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Nevada governor reins in that state’s rogue dental board’s Gestapo tactics; Louisiana’s, however, remains unchecked

Posted in Auditor, Boards, Contracts, Corruption, Courts, Ethics, Finances, Governor's Office, Judges, Legislature, Legislators on November 18, 2016| 15 Comments »

The Republican governor of Nevada has done what Bobby Jindal for eight interminable years refused to do and what Gov. John Bel Edwards should have already done.

Gov. Brian Sandoval, saying, “There’s something not right here and it needs to be fixed,” ordered Nevada’s state dental board on Nov.8 to address—and fix—problems of corruption, bullying and extortion rampant in the board’s patient-complaint/resolution process.

A STORY in the Las Vegas Review-Journal sounded eerily familiar to a number of LouisianaVoice stories dating back to March 2014 about abuses perpetrated by the Louisiana State Board of Dentistry through harassment, intimidation, and exorbitant penalties—including ruined careers—for minor infractions and sometimes none at all.

https://louisianavoice.com/2014/03/07/state-board-employs-intimidation-harassment-to-generate-funds-to-pay-for-lucrative-contracts-worth-millions-of-dollars/

https://louisianavoice.com/2016/03/18/like-dental-board-louisiana-board-of-medical-examiners-survives-on-fines-and-incentive-to-punish/

https://louisianavoice.com/2014/03/23/appeal-court-slams-lsdb-tactics-in-reversing-kangaroo-court-license-revocation-board-attorney-rules-on-his-own-objection/

And should Edwards take it upon himself to rein in the rogue dental board, he may well also wish to take a long hard look at a few other boards that have gone off the reservation over the years.

  • Here are just a few that warrant a closer look:
  • The State Board of Cosmetology;
  • The Auctioneers Licensing Board;
  • The State Board of Medical Examiners;
  • The State Board of Examiners of Psychologists

Each of these boards has been the subject of considerable controversy over the manner in which they investigate complaints and assess penalties without giving their targets the benefit of the same due process to which accused criminals are entitled under 14th Amendment to the U.S. Constitution.

Several dentists and dental hygienists protested a $500,000 increase in the contract for the Nevada dental board’s outside legal counsel, John Hunt and their testimony quickly escalated to shouting a crying by those who said Hunt coerced them to acknowledge wrongdoing and to pay money to the dental board.

Several of them accused Hunt of benefitting from money collected by the board.

As we said earlier, eerily familiar.

https://louisianavoice.com/2015/11/16/dentistry-board-facing-difficult-future-because-of-policies-contracts-with-attorney-private-investigator-are-cancelled/

At least in Nevada, complaints by victims of the dental board led to action.

A legislative audit of the board concluded that the board imposed excessive penalties on those it was investigating and also took issue with the board’s handling of Hunt’s contract. The board’s handling of patient complaints, it said, left targets of investigations with the belief that they either had to accept a settlement agreement or risk steeper punishment if found guilty in a final board hearing.

“That’s where the allegation of extortion comes in,” State Assemblyman Glenn Trowbridge, a member of the subcommittee that conducted the audit, said in June. “Either pay me now or we’ll look into it deeper and you’ll pay me more.”

Again…eerily familiar.

https://louisianavoice.com/2016/07/18/case-of-slidell-dentist-illustrates-unbridled-power-of-dentistry-board-to-destroy-careers-for-sake-of-money/

Sandoval appoints the members of the dental board. He said the time has come for the 11-member board to address the problem. Citing his experience with other state boards during his political career, he said, “I’ve never seen …people as upset as they are.”

The board, following Sandoval’s scolding, postponed action on Hunt’s contract amendment.

A 1980 U.S. Supreme Court specifically addressed the issue of excessive penalties in the case of U.S. Secretary of Labor v. Jerrico, Inc.

In that case, the Supreme Court reduced a $103,000 penalty to $18,000 in that the higher penalty constituted an unconstitutional risk of bringing “impermissible factors into the prosecutorial decision.”

In an earlier, even more pointed decision, the Supreme Court ruled in 1973 that “board members’ pecuniary interest disqualified them from passing on issues.”

In citing an Alabama case in which the Board of Optometry revoked the licenses of all optometrists employed by corporations such as Lee Optical, the court said, “Because the Board of Optometry was composed solely of optometrists in private practice for their own account, the District Court concluded that success in the board’s efforts would possibly (contribute) to the personal benefit of members of the board, sufficiently so that in the opinion of the District Court, the Board was disqualified from hearing the charges filed against the appellees.

