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LSP denies 4th JDC report; claims investigation is ongoing while OIG says it’s over and gives report to LouisianaVoice

Posted in Attorney General, Corruption, Courts, Crime, Ethics, Fraud, Guest Columnist, Judges, Lawsuits, State Police on May 11, 2016| 9 Comments »

 isBy Tom Aswell and Ken Booth

If there was ever any question that there is a deliberate ongoing effort by the Louisiana State Police (LSP) to deny access to public records, those doubts were laid to rest by a pair of responses to LouisianaVoice—one from LSP and the other from the Office of Inspector General.

It all began innocently enough with a routine request made for files into the turmoil and legal battle among judges of the 4th Judicial District Court which includes the parishes of Ouachita and Morehouse.

Judge Sharon Marchman filed suit against four of her colleagues on the 4th JDC bench over her claims that they were covering for a legal clerk who Marchman suspected was not at work during times she was being paid. https://louisianavoice.com/2016/05/05/disorder-in-the-court-guest-columnist-ken-booth-reveals-disturbing-events-that-taint-several-judges-of-4th-jdc/

Oddly enough, the clerk is the highest-paid law clerk in the 4th JDC—despite the fact that she is not even an attorney, normally the number one criteria for a law clerk.

The clerk, Allyson Campbell, is the sister of prominent Monroe trial lawyer Catherine Creed, the daughter of George Campbell, regional president of Regions Bank who in turn is married to the daughter of another prominent attorney, Billy Boles who was instrumental in the growth of Century Telephone and who is a major contributor to various political campaigns.

Another major screw-up in 4th Judicial District Court (and again Judge Larry Jefferson is right in the middle of it all)

State Police were reported last June to be conducting a joint investigation, along with the OIG, but no report on that investigation has ever been issued by either agency.

So naturally, in keeping with our uncompromising belief in the public’s right to know, we asked.

Here is the identical request made by LouisianaVoice to both agencies on May 5:

Pursuant to the Public Records Act of Louisiana (R.S. 44:1 et seq.), I respectfully request the following information:

Please allow me to review the file on the Fourth Judicial District 2015 investigation.

Here is the response received on Wednesday, May 11, from LSP:

Mr. Aswell, I have been advised that the district attorney for the 4th JDC considers this an open matter as he is awaiting additional information.  Therefore, any responsive records maintained by LSP are not subject to release at this time as they are exempt from disclosure pursuant to R.S. 44:3(A)(1). With kindest professional regards, I am,

Sincerely,

Michele M. Giroir

Attorney Supervisor

But wait. A full day before receiving the LSP denial (on Tuesday, May 10) we received quite a different response from the OIG. OIG 4TH JDC REPORT

On the first page, OIG General Counsel Joseph Lotwick explained that “records prepared or obtained by the Inspector General in connection with investigations conducted by the Inspector General shall be deemed confidential and protected from disclosure.”

But Lotwick, in that same letter, also said he was attaching a copy of an April 15 letter from Inspector General Stephen Street to 4th JDC District Attorney Jerry Jones “as it is a public record.” The five-paragraph letter of nearly a month ago noted that the 4th JDC management controls “did not make possible a determination of the hours Ms. Campbell worked on any given workday. Investigators confirmed that alleged violations of policy applicable to Ms. Campbell were investigaged (sic) and addressed by 4th JDC authorities.

“Because the available facts do not provide sufficient cause for the arrest of Ms. Campbell for any criminal offense, we are closing our file and taking no further action in this matter.”

So, despite claims by LSP that the investigation remains open, Louisiana’s Inspector General Stephen Street says an investigation by his department along with detectives from the state police found nothing wrong with the work hours of a law clerk for the 4th Judicial District Court.

A state audit had pointed to possible payroll fraud when an inspection of time sheets revealed the chief law clerk had turned in time sheets for work on days she was not even at the courthouse. Those time sheets were approved by her supervising judges.

The 41-year-old law clerk, Allyson Campbell was also a society columnist for the News-Star, the Monroe daily newspaper at the time.

According to lawsuits filed against her by an attorney alleging she destroyed or concealed files in his cases before the court, Campbell, who indicated she might be doing her job at a Monroe restaurant/bar frequented by lawyers, business people and Judges.

Documents show one picture obviously taken in a restaurant was captioned “Seafood nachos at the office.”

In 2014 Campbell published a column entitled A modern guide to handle your scandal, declaring “half the fun is getting there and the other half is in the fix.”

“Send it out,” she wrote. “Lies, half-truths, gorilla dust, whatever you’ve got. You’re no one until someone is out to get you.” She continued, “That special somebody cared enough to try and blacken your reputation and went and turned you into a household name? Bravo. You’re doing something right.”

