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Archive for the ‘Ethics’ Category

Appeal court slams LSDB tactics in reversing kangaroo court license revocation; board attorney rules on his own objection

Posted in Boards, Corruption, Courts, Ethics on March 23, 2014| 22 Comments »

When we wrote on March 7 that the Louisiana State Board of Dentistry (LSBD) functions simultaneously as adjudicator, prosecutor, judge and jury in disciplinary hearings against dental professionals, we were not embellishing or fudging the facts. Quite the contrary; we were being quite literal.

Take the behavior of LSBD legal counsel Brian Begue, for example, in the 2010 hearing on charges brought against former Shreveport dentist C. Ryan Haygood, a Magna Cum Laude graduate of Louisiana Tech University with a degree in molecular biology and the LSU School of Dentistry.

Since 1995, Begue, rather than serve as a staff attorney at a set salary, has received eight separate contracts from the board totaling an eye-popping $2.825 million, including $450,000 for each of the last five three-year contracts.

(And State Sen. Robert Adley, Gov. Bobby Jindal and others are carping about the attorney general hiring a private law firm to pursue that lawsuit against 97 oil and gas companies by the Southeast Louisiana Flood Protection Authority-East? But that’s another story.)

Begue’s role in his capacity as board legal counsel, according to a Sept. 26, 2012, ruling by the Louisiana Fourth Circuit Court of Appeal in New Orleans, is restricted to that of an advisor “who is independent of complaint counsel and who has not participated in the investigation or prosecution of the case.” (Emphasis added.)

The appeal court, in its ruling, noted that Begue “participated in the hearing before the board’s panel both as prosecutor and adjudicator” during Haygood’s hearing before the board. An adjudicator is one who presides, judges and arbitrates during a formal dispute and as such, may rule on evidentiary objections and other procedural questions if so delegated to do so by the board chairman.

Moreover, the court said, the LSBD “condoned Mr. Begue’s behavior and failed to acknowledge Dr. Haygood’s objection that Mr. Begue was overstepping his role in the proceedings.”

The appeal court went even further to say that the board’s hearing record was “replete with instances in which Mr. Begue acted as prosecutor throughout the proceedings, and at times simultaneously acted as prosecutor, panel member and independent counsel,” and noted that in a separate 1997 case, the Louisiana Supreme Court said that the “commingling of prosecutorial and adjudicative functions violates both the letter of the Louisiana Administrative Procedure Act and the due process goals it is designed to further.” The idea of the same person serving as judge and prosecutor “is anathema under our notions of due process. Such a scenario is devoid of the appearance of fairness,” The appeal court said.

To fully appreciate the extent of Begue’s—and by its complicity, the board’s—willingness to disregard any semblance of fairness or due process, consider this gem: the court observed that Begue’s brazen behavior went so far as “even ruling on his own objection.” (emphasis added.)

The absurdity of such actions brings to mind the episode of the old Danny Thomas CBS series Make Room for Daddy in which he launched The Andy Griffith Show. In that episode, Thomas, in the role of Danny Williams, is pulled over for speeding by Griffith in the role of Mayberry Sheriff Andy Taylor. At the courthouse, it turns out that Andy is also the judge and when he imposes a fine, Danny demands to speak to the mayor. “All right,” drawls Andy as he picks up the phone and tells the operator to give him the mayor’s office. A second phone on the desk of the sheriff/judge rings and Taylor picks it up and answers, “Mayor’s office, Mayor speaking.”

Any first-year law student would know an attorney cannot rule on his own objection. That is very definition of a kangaroo court. And if he is not acquainted with that basic rule that every high school debater knows, the practice of law is the last occupation he should be pursuing. Perhaps he would be better suited to cleaning Porta-Johns.

And for that, he holds a $450,000 contract with the board.

But it gets better.