“It is sufficiently clear from our cases,” the court continued, “that those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes.”

As simple to understand as that ruling is, one must wonder why, 43 years later, the Louisiana Board of Dentistry and other licensing boards in the State of Louisiana are still allowed to operate their own respective fiefdoms with carte blanche.

Are their legal counsels not able to read and understand the law?

Is there not a single board member among them with the decency to say, “This isn’t right”?

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Missing checks, public records litigation, aborted deposition, and AG slapped with fine all in one confusing, muddled story

Posted in Attorney General, Corruption, Courts, Ethics, Fraud, Judges, Lawsuits, Politicians, Public Records, State Police, Transparency on November 16, 2016| 3 Comments »

This is a story with no readily apparent good guys.

It’s a story about charges of theft of heavy equipment.

It’s a story about thousands of dollars floating around unaccounted for by public officials.

It’s the story of the attorney general’s office abruptly halting a confrontational deposition.

It’s a story about a Baton Rouge judge having the decency and courage to impose (finally) a stiff financial penalty against a state agency over the agency’s failure to complete the deposition or to produce legally required public records.

It’s a story of how the superintendent of State Police was unable to account for the receipt of two checks totaling nearly $150,000 and how the state attorney general’s office and its former rogue investigator wound up with egg all over their already questionable reputations.

And, of course, it’s a story of how the taxpayer and not the public official responsible ultimately will bear the cost of those penalties.

It all began in May 2014 with the indictment of Joseph Palermo of Sulphur on five counts of possession of stolen things, destruction of serial numbers and forgery.

http://www.kplctv.com/story/25298149/five-count-indictment-unsealed-against-sulphur-businessman

Palermo previously got crossways with state police over operation of casinos in Calcasieu Parish and he settled that civil matter back in 1998 but prosecutors, apparently still nursing a grudge over the casino gambit, brought up the 1998 trouble in connection with his more recent problems. Things have a way of playing out that way for some people.

In February 2015, he pleaded guilty to misdemeanor charges of receiving “ill-gotten gains” in a plea bargain in which he agreed to paying civil penalties of $1.2 million over three years with expenses to the Calcasieu Parish District Attorney’s office coming off the top. After expenses, the $400,000 per year was to be divided equally between the Calcasieu DA, the attorney general and State Police ($133,333.34 each). An additional $14,792.55 was what remained after the district attorney’s expenses were paid.

Identical checks of $14,792.55 and $133,333.34 were then issued to Louisiana State Police and the attorney general’s office. State Police, however, initially had no record of receipt of the funds.

Moreover, neither of the checks to the attorney general’s office was ever negotiated and it took more than a little effort to get State Police Superintendent Mike Edmonson to acknowledge his office had received the money. State Police’s financial section has no record of the checks, nor is there any record of the checks having been deposited in state police accounts.

In February of this year, Palermo began efforts to obtain certain records from the attorney general’s office, specifically those pertaining to the criminal investigation of his case by Scott Bailey, then employed as an investigator for the attorney general’s office.

Bailey, in addition to being a central figure in the botched CNSI investigation of a couple of years back, holds the dubious distinction of being the investigator who photographed Jimmy Swaggart exiting his infamous rendezvous with the hooker in that seedy Metairie motel three decades ago. (Some claims to fame you just want to hang onto for whatever reasons).

Bailey resigned from the attorney general’s office the very day he was directed to provide all his time management records for all his investigations.

The records by Palermo from the attorney general were insufficient to meet the parameters of his request, so he tried again and this time he was met with a response that the records, after all, were exempt from public disclosure despite the investigation of Palermo having been completed for more than a year.

The legal back and forth jockeying continued with two separate legal actions by Palermo—one for public records and the other to force deposit of the checks into the court’s registry pending a determination of to whom the money actually belonged—being consolidated into a single lawsuit. Finally, it culminated in a deposition scheduled for October 27 in Lake Charles.

Alas, it was not to be.

State attorney Chester Cedars abruptly called an end to the deposition only a few minutes into the proceedings, acknowledging he was doing so at his own peril.

On Monday, 19th Judicial District Judge Don Johnson of Baton Rouge came down hard on the attorney general’s office and we would be less than honest if we didn’t admit we are delighted (so much for any pretense of objectivity).

