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Archive for the ‘Ethics’ Category

One of the primary functions of the State Ethics Board, on paper at least, is to guard against conflicts of interests on the part of state employees and appointive and elected officials.

So what happens when a member of the State Ethics Board has a conflict of interests?

If you are an appointee of Gov. Bobby Jindal, the answer is: apparently nothing.

Nothing, that is, until you are called out by a member of the media.

Then you quietly resign.

Scott Schneider, vice chairman of the Louisiana Board of Ethics, submitted his resignation just weeks after the Tribune, a newspaper serving the African-American community of New Orleans published a story in its May/June issue headlined “Kira, Kira on the Wall” which explained Schneider’s own conflict of interests in ruling on an Aug. 21, 2012, conflict of interest decision about Board of Elementary and Secondary Education (BESE) member Kira Orange Jones.

New Orleans attorney James Babst had sought the opinion on behalf of client Jones because of her position as executive director of Teach for America (TFA) which holds a lucrative contract with the Louisiana Department of Education.

Ethics Board staff attorneys informed the board that the state Code of Governmental Ethics would prohibit Kira Orange Jones, while she serves as a member (of BESE), from providing compensated services to Teach for America at a time when TFA has or is seeking a contractual, business or financial relationship with either the Louisiana Department of Education (DOE) or the Recovery School District (RSD),” the Tribune said.

Enter Schneider to save the day for Kira Orange Jones, Superintendent of Education John White and Gov. Bobby Jindal.

Schneider argued against the staff recommendation, ultimately prevailing with the logic that Jones was merely head of the New Orleans office of TFA and not the entire organization.

In a three-page letter from staff attorney Tracy Barker, the Ethics Board noted that while TFA has contracts with DOE in amounts exceeding $50,000 and that while BESE is required to approve and sign the contracts, and that as a member of BESE, Jones voted on those contracts, somehow no conflict existed.

The legislation cited by the board said there is no conflict so long as the following criteria are met:

  • The employee must be a salaried or wage-earning employee;
  • The employee’s salary must remain substantially unaffected by the contractual relationship;
  • The public servant (BESE member Jones) must own less than a “controlling interest” in the company, and
  • The public Servant (Jones) must be neither an officer, director, trustee, nor partner in the company.

So just what part of “executive director” did the Board of Ethics not understand?

That, it turns out, might be the key. Babst, it seems, merely identified his client as an employee of TFA, being careful to note that she did not sit on the board of directors of the national TFA but apparently neglecting to identify her as executive director of the New Orleans office.

And it seems reasonable to assume that whether or not she continues to receive paychecks would hinge in great part on her success in placing TFA teachers in public and charter schools in the New Orleans area through those lucrative contracts with DOE. So much for her salary remaining “substantially unaffected” by the contractual relationship.

And what was Schneider’s motivation in coming to the defense of Jones even as Ethic Board staff attorneys were ready to point out the obvious conflict?

Well, it seems that The Tulane University Cowen Institute’s partnership with TFA last year boosted Tulane to fifth in the nation in the number of university graduating seniors applying to TFA.

Schneider serves as an associate general counsel for Tulane University but somehow never deemed that fact and Tulane’s association with TFA important enough to inform the Ethics Board staff or to recuse himself from the discussion.

Ethics Board—Schneider—Tulane—TFA—Kira Jones—BESE;

BESE—Kira Jones—TFA—Tulane—Schneider—Ethics Board.

Hmmm. Either way you look at it, it fails to pass the smell test.

Ironically, way back in September of 2008, when Jindal announced his appointment of Schneider, he did so with a strong statement about conflicts of interest.

Mary Dumestre had just resigned from the board, saying she wanted to avoid a potential conflict with her appointment and her private law firm work.

That prompted Jindal to stress how important it was “that ethics board members are completely free of any and all conflicts of interest.”

So, perhaps Gov. Jindal can explain how BESE President Chas Roemer continues to be able to take part in discussions and to vote on matters affecting charter schools while his sister, Caroline Roemer Shirley, serves as Executive Director of the Louisiana Association of Public Charter Schools.