Ten years earlier, in hearings on charges against Dr. Randall Schaffer, Begue had openly violated a Louisiana Supreme Court order to cease participating in board proceedings by serving as both prosecutor and board general counsel. Yet, he continued that same practice in Dr. Haygood’s hearings before the board—and in all likelihood, will again in the next case against some unsuspecting dentist.

Haygood ultimately was convicted on eight separate charges, three of which had been dropped before his hearing took place, a quantum stretch its own right on the part of the board. He was fined $5,000 on each of the eight counts ($40,000) and ordered to pay not only his own attorney fees but those of the board and the fees of board investigator Camp Morrison (combined total of $133,000), for a total financial penalty of $173,000. Additionally, the board ordered permanent revocation of Haygood’s dentistry license.

The activities of board-contracted private investigator Morrison are almost as bad—except he has received eight contracts since 1997 totaling “only” $1.735 million, more than a million dollars less than Begue, but still nothing to sneeze at.

What’s more, the board pushed a bill through the Louisiana Legislature two years ago that allows the board to provide legal representation for Morrison—at the board’s (read: taxpayer) cost, a benefit bestowed upon no other state contractor.

Also, Morrison is provided a rent-free office in the LSBD suite on the 26th floor of One Canal Place in New Orleans, a suite for which the board pays a whopping $4,700 per month in rent.

Occasionally, contract workers for state agencies are provided work space in state offices but that is only for those jobs which cannot be performed offsite. But it is unheard of for a state contractor to be provided legal representation. In fact, the reverse is true. Contractors are required to maintain their own errors and omission insurance and to provide their own legal counsel in case of litigation—and those contracts contain hold harmless clauses, or indemnification, for the state.

So, the question obviously is what did Dr. Haygood do to bring the wrath of the LSDB down upon him?

A better question might be what did Morrison and Begue do?

We will attempt to address the two questions in order.

Apparently, Haygood’s biggest sin was opening offices in Shreveport and Bossier City and initiating an aggressive advertising campaign that resulted in attracting former patients of prominent Shreveport dentist Ross Dies who was one of several defendants named in a federal lawsuit filed by Haygood.

Other defendants include Morrison; unlicensed investigators Karen Moorhead and Dana Glorioso hired by Morrison and who Haygood says posed as patients, giving him false symptoms in order to help Morrison build his case against Haywood; former LSDB executive director Barry Ogden; members of LSBD, and several dentists who Haygood says assisted LSDB in its investigation of him.

The fact that board member Dr. H.O. Blackwood also was a Haygood competitor in the Shreveport area didn’t help, Haygood says in his lawsuit.

Haygood says in his lawsuit that Ogden and Begue were “well aware” at the time Ogden appointed Begue as independent counsel that Begue had already “participated in the investigation or prosecution of the case” against Haygood. “In fact, Begue began discussing the investigation with Morrison as early as April 2007, at the outset of the investigation, and he conducted conversations with Ogden, Morrison and other board members regarding the status of the investigation long before he (Begue) was appointed independent counsel.” Haygood said that as long-time counsel for the board, Begue “was aware that his activities prior to the appointment by Ogden disqualified him for service as independent counsel.”

Haygood said that aggressive, unrestrained investigation tactics employed by Morrison and Begue “create an obligation of the board to pay costs that it is typically unable to pay,” costs that are passed on to the dentist under investigation if he is convicted—and few brought before the board escape without some type of monetary penalty.

“Morrison utilizes coercive and threatening tactics when interviewing witnesses,” Haygood said. While conducting his investigation of Haygood, for example, Morrison appeared at the home of Haygood’s hygienist, Julie Snyder, at 8:30 p.m. during her maternity leave, the lawsuit says. “Finding her home alone with her newborn baby, Morrison told Snyder that he knew that she and Haygood were guilty and pressed her to admit wrongdoing, Haygood says, adding that other dentists “have had to have police officers assist in removing Morrison from their offices after he refused to leave.”