The allegedly falsified Campbell time sheets, said to have been borne out by courthouse security camera video showing she was a no-show there on the questioned “work days,” and a subsequent allegation of cover-up by four Ouachita Parish District Court Judges, prompted Judge Marchman, to file a federal court lawsuit against all of them for retaliating against her for “trying to expose Campbell’s history of payroll fraud and document destruction” while acting under color of law.

Whether Marchman was aware is not known, but Street had by then already decided interviews his office had conducted at the courthouse led him to conclude “the available facts do not provide sufficient cause for the arrest of Ms. Campbell for any criminal office, [and] we are closing our file and taking no further action in this matter.

In his April 15 letter to Jones, Street outlined how “several 4th Judicial District Judges, as well as other local attorneys, “the current and former court administrator, employees of the Clerk of Court, (Louise Bond),” and other court employees and assistants, as well as Campbell herself, were interviewed. Campbell, he wrote, had denied destroying or hiding or destroying any court records or pleadings.”

District Attorney Jones at the outset referred the allegations of wrongdoing to the State Police who wound up working in concert with the IG’s north Louisiana investigator, Heath Humble.

Since then, the DA has consistently referred all questions regarding the status of the case to the office of the Louisiana Attorney General, Jeff Landry.

Accordingly, my public records request for documentation or any statement regarding the status of the investigation long since closed by the local and state investigators was answered by Shannon Dirmann, an Assistant Attorney General who wrote on May 9: “Our office is in the process of determining what, if any, records are subject to this request, and, if so, whether any privileges or exemptions apply. This may take some time. You will be notified whether records have been located and are responsive.” (Emphasis added) In other words, “we’ll get back to you.”

Interesting indeed, since Lotwick responded to a similar records request one day later (on May 10) from LouisianaVoice with a copy of Street’s letter to Jones—“as it is a public record.”

“I trust that this response is sufficient,” he wrote in his letter to LouisianaVoice.

Well, certainly more sufficient—and much more informative than anything provided by LSP.

 

 

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Monroe City Court clerk’s office unable to locate appellate court’s 18-year-old reversal of Monroe veteran’s sentence

Posted in Corruption, Courts, Ethics, Judges, Transparency on May 8, 2016| Leave a Comment »

The American justice system is designed to protect the rights of every citizen with no consideration given to gender, race, or social standing. Even those accused of the most heinous crimes are entitled to legal counsel and a fair trial.

Or so we were told in high school civics class.

But it’s no secret that justice is not dispensed evenly in our court system. Some can afford the very best in legal representation (some even contribute to the election campaigns of judges). Others must rely on understaffed, underpaid public defenders for their legal counsel.

Despite what we learned in school, it’s not a level playing field.

Monroe resident Lester Paster is learning that the hard way.

Before we go any further, it should be pointed out that Paster is not a criminal and his skirmishes with the law are misdemeanors and have been relegated to Monroe City Court.

City court isn’t exactly the Supreme Court, but the court level isn’t supposed to matter. (Sheldon Cooper, everyone’s favorite nerd on The Big Bang Theory, in one of the funnier episodes of that show, referred to a traffic court judge as presiding over “the kiddie table” of his profession, a remark that landed him in a holding cell for a while.)

Paster, who picketed Monroe City Court nearly 19 years ago, on July 9, 1997, was cited for LA. R.S. 14:401, which prohibits “Demonstrations in or near building housing a court of occupied as residence by judge, juror, witness or court officer.”

For violating that obscure law, he was sentenced to a fine of $50. In default of payment, he was sentenced to 30 days in jail with all but five days suspended.

He appealed and the Second Circuit Court of Appeal noted that the offense carries a fine of up to $5,000 or imprisonment of up to one year, or both.

A defendant charged with a misdemeanor in which the punishment may be a fined in excess of $1,000 or imprisonment for more than six months “shall be tried by a jury of six jurors, all of whom must concur to render a verdict,” the First Circuit decision said.

The appeal court further said the defendant “Must have been advised of and waived his right to a jury trial before proceeding to trial” and that the accused in a criminal proceeding “has the right to assistance of counsel for his defense.”

Because the record failed to reflect that Paster was advised of his right to legal counsel or of his right to a trial by jury or that he ever waived those rights, the Second Circuit set aside Paster’s conviction and sentence and remanded it back to Monroe City Court “for further proceedings consistent with this opinion.”

That opinion was handed down on Dec. 22, 1997. http://veterans4justice.org/Appeal_Judgement.html

So what has happened to Paster’s case in the ensuing 18 years, four months?

Well, no one seems to know.

Paster has checked with the Monroe City Court clerk but the clerk’s office doesn’t seem to have any record of his case. No record of his trial and no record of the Second Circuit’s decision.

“My entire record has disappeared,” Paster told LouisianaVoice.

It’s not the kind of sloppy record keeping that one would think the Second Circuit would take lightly.

What’s the statute of limitations on a misdemeanor?