Or how the President and CEO of Biomedical Research Foundation of Northwest Louisiana, which is taking over the LSU Medical Center in Shreveport and the LSU-run E.A. Conway Medical Center in Monroe, can simultaneously serve on the LSU Board of Supervisors which negotiated a blank contract with the Biomedical Research Foundation for that takeover.

The only reasonable explanation for all these things—and we have given this a lot of thought—is that Gov. Jindal simply holds the Louisiana electorate in contempt, in total disdain—inconvenient distractions, as it were, to be mollified only when politically expedient to do so.

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Gov. Bobby Jindal has inserted income from the privatization of public agencies that weren’t yet privatized in order to make the numbers in his Executive Budget more palatable to legislators.

He has included revenue from the sale of state buildings that were not yet sold—indeed, some of which came back with appraisals far below his projected sale price—in order to make that budget more realistic.

To be sure, he caught considerable flak from those fiscal hawks in the legislature for his repeated use of one-time money for recurring expenses—something by the way, he was openly critical of and which he vowed never to do during his 2007 gubernatorial campaign.

Now LouisianaVoice has learned that Jindal has apparently attempted to execute an end run around state contract attorneys and the attorney general’s office in an attempt to negotiate a settlement of an outstanding judgment in favor of the state against a major pharmaceutical company.

It should be noted here that any negotiations between parties in any litigation without involving attorneys would be considered a breach in legal ethics.

The object of Jindal’s efforts is to generate a quick up front settlement of $50 million in order that he might plug holes in the upcoming annual ritual of mid-year adjustments to the state budget, one observer said.

Fifty million? Pretty good windfall for the state, wouldn’t you say?

Not necessarily—not when you consider that the amount of the original judgment was $257 million.

That’s correct. Two hundred fifty million dollars. Plus $3 million in costs, plus another $70 million in attorney fees.

Attorney fees? Didn’t we say the attorney general’s office was involved in the litigation?

Well, yes, then-Attorney General Charles Foti initiated the lawsuit way back in 2004 in 27th Judicial District Court in St. Landry Parish but heavy hitters were needed in this matter so several outside firms were contracted to steer the litigation through the courts. Those included the firms of Kenneth DeJean of Lafayette, Robert Salim of Natchitoches and Bailey, Perrin & Bailey and Fibich, Hampton, both of Houston.

On the other side of the ball were lawyers from the firms of Irwin, Fritchie, Urquhart & Moore of New Orleans, Guglielmo, Lopez & Tuttle of Opelousas, Drinker, Biddle & Reath of Florham Park, N.J., and O’Melveny & Myers of Washington, D.C.

After six years of legal back and forth sparring, discovery, depositions and various other means of keeping attorneys’ meters running the matter finally went to trial Sept 28-30 and Oct. 12 and 14, 2010. When the dust had settled, the jury made a determination that the “aggressive marketing campaigns” of Janssen Pharmaceutical, a Johnson & Johnson company, had violated the Louisiana Medical Assistance Programs Integrity Law (MAPIL) no fewer than a whopping 35,542 times with each violation subject to a civil penalty of $7,250, bringing the total damages to $257,679,500.

(Don’t ask us what “aggressive marketing campaigns” were employed by Janssen or how they violated the state’s MAPIL; we’re not privy to that information. All we know is what we read in the Third Circuit Court of Appeal’s affirmation.)

Janssen, of course, appealed the award as anyone might expect, but the Third Circuit upheld the lower court judgment and Janssen has applied for writs to the Louisiana Supreme Court where the matter is now pending.

Nine years of judicial interest (6 percent per year in simple interest) brings the current total judgment to just a shade under $400 million.

So now we have Jindal who, in typical fashion, is attempting to patch anticipated budget holes with $50 million in one-time money—all the while throwing the state under the bus to the tune of nearly $350 million.

Several legal experts knowledgeable about the case say the State Supreme Court could conceivably reduce the attorney fees but that there is little chance that the $257 million award ($400 million with interest, remember) will be overturned—a fact that would make Jindal’s tactics even more underhanded.

And were it not for Attorney General James “Buddy” Caldwell, Jindal’s efforts may have succeeded, according to sources who told LouisianaVoice that Caldwell stepped in and shut down the negotiations.