It should be noted that when a dentist is brought before the board for a hearing on charges brought against him, the board is represented by Begue and another lawyer designated as the prosecuting attorney. The dentist, on the other hand, is not allowed to have legal representation before the board.

The Fourth Circuit Court of Appeal, in its September 2012 ruling, noted that board member Dr. Conrad McVea, Jr. directed Morrison “to send people in” to Haygood’s offices. This was the son of former board member Conrad McVea, Sr. who told Dr. Randall Schaffer, who is Jewish, that he could never maintain the professional standard of care in his practice because he had never accepted Jesus as his personal savior. The obvious question here is: are board memberships passed down from father to son like some type of inheritance or family heirloom?

Moorhead was recommended as one of the two unlicensed investigators to pose as patients by Dr. White Graves, a former board member and Moorhead’s employer, the Fourth Circuit decision says.

“Dr. Haygood argues that he was not afforded due process at the hearing before the board,” the appeal court said. “He also contends that during four days of testimony, Mr. Begue ‘repeatedly interfered and zealously advocated on behalf of the board by cross-examining witnesses, supplying objections to complaint counsel, and questioning the credibility of Dr. Haygood.’

“We have comprehensively reviewed the transcripts of the four-day hearing and we agree with Dr. Haygood’s representation of Mr. Begue’s actions.”

The Fourth Circuit’s decision further said that Begue’s “twofold role as prosecutor and adjudicator violated Dr. Haygood’s right to a hearing that is fair and impartial. The type of commingling found in this case is strictly prohibited by the Louisiana Administrative Procedure Act.

“Based upon our review of the record, we find that Mr. Begue’s functions of general counsel, independent counsel, prosecutor and fact-finder were so interwoven that they became indistinguishable, which created the appearance of impropriety and deprived the proceedings of the imperative and fundamental appearance of fairness.

“Therefore, the board’s decision to revoke Dr. Haygood’s license must be reversed,” the ruling said, adding that the board “improperly combined the prosecutorial and judicial functions by allowing its general counsel, Mr. Begue, to serve as the prosecutor, general counsel, panel member and adjudicator for the proceedings. We hold this conduct is violative of the Louisiana Administrative Procedure Act and Dr. Haygood’s due process right to a neutral adjudicator and a fair hearing.”

“We find the Louisiana State Board of Dentistry’s decision to revoke Dr. C. Ryan Haygood’s dental license is arbitrary and capricious; therefore, we reverse the trial court’s judgment (the state district court had earlier upheld most of the board’s actions) which affirmed the revocation of Dr. Haygood’s license and remand this matter to the board for a new hearing.”

Wait. What? Remanded to the board for a new hearing?

Yep. The Haygood matter went right back to the board to be heard by the same panel.

You don’t need three tries to guess the odds of a different outcome for the rehearing. One might have a better chance in Warren Buffett’s $1 billion prize for picking the winner of every game in the NCAA March Madness bracket.

Haygood, realizing he would never receive a fair hearing, much less a different outcome in repeated appearances before the board, finally packed up his chair and drill and moved to North Carolina where he currently practices his trade. But because he refuses to give the board the satisfaction of backing down, his hearing is still pending.

And that is how kangaroo courts work.

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Notable Quotables (in their own words)

Posted in Boards, Corruption, Ethics on March 21, 2014| 1 Comment »

“I’s here.”

—Louisiana Auctioneer Licensing Board Vice Chairman James Sims and consumer member Greg Bordelon, both responding to roll call at the board’s Nov. 5, 2012, meeting in apparent mocking of fellow member Rev. Freddie Phillips, who is black. The incident was reported in the Baton Rouge Advocate:  article

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Former Auctioneer Board member provides more insider peeks at board turf protection through secrecy and racism

Posted in Boards, Commissions, Corruption, Ethics, Guest Columnist on March 21, 2014| 4 Comments »

By Robert Burns

LouisianaVoice writer

Following up our recent post regarding shill bidding and the Louisiana Auctioneer Licensing Board (LALB) turning a blind eye to the illegal practice, I’ll now shift to another alarming aspect:  racism.  To get the true tone and tenor of that racism, I would encourage readers to click on the audio links supplied in this post and merely listen to (or watch) what is said.

