requested by Research on Reforms for the ’06-’07 and the ’07-’08 school years was provided but beginning in the ’08-’09 school year, the organization began to experience roadblocks thrown up to block its requests. Among the records it did receive was one with the absurd claim that one RSD school boasted a 100 percent attendance rate.

“You don’t have 100 percent attendance at a high school, ever,” Hatfield said.

“Research on Reforms, Inc. is not interested in obtaining privileged student-level data,” the organization said on its Web site after the lawsuit was filed.

But because LDOE was providing raw data to other national reporting organizations, Ferguson and Hatfield felt they had a right to the same information.

“LDOE is becoming increasingly less transparent through its recent actions to modify its website, removing historical databases and removing actual current school enrollment counts,” the Web site said.

“Because Louisiana’s state takeover of public schools was an experiment in how to improve failing schools, data had to be collected, aggregated and analyzed to determine whether the experiment was working or not,” it said. “While the Louisiana Department of Education collected, and continues to collect, the raw student level data needed for analysis, the LDOE has developed its own rules for releasing this data.”

LDOE dug in its heels and the lawsuit proceeded to trial in Baton Rouge’s 19th Judicial District Court before District Judge…..William Morvant.

Incredulously, Morvant sided with LDOE and White that the citizens of Louisiana had no right to information about how the state’s ballyhooed school reform movement under Bobby Jindal and White was progressing or if the reforms were even remotely successful.

In effect, it was none of our business.

Fortunately, in the interest of transparency and open government, the First Circuit Court of Appeal disagreed with Morvant and on Sept. 19, 2014, it upheld Research on Reform’s appeal, reversed the lower court judge and remanded the case back to Morvant’s court for the awarding of damages. The $675 cost of Research on Reform’s appeal was assessed against LDOE.

FIRST CIRCUIT RULING ON FERGUSON

The decision by the three-judge panel was unanimous.

“We agree with the plaintiffs (Research on Reforms) that the Louisiana Public Records Law does not conflict with FERPA,” the First Circuit ruling said. FERPA is the Family Education Rights and Privacy Act, a federal law that protects the privacy of student education records.

“FERPA allows an educational agency to create a record to be used for education research only if the personally-identifiable information of the students is de-identified, or that the records are coded,” the ruling continued. “According to FERPA, an educational agency can release a student’s record if the agency removes personally identifiable information and replaces it with a code….Once the document is legally created, the document becomes a public record under the Louisiana Public Records Law.

“For the reasons set forth above, this court maintains the appeal, the judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings.”

With the issue of whether or not the records were public settled, the only remaining proceeding was the awarding of damages.

“We went back into district court and Judge Morvant was not happy he’d been reversed,” said Ferguson.

In its memorandum in support of motion for attorney fees, court costs and penalties, Research on Reforms requested that Morvant award for the trial and appeal litigation $29,779 in attorney fees and $3,121in court costs, a total of $32,850.

FERGUSON REQUESTED JUDGMENT

Research on Reforms requested the documents on Jan. 27, 2012, and LDOE did not release the documents until three years later, on Jan. 22, 2015.

L.R.S. 44:1 et seq. provides penalties for non-compliance:

  • 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.

Taking into account weekends and the 10 official legal holidays per year in Louisiana, there were 684 working days over the three-year period, according to the motion. At $100 per day, Research on Reforms was within its rights in asking for penalties totaling an additional $68,400—a total of $101,250 (actually, LouisianaVoice calculated 745 days, which would have increased the penalty to $74,500 in addition to court costs and attorney fees).

The Louisiana Public Records Law further says:

  • The custodian (in this case, John White) 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 added).

So, when all parties reconvened in Morvant’s courtroom on Nov. 9, 2015, what did Morvant, in his magnanimous administration of justice under Louisiana’s Public Records Law, award Research on Reforms? How did he protect the rights of Louisiana’s citizens to access public records without future unnecessary and unfair challenges while sending a message to politicians and bureaucrats that defiance of the law was not to be taken lightly?

Why, he slashed attorney fees and courts exactly by more than half, of course, to a paltry $18,121—$3,121 in court costs and $15,000 in attorney fees. (You have to wonder what Morvant’s attorney fees would have been had he been in private practice and handled this case.)

But, but…what about the $100 per day penalty, the $68,400?

Surely you jest. “It is ordered, adjudged and decreed that …Louisiana Department of Education shall pay to plaintiffs $3,121 in court costs and $15,000 in attorney fees, for a total of $18,121. Period. MORVANT GRANTED HALF OF REQUESTED FEES

No mention of penalties for LDOE’s openly defying the law. Nada. Zilch. Zero.

It would be egregious enough if that was the end of the story, but it isn’t.

Now LDOE refuses to pay the judgment.

Department legal counsel Chris Frugé informed Ferguson and Hatfield that they must now find a legislator who will introduce an amendment in the current legislative session for payment not by LDOE, but by the Legislature.

That procedure is followed in payment of judgments against the state and the Louisiana Department of Transportation and Development (DOTD) involving automobile accidents. That’s because of some misapplication of federal funds by DOTD several years ago, but that has never been the case with any other agency—and it certainly was not the case in LouisianaVoice’s $2,800 award in 2013.

Unless there is some provision that we don’t know about, that is not the law; it’s just another hoop LDOE is making citizens jump through in order to hold John White’s feet to the fire of Louisiana law.

Tomorrow: In a case in which John White was held personally liable for $49,000 in fines, attorney fees and court costs, he has chosen to ignore the court’s decision and has made no effort to pay the judgment. But that may be about to change when the plaintiff attorney unveils his fallback plan in court.

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