It was such a beautiful order, we’re reproducing some of the wording here:

“Judgment is hereby entered herein in favor of Joseph R. Palermo, Jr. and against Jeff Landry, in his official capacity as the Attorney General of Louisiana, in the amount of twenty-five thousand and no/100 dollars ($25,000.00) payable within 30 days from November 14, 2016.”

Here is the judgment in its entirety.

One courtroom observer speculated that Cedars would likely take writs to the Louisiana Supreme Court on the matter of the amount of the fine.

That’s unlikely, however, because of Cedars’s own admission at the time he suspended Bailey’s deposition.

It is part of the transcript of the deposition and Cedars tells opposing counsel Christopher Whittington, “…I do so at the defendant’s peril. I fully understand that if I’m incorrect in the assertions and the law as I understand it, or in the facts as I understand it, then we are going to have to pay the appropriate sanctions.”

WHITTINGTON: “Okay. And we will move for those sanctions pursuant to Article 1469.”

http://www.laboards-commissions.com/MCBD.pdf

You have to wonder how that little on-the-record exchange and Judge Johnson’s ensuing fine are going to sit with Cedars’s boss, Attorney General Jeff Landry (Of course Landry has his own problems, having recently dodged service on a subpoena in the ongoing litigation with Gov. John Bel Edwards over the governor’s non-discriminatory executive order).

Now, if we can just find out what happened to those two checks after they arrived at State Police headquarters…

(Special thanks to Robert Burns for scurrying around and digging up valuable court documents for this story.)

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Cowardly Supreme Court sends message in LouisianaVoice matter: ‘don’t bother responding to public records requests’

Posted in Contracts, Corruption, Courts, DOA, Ethics, Governor's Office, Judges, Lawsuits, Legislature, Legislators, Media, Office of Group Benefits, Politicians, Public Records, State Agencies, Transparency on November 14, 2016| 6 Comments »

There are those who will label this post as sour grapes.

That’s okay. You can call it Tinker Bell, Rambo or anything you choose. I don’t care because it won’t change the fact that the Louisiana Supreme Court is dominated by gutless hypocrites.

There’s a guy in New Orleans who will agree with me even if no one else does.

His name is Ashton R. O’Dwyer, Jr. and he is an attorney. Or at least he was.

You see, like me, he sounded off to and about the wrong people—judges, to be precise—but unlike me, he was in a vulnerable position in that he was a partner at the prestigious New Orleans law firm Lemle & Kelleher. As such, anything he said about the judiciary could be—and was—met with instant retaliation.

O’Dwyer’s sin was that he had the idea to file a class action lawsuit against the U.S. Army Corps of Engineers over its lack of adequate preparedness for Hurricane Katrina. For good measure, in case it should be determined that the Corps was immune from litigation, he also named the State of Louisiana as a defendant for its pitiful oversight of the various politically inept and corrupt levee boards.

But other attorneys who were politically connected to the presiding judge wanted to be the plaintiff attorney. The judge eventually disqualified O’Dwyer and the rival attorney filed his suit. The only problem is the other attorney also represented the state so he could not, because of the obvious conflict of interests, file against the state.

It was little consolation to O’Dwyer that the Corps of Engineers was, as feared, determined to be immune from being sued which left the other attorney with no case. O’Dwyer was furious and went slightly ballistic.

He was eventually terminated by Lemle & Kelleher and things escalated quickly. Jailed on a questionable charge of making threats, he was held for mental evaluation. It was his second stint in jail. The first came because he refused to leave his St. Charles Avenue home during Katrina—even though a network news crew was allowed to remain in a house next door during the storm.

The courts were far from finished teaching him a lesson. Subjected to monitoring of his emails for years, suspended from the practice of law after being fired, he was later disbarred altogether. http://www.tulanelink.com/stories/o’dwyer_11a.htm

Today, O’Dwyer is not only fired, suspended and disbarred, but also bankrupt—all because he refused to hold his tongue. And today, he still won’t shut up.

http://www.nola.com/opinions/index.ssf/2010/12/disbarred_attorney_not_as_craz.html

After all, what else can they do to him?

Fast forward to November 7, 2016.