As mentioned in our first installment, Rev. Freddie Phillips was appointed to the LALB in early 2008.  He is the first and, to date, only African American auctioneer in Louisiana’s history.  Rev. Phillips attended the 2008 National Auctioneer’s Association (NAA) convention soon after he joined the LALB.  He wasn’t aware that, as an LALB Member, he was entitled to have his trip paid for by the LALB.  Upon his return and learning that fact, he applied for reimbursement.  His request, however, became engulfed in an ocean of technicalities (most notably reimbursement being sought after the closeout of a fiscal year), so Rev. Phillips ultimately ceased pursuit of the reimbursement.  Instead, he informed me that he would seek approval to attend the 2010 NAA Convention as an LALB representative instead.

Accordingly, at the May, 2010 LALB meeting, Rev. Phillips made what he thought would be a simple request to attend the Convention.  He quickly got a surprise, however, when I was the only other LALB member voting to approve his request.  He thus became the first LALB member to be denied the privilege of attending as a Board representative.  Many board members, in explaining why they opted not to approve his attendance, were rude and mean-spirited in their assessment of Rev. Phillips.  Those assessments included former long-time LALB chairman Delmar “Buster” Gay’s saying that  Rev. Phillips may be an embarrassment at the convention.  Then-Vice Chairman (now Chairman) Tessa Steinkamp also said that she wouldn’t want Rev. Phillips to represent the LALB.

Frustrated in his efforts, Rev. Phillips began seeking historical LALB travel records, only to face demands by then-Chairman James Comer and former long-time Chairman Gay as to why he wanted the records. (Editor’s note: Louisiana’s public records laws expressly prohibit any inquiry into why a citizen would want to see any public record.) The badgering reached an apex when Comer told Rev. Phillips to get an attorney and sue the LALB.  As evidenced by the preceding audio clip, Comer also indicated that Rev. Phillips and I may end up “by theirselves (sic),” implying that Gov. Jindal may soon remove one or both of us from the LALB (a prophetic statement as I was subsequently terminated).  Rev. Phillips  finally spoke up, saying, “I don’t have to take this.”   Others also spoke up in his behalf.  First, I defended him.  Also, audience member (and then-auctioneer) Nell Stuart expressed her displeasure with comments made regarding Rev. Phillips.  Finally, Rev. Phillips’ then-Representative, Rep. Regina Barrow, whom Rev. Phillips and I invited so she could witness first-hand the relentless attacks, voiced her own observations of “underlying issues” that she’d witnessed.

All of the audios in the preceding paragraph transpired at one meeting (which would turn out to be my last):  August 2, 2010.  I sent all of these audios clips (and others) to Gov. Bobby Jindal’s office and relayed my sentiments that the kind of conduct being exhibited by Chairman Comer, former long-time Chairman Buster Gay, then-Vice Chairman (now Chairman) Steinkamp, and others was completely unacceptable and that I expected either changes or that other more professional board members would be recruited to serve.  I also made it clear to the Jindal administration that I intended to provide these audio clips to anyone who requested them or may have interest in them.  I was given my walking papers (I believe the term is teagued) by Gov. Jindal 39 days later.  What Gov. Jindal nor the Board counted on was that my ouster would leave me free me video subsequent meetings.

The August 2, 2010, LALB meeting prompted Rep. Barrow to address board and commission appointments in general at a special meeting of the Joint Committee on Governmental Affairs on November 17, 2010.  She requested that a representative from the LALB attend to answer any questions the panel may pose but only Rev. Phillips and Ms. Steinkamp attended.