Neither Caldwell nor this top assistant, Trey Phillips, returned telephone calls seeking comments on the matter.

Attempts were likewise made to contact several of the plaintiff attorneys who argued the case on the state’s behalf but all such attempts failed.

Any such settlement would necessarily negatively impact attorneys’ fees. Accordingly, it would be reasonable to expect a maelstrom of protests from the attorneys under contract to the state if they were aware of Jindal’s efforts.

LouisianaVoice also emailed Gov. Jindal’s office for a comment but received no response.

One person who did comment was Public Service Commissioner Foster Campbell of Elm Grove in Bossier Parish.

“I was not aware of this,” he said, “but I certainly am not surprised. This is typical of this governor. He has complete and total contempt for the people of this state. It’s all about what he can do for little Bobby. He’s trying to settle this for about 13 cents on the dollar just so he can patch his budget deficit, the state be damned.”

Neither Johnson & Johnson nor Janssen has made any campaign contributions to Jindal since 2003 but six pharmaceutical companies contributed $34,500 to his campaigns in 2007 and 2008. One of those, Pfizer, Inc., of New York City, gave $15,000 in three separate contributions of $5,000 each while Pharmaceutical Research and Manufacturers of America in Washington, D.C., made two contributions of $5,000 each in 2007 and 2008.

State campaign finance records also show that pharmaceutical companies contributed more than $400,000 to candidates for state offices, mostly legislators, since 2003. Those contributions were for both Republican and Democratic candidates. Again, it was Pfizer ($170,000) and Pharmaceutical Research and Manufacturers ($150,000) that reported the bulk of those contributions.

Other contributors included Takeda Pharmaceuticals of Deerfield, IL, and Novartis Pharmaceuticals of East Hanover, N.J.

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A state employee who witnesses any incident of sexual harassment is required to report what he sees or hears immediately.

The Civil Rights Act of 1964 made sexual harassment illegal in the workplace and today, in theory at least, federal laws regarding sexual harassment protect virtually all private and public employees in the U.S.

The Louisiana Department of Culture, Recreation and Tourism (DCRT), for example, has a complaint procedure clearly defined in writing which says, “Any employee experiencing or witnessing sexual harassment by anyone in the Office of the Lieutenant Governor and DCRT, including any manager, supervisor, administrator, co-worker, vendor, client or visitor shall immediately report the inappropriate conduct.”

The departmental regulation further says that under most circumstances, complaints should be made to the employee’s supervisor but “if the complaint involves the employee’s supervisor or someone within the direct line of supervision, or if the employee for any reason, is uncomfortable in reporting to his/her supervisor, he/she may contact any other supervisor” or contact the agency’s human resources director.

But if an employee who witnesses sexual misconduct and dutifully reports it he may find himself with a target on his back and he may well end up as the one who finds himself the subject of investigation, punishment and possibly even termination.

Take the case of Dean Vicknair, a former information technology employee of the Department of Public Safety and Corrections (State Police), who was responsible in part for the five-day suspension of his supervisor for sexual harassment of a female co-worker in 2005 but who ended up paying for his actions with his career.

One would think DPS would be the last place where sexual harassment would be tolerated.

Think again.

Even though DPS has an online State Sex Offender and Child Predator Registry site, it appears to have learned nothing from the 2004 incident involving Jeya Selvaratnam, then a supervisor but since promoted to Director of Information Technology and Communications.

In February of 2012, the State Probation and Parole Office, part of the Department of Corrections (DOC), settled a federal sexual harassment lawsuit involving a supervisor and a female employee of the Probation and Parole district office in Thibodaux in which the female victim was awarded $50,000 and the agency was ordered to initiate a sexual harassment training policy for its employees.

DOC spokesperson Pam Laborde said after the suit was settled that agency officials were “very quick and very swift to act” once the woman’s claims were reported to them. “If the (Probation and Parole) director didn’t know about the incident, how can you take action?” she asked. “We do have good policies in place. We’ll just brush them up where we need to.”

Despite her claim that the agency director was unaware of the supervisor’s actions, the Justice Department said at least four other department employees, including a part-time internal affairs investigator, knew about her harassment, which progressed from inappropriate comments to sexual assault,  but said nothing.