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Disorder in the Court! Guest columnist Ken Booth reveals disturbing occurences that taint several judges of 4th JDC

Posted in Corruption, Courts, Ethics, Judges, Lawsuits, Media, State Police, TV News on May 5, 2016| 4 Comments »

Below is a guest column by retired investigative reporter Ken Booth, formerly of Monroe and KNOE-TV but now living in sun-drenched retirement in Arizona.

A bit of explanation for this column is in order. For some time now, a feud has been brewing in 4th Judicial District Court which includes the parishes of Ouachita and Morehouse.

The dispute, which has been covered extensively by the Ouachita Citizen but largely ignored by other media in North Louisiana, is between Judge Sharon Ingram Marchman and four other judges of the 4th JDC and centers around a clerk for the 4th JDC, Allyson Campbell, whose attendance at her job has been brought into question by Judge Marchman.

Here is a copy of the MARCHMAN LAWSUIT filed in U.S Federal Court, Western District of Louisiana.

 

By Ken Booth

Guest columnist

This is troubling stuff indeed. When the Ouachita Parish court system not only fails to make sure justice is served fairly but goes so far as to allegedly try to cover up destruction of public documents which might prove such failure…. Well, we have more than just irony. Much more.

In what is believed to be an unprecedented move, a sitting 4th Judicial District Court judge has sued four fellow judges and their law clerk in federal court for “cover-up” of law clerk Allyson Campbell’s “history of wrong doing” as well as attempts to expose it all.

Judge Sharon Marchman’s suit grows from a report from the Louisiana Legislative Auditor last year which found some employees of the Court may have been paid for work never performed with time sheets submitted indicating they were there working when in fact they were somewhere else. If that happened that’s payroll fraud, the kind that got former Monroe City Engineer Sinyale Morrison and one of her employees in deep legal trouble.

The relevant part of the audit is found on page 41:

Condition

 Our audit procedures disclosed that some employees may have received compensation when they were not working. It appears that hours reported to payroll on time sheets might have been mis-classified as time worked instead of leave time used. This condition was detected by management and investigated internally before the audit. However, the control system did not detect the condition.

Criteria

Various state statues including, but not limited to, La. R.S. 14:138, govern the payment of public employees.

Internal control procedures must be designed to reduce to an acceptable level the risk that employees could be compensated for time not actually worked.

Cause

Internal control procedures may have failed to detect inaccuracies on time sheets submitted by employees.

Effect

The condition has at least the following effects:

  1. State law may have been violated.
  2. The Court may have compensated some employees for time that they did not work.
  3. If the Court compensated an employee(s) for time that was not worked, that employee also accumulated leave time that was not earned.

41

Here is the full AUDIT report.

State police were reported last June to be investigating the 4th JDC, but no report has ever been issued by LSP on that investigation.

http://www.knoe.com/home/headlines/LSP-investigating-4th-Judicial-District-Court-317689071.html

But it’s the subsequent attempt to squelch any attempt by the public to gain access to these and other related court records that is at the heart of Judge Marchman’s petition who asserts her efforts toward full disclosure have made her a “pariah” in the courthouse, hated and rejected by fellow judges and others.

But that audit and the Marchman suit are but parts of the court saga that seemingly continues to write itself while unfolding like a long-legged crane trying to land in deep soft mud.

If law clerk Allyson Campbell was ever disciplined for misfiling time sheets for leave time taken is not known. Those records have been blocked from release by judicial order of the 4th JDC citing “privacy concerns.” The Ouachita Citizen newspaper had sought these public records and once refused, filed a criminal complaint with the District Attorney.

The Court then sued the newspaper for seeking the release of records which under Louisiana law should be available for public copying or inspection.

A search has revealed nowhere else can be found a case in which a state District Court has sued the news media for seeking to publish public documents. That development, as stunning as it might have been, went completely unreported by other Ouachita Parish media, including two television stations and a daily newspaper owned by Gannett.

In the meantime, District Attorney Jerry Jones requested the Louisiana State Police look into the audit’s finding of possible payroll fraud. Their probe was joined by the state Inspector General. Their findings, turned over to Jones, were forwarded to the Louisiana Attorney General.

Highly partisan scuttlebutt among the higher-ups around the courthouse has it that no wrongdoing was uncovered by the joint investigation but no official report or statement verifying that has to this date been released by the Attorney General.

Whether Judge Wilson Rambo’s law clerk Allyson Campbell got paid for work not performed is but one issue.

Rather, the preponderance of allegations appearing in lawsuits stemming from this mess is that the law clerk involved is demonstrated to have been beyond supervision “let alone discipline, and furthermore defendant Judges were covering up her actions.”

A litigant in matters already before the court, Stanley R. Palowsky, III sued her individually along with five 4th District Court Judges last July accusing Campbell of hiding or shredding filings in his case(s) before Judge Rambo.