Rev. Phillips never received a check for his attendance at that legislative hearing even though the LALB had no qualms about issuing Ms. Steinkamp a check for her $97 per diem for her attendance. When Rev. Phillips inquired why he didn’t receive a per diem payment,  Executive Director, Sandy Edmonds, said that since Rev. Phillips was “suing the board” (Rev. Phillips filed a Writ of Mandamus to obtain travel records which Chairman Comer was refusing to provide), he “should not be a representative of the board.”

Following is a list of a few of the events involving Rev. Phillips that have transpired since my ouster from the LALB:

1.  1/10/11:  Rev. Phillips repeatedly threatened with lawsuits for questioning the fact the LALB didn’t vote to approve its attorney charging for time attending an NAA Convention (the same one he was denied being able to attend).  The threats begin at the 3:09 mark of this video.  The lawsuit treat was followed up in writing soon thereafter.  (Note:  By the time of that meeting, former long-time Chairman Buster Gay’s LALB membership had been severed.  Also the 1/10/11 meeting turned out to be Chairman Comer’s last meeting as his membership was severed days after the meeting).

2.  7/17/11:  Rev. Phillips’ license is threatened for attempting to bring up issues at New Orleans Auction Galleries (NOAG), which filed bankruptcy on 4/1/11 and employed LALB Chairman Steinkamp as its “Vice President, Director, and Treasurer.”  Chairman Steinkamp begins her threat at the 1:33 mark of this video.  At the time of bankruptcy, NOAG had over $600,000 in unpaid consignors and had been paying company operating expenses with consignor escrowed funds, yet Chairman Steinkamp, her position with NOAG notwithstanding, never alerted the LALB to any problems at NOAG and the LALB instead learned of them via the bankruptcy filing.

3.  9/17/11:  Rev. Phillips is asked four times within a two-minute span if he is “carrying a weapon.”   There’s no way to know if there’s a correlation, but Board Attorney Anna Dow sent then-Chairman Comer this letter dated July 25, 2010 relaying that the females feel a need for security in light of “events over the last few years.”  From the August 2, 2010 meeting on, the LALB has employed an EBRP Deputy (Ronald Landry) at all its meeting at a cost of $160/meeting.  Rev. Phillips told me that the “are you carrying a weapon” inquiry was the proverbial “last straw” and that he informed Gov. Jindal’s administration hat he would not agree to serve another concurrent term and that Jindal needed to begin searching for a replacement for his second term.  Gov. Jindal did appoint a replacement days after he began serving his second term.

4.  11/05/12: At the first LALB meeting that Phillips missed in more than four years, LALB Vice Chairman James Sims and Consumer Member Greg Bordelon respond to the roll call with “I’s here.”  Rev. Phillips requested that I submit that audio clip to Gov. Jindal’s Office, so I did.  Accordingly, knowing that an article in The Advocate was pending about the incident, Gov. Jindal’s office requested that the Inspector General’s Office investigate the matter.  The IG’s Office issued this report in which Sims attributed his response to his “diabetes and dentures.”  Bordelon, meanwhile, denied answering the roll call in that manner in the Advocate article but ultimately admitted he did make the roll call response but said he was “merely mocking Sims, a North Louisiana redneck.”  Shortly after release of the IG report, The Advocate published this article of the report’s findings.  Bordelon’s LALB membership was severed about three months later.  Mr. Sims continues to serve as LALB Vice Chairman.

Rev. Phillips decided that it would be a good idea for the LAPA website to have an “embarrassment index” which was alphabetized by board member or affiliate.  It was an excellent suggestion, and here’s that alphabetized link of embarrassments for anyone who’d like to see it.  Perhaps future LALB meetings will provide additional material.

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Former fraud investigator joins LouisianaVoice with rare insider’s closeup look at State Auctioneer Licensing Board

Posted in Boards, Corruption, Ethics, Governor's Office on March 18, 2014| 9 Comments »

Robert Burns of Baton Rouge, a former fraud investigator, has agreed to join LouisianaVoice as an underpaid (read: gratis) researcher and contributing writer. His initial series of stories will chronicle his experiences as a member of the Louisiana Auctioneer Licensing Board. 