Among the writ applications denied by the Louisiana Supreme Court was Case No. 2016-C -1263 (TOM ASWELL v. THE DIVISION OF ADMINISTRATION, OF THE STATE OF LOUISIANA AND KRISTY NICHOLS, INDIVIDUALLY AND AS THE COMMISSIONER OF ADMINISTRATION). http://www.lasc.org/news_releases/2016/2016-065.asp

I filed my writ after the First Circuit Court of Appeal in an equally cowardly act, struck down the penalties against Nichols while acknowledging that the state was negligent in complying to our public records request in a timely manner.

As a refresher, here’s what happened. With the Division of Administration under Nichols already dragging its feet with several pending requests we had submitted, we decided to conduct a test to see if we were being targeted via slow compliance.

In October 2014, we submitted a detailed request for information pertaining to a complicated third party administrator contract between the Office of Group Benefits and a California bill processing firm. On the same day, we had a friendly legislator (who asked not to be named) submit an identical request through the House Legislative Services Office.

The House member received the requested information the very next day. Again, that was in October 2014. In January 2015, I still had not received the documents so I filed suit. Kristy Nichols then had a CD containing the information delivered to my attorney, J. Arthur Smith, III, the day after the suit was filed.

By our calculations, with state law providing penalties of $100 per day for failure to comply to the state’s public records law (remember: Bobby Jindal was touting the state for its “gold standard of transparency), the Division of Administration owed us about $40,000, including that request as well as others that were still outstanding.

District Court Judge Mike Caldwell, in his infinite wisdom, awarded us something on the order of $1200 and Kristy appealed. The First Circuit gutted even that award and we applied for writs to the Supreme Court.

Among those on the Louisiana Supreme Court who would have granted my writ were Jeannette Knoll of the Third District, Jeff Hughes of the Fifth District and John Weimer of the Sixth District. For that, I thank them.

The brain-dead justices who declined to do the right thing, who distorted the state’s public records law to their own satisfaction and who showed they possess no moral compass insofar as the public’s right to know is concerned were Chief Justice Bernette Johnson of the Seventh District, Greg Guidry of the First District, Scott Crichton of the Second District, and Marcus Clark of the Fourth District. For that, I thumb my nose at them.

Let’s recap: I’m not an attorney, I’m retired, and for the moment, the First Amendment, which guarantees my freedom of speech, is still firmly intact. Moreover, since Supreme Court justices are elected, that makes them politicians first, and judges second, which means their title of justices takes on about as much significance as a justice of the peace as far as I’m concerned. They are no more or any less human than anyone else who toils at an occupation. They are mortals endowed with no greater wisdom than my grandfather who had a sixth-grade education. (In fact, truth be known, he was probably light years ahead of most lawyers in terms of moral wisdom.)

In short, the Supreme Court jusrtices can’t do a damned thing to me for calling them imbecilic morons.

Now, lest you think this diatribe is about me, be assured it most definitely is not. It also is not about LouisianaVoice. Nor is it about $1200 in penalties—or even $40,000. The $1200 awarded by Judge Caldwell will neither make me nor break me.

This boneheaded decision, from district court all the way up to the Supreme Court’s decision to deny writs, is about something much larger than me, LouisianaVoice or $1200.

This is about the public’s right to request—and obtain—information about what its government is doing, how it is spending the taxpayers’ dollars, and how its government is meeting—or failing to meet—its responsibility to the public it is supposed to be serving. This rant also raises the obvious question: what purpose do laws serve if they are not enforced? Indeed, what use are judges (other than to look wise when photographed in their robes for their official portraits—at taxpayer expense, of course) when they selectively ignore the law?

With the manner in which our litigation was mangled by the judiciary, governmental agencies and those who run them—from the governor down to the mayors of Shongaloo and Paincourtville—may now take their cue from Case No. 2016-C -1263 (TOM ASWELL v. THE DIVISION OF ADMINISTRATION, OF THE STATE OF LOUISIANA AND KRISTY NICHOLS, INDIVIDUALLY AND AS THE COMMISSIONER OF ADMINISTRATION) and provide as much—or as little—as they choose in the way of public records without fear of financial penalties.

The only recourse we have at this point is to find another friendly legislator to write—and a friendly governor to support—new legislation tightening and re-defining the public records laws and the public’s right to know what its elected and appointed officials are doing in the name of representation of constituents.

We have the friendly governor, we believe, as evidenced by John Bel Edwards’s office prompt response to the public records requests we have submitted to him and to the Division of Administration.