Perhaps that was because, even though that case involved a different agency, the DOC employees were aware of Vicknair’s experience at DPS which culminated in his forced retirement nearly six years after first reporting the incident by his supervisor.

In the end, an unblemished career spanning nearly 21 years meant nothing as he was forced out—while Selvaratnam was promoted.

In a seven-page letter of suspension to Selvaratnam dated April 26, 2005, State Police Col. Henry Whitehorn cited “overwhelming” evidence that Selvaratnam pursued the female subordinate over a six-year period, dating back to Nov. 16, 1998 and in December of 2002, while standing outside the State Police building with Vicknair, the female employee walked past and Selvaratnam told Vicknair he wanted to have sex with her (in the interest of decency, we paraphrased the exact quote provided in Whitehorn’s letter). Whitehorn is currently a U.S. marshal in Shreveport.

Soon after that conversation, Vicknair left DPS for the Department of Transportation and Development “because of problems he had with you,” Whitehorn wrote in his letter to Selvaratnam.

Vicknair did not report the conversation to the woman until more than a year later, in January of 2004, at which time the woman lodged a complaint against Selvaratnam, Whitehorn said. The following day, the woman attempted call out to Selvaratnam in a hallway and he turned and berated her verbally, reminding her, “You are my subordinate.”

Whitehorn also noted that until she filed her complaint against him, Selvaratnam repeatedly called the woman into his office for lengthy conversations and outside for frequent smoke breaks—all of which Whitehorn said forced other employees to take up the slack for the work the woman was unable to perform because she felt she had to acquiesce to Selvaratnam’s demands.

Both Selvaratnam and the female employee were married.

“Mr. Selvaratnam, the evidence is overwhelming that you did, over the course of several years, commencing on or about Nov. 16, 1998, repeatedly and for extended periods of time, keep (the woman) away from her duties as an IT Technical Support Specialist. Your behavior created a hostile work environment for (her) by increasingly interfering with her duties. You took (her) away from her duties to such a great extent that other employees had to perform (her) work for her. Your behavior created a gender-based hostile work environment for (her) and was particularly egregious in view of the fact that you were (her) second tier supervisor at the time. Your behavior was in violation of the Department’s Discrimination and Harassment Complaint Procedure…

“…Behavior which is offensive, inappropriate or in any way creates an unpleasant working environment for your co-workers will not be tolerated. Nor will any form of reprisal for retaliation against (the woman) or anyone involved in the investigative process be tolerated.

“Pursuant to Civil Service Commission Rules…you are hereby suspended for five eight-hour days without pay and allowances. Your suspension will begin at 8 a.m. on Monday May 9, 2005, and end at 4:30 p.m. on Friday, May 13, 2005.”

The female employee won a federal lawsuit against DPS, the details of which were ordered confidential by the court and she also received assurances that she would no longer be under the supervision of Selvaratnam. When he was subsequently promoted, he was once again supervising her and she filed a second suit in state court for breach of contract.

Vicknair, meanwhile, was called back to DPS following Hurricane Katrina to assist in Lotus Notes administration (email administration and trouble shooting) because of a lack of skilled employees in that section. He was assured that there was “no way in hell” Selvaratnam would ever be director of the section.

But Selvaratnam was indeed promoted to director at the insistence of State Police Superintendent Col. Mike Edmonson, Vicknair says, and the woman subsequently transferred to another section.

Vicknair said soon after his promotion Selvaratnam called him into his office and said he had read Vicknair’s transcript and that he “knew who his friends were and who his enemies were,” according to a federal lawsuit filed by Vicknair.

As pressure mounted on Vicknair, he filed grievances against Selvaratnam. When the DPS Grievance Committee investigated his complaints, Vicknair said, the committee interviewed Selvaratnam but none of Vicknair’s witnesses who he said could back up his allegations were called to testify.

Edmonson, who was best man at Selvaratnam’s wedding, was a member of the grievance committee that declined to interview any of Vicknair’s witnesses.