—Tom Aswell

 

By Robert Burns

LouisianaVoice writer

Following up on Tom Aswell’s recent posts regarding the Louisiana State Board of Dentistry, there is another State Board with an extensive history of questionable activity:  The Louisiana Auctioneer Licensing Board (LALB). The board is comprised of five auctioneers and two at-large “consumer” members.  The board’s actions include turning a blind eye to an illegal practice called “shill bidding,” ignoring the apparent victimization of elderly auction clients, racism and possible travel voucher and payroll fraud.

In early 2008, Gov. Bobby Jindal appointed me and a very good friend, Rev. Freddie Phillips (Louisiana’s first and only African American auctioneer) to the LALB.  Rev. Phillips and I each endured relatively short, tumultuous tenures on the LALB due to our observations of abuse and the fact that we did not (and do not) hold back in voicing our displeasure with that abuse.

In fact, sensing that Louisiana’s then-only auctioneer trade association, the Louisiana Auctioneer’s Association (LAA), seemed to openly encourage these practices (particularly shill bidding), Rev. Phillips decided to form a second association, the Louisiana Association of Professional Auctioneers (LAPA).  Although he invited any auctioneer willing to adhere to LAPA’s strict code of ethics to join only two others, myself and auctioneer JonEric Kramer, did so. Other auctioneers, and especially LALB Members, became furious that LAPA’s website, Rev. Phillips’ brainchild, so readily exposes widespread unethical activity within the auction industry.

My post for today focuses on the issue dearest to me: shill bidding.

LAPA’s first tenet is vigorous opposition to shill bidding, an illegal auction practice in which plants are placed in the audience by the auctioneer or seller for the sole purpose of driving up the bid with no intention to buy the property.  The practice is illegal unless it is divulged to the auction bidders; however, the practice is pandemic in Louisiana’s auction industry. In my opinion, shill bidding is literally destroying the auction industry. The entire auction process hinges on the public being able to rely upon that process for market transparency. When shills are introduced, the transparency is destroyed and the public rapidly becomes cynical and justifiably distrustful of auctioneers.

The issue of shill bidding came to a boil in 2010 when then-Rep. Damon Baldone (D-Houma) asserted that auctioneer Barbara Bonnette, an Alexandria-based auctioneer, tried to artificially inflate his $675,000 bid on an historic home in Thibodaux by falsely representing that a $700,000 bid had arisen when, in reality, it had not.  Rep. Baldone was furious over the attempt to “steal” $55,000 from him (by advancing his bid to $725,000, from $675,000, plus a 10% buyer’s premium associated with that advancement).  As a result, during the 2010 legislative session, he introduced a bill (HB 1439) to make shill bidding a crime and declare it “theft by nonviolent means.” That’s when all hell broke loose in the Louisiana auction industry. I testified in favor of Baldone’s bill,  and overnight became the most hated auctioneer in Louisiana.  LAPA has a webpage to explain shill bidding, and another to  publicize statements made by auctioneers in public forums about shill bidding.  Those public statements include prominent Livingston-based equipment auctioneer Marvin Henderson testifying in strong opposition to the bill, State Rep. John E. “Johnny” Guinn, R\-Jennings (who is himself a Louisiana-licensed auctioneer) stating publicly to the LALB that he was “embarrassed” by my testimony, the formal reading into the House records of the nineteen (19) auctioneers testifying or stating vigorous opposition to the bill, auctioneer Joe Massey relaying he felt I had “stabbed auctioneers in the back,” auctioneer Marvin Henderson trivializing my auction career.  All of this furor over my steadfast resolve that auctioneers ought to obey the laws prohibiting shill bidding (or fully disclosing it to conform with the law).  So, I found myself as a sitting member of the LALB, an agency for which the stated purpose is to “protect the public” (which is precisely what shill bidding laws are designed to do), and I became public enemy number one among Louisiana auctioneers for adhering to the very Oath I took when becoming an LALB Member!