So now, like Diogenes, we are seeking an honest man in the form of a legislator who will take on a difficult, if not impossible task.

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Dept. of Corrections touts accreditation from dubious organization with ties to Cain, Secretary Jimmy LeBlanc

Posted in Corruption, Courts, Ethics, Judges, Prison on October 14, 2016| 4 Comments »

After all the negative publicity about former Angola Warden Burl Cain, Thursday’s news release was almost enough to restore your faith in the Louisiana Department of Corrections.

That is, until you peel back the layers and take a deeper look beneath the typical hype that regularly comes out of state agencies in order to put them in the best light.

Like almost everything political, Rule One is follow the money. Rule Two is see Rule One.

The glowing news release trumpeted the news that auditors from the American Correctional Association (ACA) had given “high marks” to three Louisiana correctional facilities.

The release touted the 100 percent grades in mandatory standards attained by Louisiana State Penitentiary at Angola, David C. Knapps correctional Officer Training Academy, and Raymond Laborde Correctional Center. Knapps also received a 100 percent rating in non-mandatory standards and Angola and Laborde each received 93 percent in non-mandatory standards.

“ACA audits are done every three years. Other Louisiana state prisons not audited during this cycle will be re-audited in future cycles,” the news release concluded.

But what is accreditation from ACA really worth?

And how much did Department of Corrections Secretary Jimmy LeBlanc pay for the favorable ratings?

The likely answers to those questions are, in order: not much and plenty.

http://www.prisonpolicy.org/aca.html

LouisianaVoice, almost three years to the day (Oct. 11, 2013) published harsh criticisms of ACA’s methods of accreditation.

In 2010, Corrections Corporation of America (CCA) trumpeted the re-accreditation of five of its private prisons by ACA. But what CCA did not reveal was that it had paid ACA more than $22,000 for those five accreditations, that CCA employees serve as ACA auditors, that CCA is a major sponsor of ACA events or worse, and that accredited CCA facilities had experienced major security problems.

The ACA relies heavily on such fees; it reported receiving more than $4.5 million in accreditation fees in 2011 – almost half its total revenue that year. The organization thus has a financial incentive to provide as many accreditations as possible.

Notably, the accreditation process is basically a paper review. The ACA does not provide oversight or ongoing monitoring of correctional facilities, but only verifies whether a facility has policies that comply with the ACA’s self-promulgated standards at the time of accreditation. Following initial accreditation, facilities are re-accredited at three-year intervals.

But how do the courts view ACA accreditation – and comparable accreditation of prison and jail medical services by the National Commission on Correctional Health Care (NCCHC) – both in terms of claims alleging violations of accreditation standards and as a defense by prison officials?

The U.S. Supreme Court noted in Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979) that accreditation does not determine constitutionality. With respect to standards established by organizations such as the American Correctional Association, the Court wrote: “[W]hile the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question.” https://www.prisonlegalnews.org/news/2014/oct/10/how-courts-view-aca-accreditation/

The standards are established by the ACA with no oversight by government agencies, and the organization basically sells accreditation by charging fees ranging from $8,100 to $19,500, depending on the number of days and auditors involved and the number of facilities being accredited.

Perhaps it is only coincidence that LeBlanc is a member of the ACA’s Commission on Accreditation for Corrections  (go to the second page of this link) or that Burl Cain is still listed as a member of ACA’s Executive Committee.

One of ACA’s past presidents, Richard Stalder, while serving as Louisiana State Corrections Secretary in 1993, canceled spending on psychiatric counseling for troubled teens so that he could give out $2.7 million in raises to his staff, according to New Orleans Times-Picayune reporter Jack Wardlaw.

In 1998, the new Jena Juvenile Center came under fire for widespread problems, including a near-riot, poor teaching and security and physical abuse and in 1999 the juvenile facility in Tallulah was taken under state control after five years of repeated problems with private ownership despite its having received accreditation and a positive report only six months earlier from ACA and Stalder.

By 1995, the ACA accredited all 12 prisons in Louisiana, passing the last two with a 100 scores. That year, more than 125 prisoners sued Stalder for mistreatment within the prisons. Meanwhile, only a month after Angola prison of Louisiana was accredited, it was reported that around $32 million were needed for repairs so the prison could meet safety requirements, according to Baton Rouge Advocate reporter James Minton.