It should be noted here that LouisianaVoice recently received a comment on its June 28 post about the consolidation of 20 Executive Department IT operations from Selvaratnam’s state email address which said, “I don’t see the problem here. Why does everyone hate Governor Jindal? Is this a racial issue?”

When we pointed out that normally a state employee who uses his state email account to respond to political blogs would be reprimanded, Selvaratnam quickly fired off another email—again, from his state email address—denying that he was the author of the original comment. “I did not write to you,” he wrote. “I am not sure how you received this e-mail or who did it or their motive. I would appreciate it if you would remove this from your blog.”

Vicknair, who attempted to comply with requirements to report sexual harassment, only to subsequently find himself the subject of an investigation that left him jobless and which nearly cost him his home, was left disillusioned and more than a little jaded by his experience.

In a letter to DPS Internal Affairs, Vicknair said, “You stated that I failed to cooperate with the investigation” and was accused of inappropriate conduct. “Please explain to me how an attempt to protect a career of 20 years and (to) expose the internal corrupt actions of the current DPS administration warrants a charge of conduct unbecoming.

“My recent experiences have proven that integrity is not a foundation for the internal grievance process and is merely an established ‘feel good policy’ for the perception of adhering to state and federal requirements.

“I should never have been suspended and forced into early retirement after 20 years of impeccable, dedicated state service, but I went down swinging,” he said. “I continue to fight the good fight against corruption in an effort to prevent another person from facing a similar travesty.”

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“I believe that all elected officials should—as I have always endeavored to do—act with the interests of our citizens in mind.”

—State Rep. Chris Broadwater (R-Hammond), vice chairman of the House Labor and Industrial Relations Committee and former director of the Office of Workers’ Compensation, defending his work as attorney for insurance companies seeking to deny or reduce workers’ compensation claims and his admitted practice of routinely consulting with his successor OWC Director Wes Hataway on pending matters before OWC that directly affect his clients.

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When Chris Broadwater the state legislator says he has never received compensation from a private source for the performance of his legislative duties, he is technically correct.

Broadwater the attorney, however, does represent insurance companies before a state agency he once ran and over which he still exercises control as Vice Chairman of the House Labor and Industrial Relations Committee.

Taking that gray area of state ethics and moving into even murkier waters is the fact that Broadwater regularly consults with Wes Hataway, the current director of the Louisiana Office of Worker’s Compensation, the appointive position he himself once held before his election to the House of Representatives in 2011, on matters pending before the current director, Wes Hataway.

Broadwater (R-Hammond) resigned as Director of the Office of Workers’ Comp (OWC) in February 2011 to join a private law firm preparatory to running for state representative that same year and was succeeded by Hataway.

An ally of Gov. Bobby Jindal, Broadwater was immediately assigned to the House Labor and Industrial Relations Committee where he was promptly named vice chairman.

Documents filed with the State Board of Ethics in December 2012 and April of this year indicate that Broadwater represents three companies, Qmedtrix at $275 an hour, the Louisiana Home Builders Association, and LUBA Worker’s Comp, both at $135 an hour, in defending worker’s compensation claims before the OWC.

Moreover, an application for supervisory writs filed with the Third Circuit Court of Appeal in Lake Charles in March of this year in the case of Christus Health Southwest Louisiana, dba Christus St. Patrick Hospital, v. Great American Insurance Co. of New York, revealed meetings between Broadwater, Qmedtrix and Hataway to discuss the disposition of numerous cases involving Qmedtrix, namely efforts to get the cases stayed and transferred to another judge.

That writ application concerns procedures and conversations that took place involving numerous pending workers’ compensation cases about which we will be writing in subsequent postings.

For the purposes of this post, however, we will be limiting the discussion to the activities of Broadwater as they pertain to his relationship with the current Director of OWC (the position he once held) and his serving as vice chairman of the legislative committee that oversees the functions of OWC.

Broadwater, when confronted with the reports of the meetings, admitted to meeting with Hataway in late November 2012 at which time the transfers were discussed, the court filing says.

“In what may be the pinnacle of irony, Mr. Broadwater actually disclosed this ex parte meeting on his state ethics disclosure form,” the writ application says.