My testimony led to immediate actions by LALB Members and the auctioneer community to have me removed from the LALB.  First, then-LALB Chairman James Kenneth Comer sought to have ethics charges brought against me for my testimony.  Ironically, in the weeks leading up to my testimony, LALB Executive Director Sandy Edmonds was actively recruiting auctioneers via phone, including me, to testify against the bill (she was doing so at the behest of then-Chairman Comer).  Rev. Phillips received a similar phone call, and I confirmed that prominent Kenner-based real estate auctioneer Dave Gilmore had also gotten such a call.  So, Chairman Comer, through Ms. Edmonds, was actively recruiting auctioneers to testify against the bill, a practice which is clearly an ethical violation (to recruit either for or against), yet he would seek to have ethics charges against me for my testimony in favor of the bill. The Ethics Board quickly relayed that I had in no way committed an ethics violation as I was “expressing (my) opinion regarding shill bidding and not those of the LALB.”

Immediately after my testimony in favor of Baldone’s bill, I was approached by several auctioneers in the hallway.  One of the auctioneers, State Rep. John E. “Johnny” Guinn (R-Jennings), used profanity in berating me over my testimony.  The incident got so bad that I filed a police report with Capitol Police.  The officer who took my report relayed that he personally delivered it to then-House Speaker Jim Tucker.  The officer relayed to me that Speaker Tucker was furious over Guinn’s conduct.  Speaker Tucker, in turn, delivered the police report to Jindal’s office, and that was the last I ever heard of it.  However, I have strong reason to believe that my filing clearly infuriated Guinn as evidenced by Guinn mailing this letter to Gov. Jindal seeking my removal from the LALB.  Nine days later, Jindal complied and sought my resignation.  His “Special Assistant,” Jonathan Ringo (who now is an associate attorney with Jimmy Faircloth’s firm), upon my asking him why my resignation was being sought, said only that “things just aren’t working out.”  When I refused to resign, Gov. Jindal terminated my services effective September 10, 2010.

As I’ll demonstrate in my next installment, my shill bidding testimony was likely not the only reason Jindal removed me from the LALB.  I was complaining bitterly to his office regarding my observation of blatant racism on the LALB regarding Rev. Phillips.

 

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Jindal aide moves to DCFS as advocate/lobbyist; could be facing problems if Ethics Board had any enforcement teeth

Posted in Boards, Ethics, Governor's Office on March 17, 2014| 7 Comments »

Our friend C.B. Forgotston was first to point out an apparent violation when the Louisiana Department of Children and Family Services (DCFS) hired a legislative liaison and agency advocate/lobbyist. http://forgotston.com/

Now, LouisianaVoice has come upon a recent opinion by the Louisiana Board of Ethics in Absentia which would seem to validate Forgotston’s cynicism. (By way of explanation, the Board of Ethics in Absentia is the agency formerly known simply as the Board of Ethics before Gov. Jindal set the “gold standard of ethics” when he gutted the board’s powers barely a month after taking office in 2008.)

The Baton Rouge Advocate published a brief, five-paragraph story a week ago (March 10) in which it announced that the Department of Children and Family Services had hired a new legislative liaison in the person of Dave Pearce at a salary of $75,000 a year.

Pearce, who previously worked as assistant director of constituent services in Jindal’s office (yes, they’re bailing out over there), moved into the unclassified position where he will serve as “executive lead on all federal and state legislative matters for DCFS,” the Advocate said.

But the most revealing part of the story was contained in the last paragraph in which the newspaper pointed out that documents submitted to Civil Service indicated that the position serves as a lobbyist and advocate on behalf of the DCFS.