Stalder rejected all the claims, saying that he and his staff deserved “a pat on the back,” but in June of 1995, Federal Judge Frank Polozola criticized Stalder for the way in which he ran the state prison system.

“Louisiana incarcerates a higher proportion of our citizens than almost any other state,” Stalder said in 1995. “Yet we continue to be frustrated by the reality that many violent and dangerous people who should be locked up are not.”

Later that year, a doctor and a nurse reported severe problems with medical treatment at Angola. Prisoners with fractures were splinted, and then not seen for months, leading to bone deformities. Air from a tuberculosis ward was drawn into the main infirmary. A Justice Department report also found the prison’s medical records to be in terrible shape, according to Advocate reporter Fred Kalmbach.

In June of 1995, Judge Frank Polozola was critical of Stalder for his efforts to hold more inmates in the parish and private prisons of Louisiana, suggesting that Stalder was doing so in order to receive more money from the state government, which pays the sheriffs $21 per day per inmate in a private or parish prison, Minton wrote.

Polozola accused Stalder of catering to Louisiana’s sheriffs by refusing to allow state prisoners, who were supposed to be in the private prisons only temporarily, to return to the state prisons.

Just months later, Stalder was in trouble again when he allowed a can relabeling plant to open illegally at the Angola Prison. He was fined $500. Inmate William Kissinger, a legal adviser to other inmates, then sued Stalder for $600,000 after he reported the relabeling plant to authorities and was consequently removed from Angola prison and put on a prison farm.

The prison at Angola, meanwhile, received the same score from the ACA in 1996 as it did when it was first accredited in 1993.

Although the Louisiana state juvenile facilities attracted attention during 1997 for reports of abuse from guards at the facilities, Stalder himself was not in the spotlight until a private investigator found evidence that Stalder had allowed a priest who had been imprisoned for child molestation to receive special treatment at Wade correctional facility while Stalder was a warden there.

Because Jena’s goal was to meet the accreditation standards, The ACA was also criticized and characterized as “not highly respected…they will judge a facility on whether they have policies and procedures in written form,” wrote Times-Picayune reporter Steve Ritea.

http://www.prisonsucks.com/ACA/ACAofficers.html

We can’t wait ACA’s re-audit of the other state prisons.

Any bets on what those scores will be?

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John White’s misleading explanation of outcome of litigation against 2 private citizens over records is pure gooneybabble

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

“Just because a cat has kittens in the oven doesn’t make them biscuits.”

It’s a quote attributed to Malcolm X, reprised by Kelsey Grammer in an episode of the number one sitcom Frasier, but actually has its origins in New England. It means, “Just because you were born here, it doesn’t make you one of us.”

It could just as easily be updated to apply to State Superintendent of Education John White’s lame explanation of a settlement of a lawsuit by the Louisiana Department of Education (LDOE) against citizens James Finney, a technical college math instructor and Mike Deshotels, a former educator and past executive director of the Louisiana Association of Educators.

White was quoted in the Baton Rouge Advocate as saying the ruling by 19th Judicial District Judge Janice Clark “merely resolved what had been a conflict between two laws” because federal law instructed the department not to release data that could be used to personally identify a child while state law mandated the disclosure of all public records.

http://www.theadvocate.com/baton_rouge/news/courts/article_76e860ca-8bd9-11e6-9963-cf5829bedcf3.html?sr_source=lift_amplify

Bull feathers.

Department legal counsel Joan Hunt said in a Wednesday email to members of the state Board of Elementary and Secondary Education (BESE) that a declaratory judgment was sought to resolve “tension” between free disclosure of public records and protection of student information according to federal law.

Balderdash.

Neither Deshotels nor Finney ever requested information that would identify a single student.

Period.

And John White knew that. Period.

Since becoming Superintendent of Education in January 2012, White has made a career of stalling on compliance with public records requests if not denying them outright.

LouisianaVoice was once forced to sue white over public records and won an award of $2800 ($100 per day for each day delayed per request), plus court costs. The only downside of that judgment was that White was not held personally liable, meaning the $2800 and court costs were picked up by Louisiana taxpayers.

But in suing two Louisiana activist citizens (who admittedly had been something of a nuisance to White with their monitoring of the department), White reached a new low in attempting to avoid being held accountable for the manner in which he runs the department.