It (the writ application) quoted Broadwater’s own comment from that disclosure form: “Met with Director of OWC discussing process of resolving disputes over medical billing.”

The document said Broadwater admitted to meeting with Hataway “three or four times in person” (always with a Qmedtrix attorney present) and speaking with him 10 or 15 times on the phone. “This ex parte contact (Latin legal term meaning for the benefit of one party) with the OWC director at the request of Qmedtrix” cost Qmedtrix $275 per hour for Mr. Broadwater’s services, it said. “This rate must have seemed reasonable to Qmedtrix especially once they learned Chris Broadwater was not only a longtime friend (20 years) of Director Hataway, but was actually Director Hataway’s boss when Chris Broadwater was OWC Director,” the writ application added.

Not only did Broadwater admit discussing with Hataway the pending appointment of his former law partner to succeed Judge Shelly Dick once Judge Dick was confirmed as U.S. District Court Judge, but he related in detail how Hataway sought his advice on whether or not Hataway had the power as director to issue a stay of pending cases without involving the judges to whom the cases were assigned. Broadwater was of the opinion that Hataway did have such authority.

At the time Broadwater was hired by Qmedtrix, he “was well aware that Qmedtrix was involved in numerous workers’ compensation claims pending in the various OWC districts challenging its payment recommendations to the hospitals and ambulatory surgery center,” the writ application says.

“There is absolutely no question that Chris Broadwater was well aware that his client Qmedtrix was heavily involved in the ‘usual and customary’ litigation in front of the OWC at the time these ex parte discussions took place,” the court document said.

Broadwater even admitted as much when he was asked in deposition if he understood when he spoke with Hataway that Qmedtrix “was heavily involved in litigation in Louisiana workers’ compensation courts at the time.”

“Sure,” responded Broadwater to that question.

In addition to Qmedtrix, Broadwater also represented LUBA, the writ application says, “and, in fact, helped (former law partner) Amanda Clark secure LUBA as her client as well.

Broadwater, in a two-page letter to LouisianaVoice, said he approaches his duties as an attorney and as a legislator “with humbleness and with the highest sense of honor and ethical behavior. I believe that all elected officials should…act with the interests of our citizens in mind,” he said.

He said his representation of clients is governed by state statute which “prohibits me from receiving compensation from a source other than the legislature for performing my public duties, from receiving finder’s fees, from being paid by a private source for services related to the legislature or which draws substantially upon official data not a part of the public domain.”

He said he has provided legal counsel to clients before agencies, other than the legislature “and have disclosed such representation as required by law. At no time have I been offered, nor have I ever accepted payment from a private source for the performance of my legislative duties,” he said.

“My service as vice chair of the Labor & Industrial Relations Committee in no manner alters my duties or the constraints placed upon me under the Code of Governmental Ethics.

“If one assumed your interpretation to be correct—that service on a committee to which matters of the law related to one’s private employment are considered—it would likewise be improper for attorneys to serve on the Civil Law Committee, attorneys to serve on the Judiciary Committee, attorneys to serve on the Criminal Justice Committee, pharmacists to serve on the Health and Welfare Committee, business owners to serve on the Commerce Committee, farmers to serve on the Agriculture Committee, insurance agents to serve on the Insurance Committee, accountants to serve on the Ways and Means Committee, or attorneys to serve in the legislature in general as the legislature passes laws that inevitably will be later interpreted and applied in our private legal practice. I do not believe that such an outcome is required by the law, nor do I believe it would be wise policy to prohibit individuals to participate in government and share their area of expertise as policy is developed.

“I believe that my colleagues and I take our oath seriously and, should an issue arise that directly relates to an issue with which we are personally involved, we appropriately recuse ourselves from any such vote.”

While that was certainly better than a “no comment,” it still does not address the issue of his meeting with the OWC director to discuss pending cases that might affect his clients or to give advice to his successor on these cases.

Nor does it explain the likelihood that he would be hired to represent the three companies to fight for denials or reductions in workers’ comp medical payments were it not for his connections as both a legislator and as a former director of the Louisiana Office of Workers’ Compensation.

Just another sad example of how things are done in the administration that gave us the “gold standard” of governmental ethics.

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