Forgotston was quick to point out that Pearson may be in violation of two state laws, assuming the newspaper account is correct. He cited two statutes to support his position:

  • La. R.S. 24:56(F) provides: No state employee in his official capacity or on behalf of his employer shall lobby for or against any matter intended to have the effect of law pending before the legislature or any committee thereof. Nothing herein shall prohibit the dissemination of factual information relative to any such matter or the use of public meeting rooms or meeting facilities available to all citizens to lobby for or against any such matter. (Emphasis Forgotston’s.);
  • La. R.S. 43:31(D) provides:   No branch, department, agency, official, employee, or other entity of state government shall expend funds of, administered by, or under the control of any branch, department, agency, employee, official, or other entity of state government to print material or otherwise to urge any elector to vote for or against any candidate or proposition on an election ballot nor shall such funds be used to lobby for or against any proposition or matter having the effect of law being considered by the legislature or any local governing authority. This provision shall not prevent the normal dissemination of factual information relative to a proposition on any election ballot or a proposition or matter having the effect of law being considered by the legislature or any local governing authority. (Emphasis Forgotston’s.)

“In other words, no state employee shall lobby nor shall any public funds be used to lobby,” he said.

Jindal, with the sage legal counsel of Jimmy Faircloth, might well respond with the classic line, “I understand the situation but I don’t see the problem.”

Well, we did a little checking of our own and found that even though lobbyists are required to be registered with the Board of Ethics Emeritus, Pearce’s name is nowhere to be found on the lengthy roster of state lobbyists.

And then, we did a little more digging and found a fairly recent opinion of the Bored of Ethics that addresses that very scenario. (We’re being a bit unfair to the Ethics Board because it was Jindal’s legislation in 2008 that removed the board’s enforcement powers, thus reducing its status to that of an advisory board only.)

In a Sept. 24, 2013, two-page letter to Brian Begue, legal counsel for the Louisiana State Board of Dentistry (LSBD), ethics staff attorney Aneatra P. Boykin responded to a number of questions posed by Begue:

  • Are (dentistry) board members considered state employees under state law?
  • Are state employees and public servants considered the same?
  • What is the effect of state statute which defines public employees as board officers and its employee(s)?
  • What is the effect of state statutes which sate that employment does not include appointed officials?
  • May the members approach their own legislators regarding legislation affecting the practice of dentistry or dental hygiene?
  • May (board members) approach their own legislators regarding legislation having nothing to do with the regulation of dentistry or dental hygiene?
  • Must (board members) register as lobbyist(s) if the answer to the questions is in the affirmative?

“The (Ethics) Board concluded and instructed me to advise you that the lobbying laws under the jurisdiction of the Board of Ethics apply to members of the Dentistry Board,” Boykin said. She said state statutes provide “that no state employee in his official capacity or on behalf of his employer shall lobby for or against any matter intended to have the effect of law pending before the legislature or any committee thereof.”

She further said state statute “defines ‘public employee’ to include anyone, whether compensated or not, appointed by an elected official to a post to serve the governmental entity or an agency thereof or anyone performing a government function” and that a section of that same statute “defines public servant as a public employee or elected official.”

Members of the LSBD—and members of any other board appointed by the governor—are state employees under state law.

Accordingly, “Dentistry Board members may not have any direct communication with legislators regarding legislation affecting the practice of dentistry or dental hygiene or any other matter intended to have an effect of law pending before the legislature,” she said.

Nothing prohibits board members from disseminating factual information relative to dentistry or dental hygiene, she added.

So, if those same standards are applied to Pearce, he could have a definite problem in carrying out the duties of his new position.

But Forgotston, never one to leave his flank unprotected, has an answer for that as well, even if his suggestion is offered with tongue planted firmly in cheek:

“In the past, we know that Jindal appointees often believe that they are above the law. Without any repercussions, they have failed to follow laws such as having valid La. driver’s licenses, having Louisiana license plates on their personal vehicles and payment of the Use Tax on vehicles brought into Louisiana from other states.

Solution:

  • A legislator should file and pass legislation during the 2014 Regular Session to repeal the above two provisions of the law.

Problem solved.

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