His lawsuit, in terms of disgraceful acts, ranks right down there with those judges in Monroe who sued the Ouachita Citizen, a newspaper in West Monroe. The newspaper’s sin? It made public records requests of the court.

Do we detect a disturbing trend here? You bet we do. The Louisiana Department of Education, district courts, and other public bodies have virtually unlimited financial resources at their disposal and most, like the Department of Education, have in-house legal counsel like Joan Hunt. They can initiate lengthy—and costly—legal action against any citizen and people like John White and district judges don’t have to pay a penny of the costs of litigation, courtesy of Louisiana taxpayers.

Private citizens do not enjoy that same advantage. It’s not a level playing field. And even if the public body does not sue, it can drag its heels on compliance, forcing the citizen making the request to either give up or enter into expensive legal action with no guarantee the court will uphold the public’s right to know.

At last Monday’s hearing, Judge Clark let it be known that her patience was wearing thin with public officials who attempt to hide behind legal maneuvers in an attempt to avoid compliance with the law.

The LDOE attorney opened by saying the department had “informal guidance” from the federal government that “we do not have to comply with FOIA (Freedom of Information Act) requests.”

Perhaps sensing the mood of the court, the state withdrew its demands for attorney fees from Deshotels and Finney, adding that “only two people are interested in the data.”

Judge Clark said it was an “improper purpose” to deny information to the public as a retaliatory action.

“Counsel should meet and work this out,” she said. “The public (meaning the court) takes a dim view of public officials using public resources to delay compliance with public records laws.”

Deshotels attorneys J. Arthur Smith and Chris Shows met outside chambers for more than two hours with LDOE attorneys but were unable to arrive at an agreement on the release of the requested documents.

When informed of the continued impasse, Judge Clark, visibly angry, said, “I am issuing a subpoena for John White to be in court at 9:30 tomorrow (Wednesday) morning for cross examination.”

When White got word of that, it was something akin to Moses coming down from the mountain with the 10 Commandments. Suddenly minds came together and miraculously, there was accord and LDOE agreed to three stipulations which settled the suit filed in April by White and the department against Deshotels and Finney. http://www.theadvocate.com/baton_rouge/news/education/article_536e2fac-b5e2-575c-87f6-1a991bf0f455.html?sr_source=lift_amplify

The first stipulation mandates that the suppression of data in the economically disadvantaged and English language learner or English proficiency sub-groups of the Education Department’s multi-stat reports is not in compliance with the Louisiana Public Records Act.

The department agreed not to suppress student enrollment data in responding to requests made under the act in the second stipulation.

The final stipulation says requested data will be made available to the public dating back to 2006.

Deshotels said the declaratory judgment filed against him and Finney was never about clarifying the legal issues relative to certain public records and student privacy as claimed by White.

Instead, he said White’s action was “purely an attempt to discourage citizens from seeking to independently research the claims and conclusions made by White and his staff.” “If citizens are forced to face legal challenges and high legal fees for seeking public records, the Department can continue to manipulate and spin what should be factual information about the operation of our schools.”

Sadly, Judge Clark’s ruling will do little to expedite timely compliance with future public records requests to other state agencies.

Even as this is being written, former commissioner of administration Kristy Nichols has already cost the state more than the original judgment against her in another lawsuit by LouisianaVoice.

LouisianaVoice received a pittance in a lawsuit in which the Division of Administration (DOA) under Nichols had dragged its heels for more than three months on several separate public records requests.

LouisianaVoice calculated DOA owed some $40,000 in penalties for non-compliance but was awarded less than $2,000, plus costs and legal fees, by the court. Even then Nichols appealed the decision. And although the court held Nichols personally liable, meaning she alone was responsible for the penalty, the state is picking up the tab for that appeal, which partially upheld the district court ruling.

Nichols, still not satisfied, and still not paying a cent of the legal costs (though LouisianaVoice is paying its legal costs, applied for writs to the Louisiana Supreme Court.

As of this date, the state has spent far, far more than the penalty imposed on it in trying to avoid paying the penalty and LouisianaVoice has spent more than it will ever be awarded, provided the Supreme Court even upholds the lower court.

And while the obvious question is: Is throwing good money after bad a wise way to spend state funds? An original penalty of less than $2000 has now cost the state several times that in defense costs and the tab is still running.

And John White’s obfuscating dribble notwithstanding, that’s what Louisiana citizens are faced with in trying to hold its state government accountable.

 

 

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