Palowsky’s suit alleged the Clerk of Court could not locate as many as 52 different writ applications which had been “missing” for over a year and that Campbell “who was clerking for Defendant Sharp at the time, had used the applications as an end table in her office.”

BROKEN GAVEL?

After the missing 52 writ applications were discovered in Campbell’s office she was reassigned to law clerk duties for Judge Fred Amman who – the Palowsky suit charges—“is her close friend and personal confidant” and Rambo, who was at the time presiding over a Palowsky civil suit before the court, a case in which the missing documents had figured.

Curiously, when your correspondent sought an extra copy of this suit quoted here from the Clerk of Court’s office, the suit had been ‘sealed’ and removed from public view. Fortunately, for the public’s interest, that horse was already out of the barn, so as to speak.

The Palowsky lawsuit asserted that Campbell was apparently the only subject of the Auditor’s report on suspected payroll fraud and that “her office reportedly went vacant for days, if not weeks, at a time.”

The petition went on to allege that Campbell had posted several photos on her Facebook page which “indicated that she…did her job in restaurants and/or bars” while drinking.

Palowsky accused her of identifying her food and drink as having been consumed “at the office.”

The ‘sealed’ petition alleged that Campbell “…has a history of destroying and /or concealing court documents and Defendant Judges have covered this up” to protect her.

In one case cited as far back as 2012, Monroe Attorney Cody Rials was said to have complained to Judge Carl Sharp that he had “observed Campbell bragging in a local bar that she had destroyed Rials’ court document” in a case he had pending before Judge Sharp. Although Sharp was said to have found Rials’ story credible, the matter went no further according to the petition.

Campbell, at the time a society columnist for the daily newspaper, wrote a 2014 column called “A modern guide to handle your scandal,” according to the Palowski pleadings.

The court document quoted the Campbell column as having declared that “half the fun is getting there and the other half is in the fix.”

When Rials put his complaint about records destruction in writing, Judges Jones and Sharp interviewed an “unbiased disinterested witness who personally saw and heard Campbell sitting in a bar boasting about shredding Rials’ document so that Sharp would not review it.”

The witness told Sharp and Jones that Campbell told him directly that she had “taken great pleasure in shredding Rials’ judgement” and that she had given Rials a “legal _ _ _ _ ing.”

Courthouse workers have confided that during this approximate time frame they once hauled three roller cans filled with bagged shredded papers to the dumpster located between the courthouse and its annex. There is no way, of course, to know exactly what may have been in those bags which had been retrieved from the basement of the courthouse. However, when the shredding claims surfaced last Summer, the workers discussed whether some or all of it had been what they had disposed of.

That eyewitness to the alleged barroom bragging  has been identified to your correspondent as Monroe attorney Joey Grassi, who was deemed by Jones and Sharp, according to the Palowsky suit, to be “credible.“ However, that investigation also was shut off.

Key fob and in-house videos have reportedly showed that Campbell had not entered the courthouse on any of seven different days in the first part of 2014 even though her time sheets indicated she was there working. Those apparent false time sheets had been approved by Judges Rambo and Amman, which at most private businesses would be considered a firing offense.

THE MARCHMAN LAWSUIT

Judge Sharon Marchman has exposed what she says is a continued cover-up of law clerk Campbell’s actions. To that end she has filed a 33-page federal court civil lawsuit against Campbell, Campbell’s attorney, four fellow jurists and their attorney, and the former Louisiana Attorney-General Buddy Caldwell and his attorney.

In it she claims the named Judges of the 4th District Court, acting under color of law, have retaliated against her because she has opposed their plan to continue their “long-time protection of defendant Campbell,” who has been at the pertinent times mentioned supervised by Judges Rambo, Sharp and Amman.

She calls it a concerted action and conspiracy to hide Campbell “has committed payroll fraud and has destroyed or concealed court documents.” Her suit alleges the defendants have “intentionally withheld information and production of documents from authorities and persons making public records requests.”

Since they were all acting in an administrative capacity, none of them are entitled judicial immunity, she said.

Marchman outlined a pattern of retaliation she says has been carried out against her including “threatening, intimidating, coercing, ridiculing, taunting, harassing, alienating and making false accusations of wrongdoing” against her.

On one occasion last September, according to the Marchman lawsuit, Judge Rambo intentionally walked into her as he as getting off the elevator. The exact words in the petition: “The physical contact was done intentionally.”

By the end of last year after some favorable articles about Judge Marchman appeared, the Judges meeting as a group or en banc ruled the chief judge had to approve all videos and photographs taken in the courthouse. Marchman maintains that was part of a vendetta against her to deny to her any positive press attention, all of this growing out of the alleged unlawful actions of Campbell regarding payroll and documents and its subsequent cover-up.

Shreveport Federal Judge S. Maurice Hicks has been assigned to preside over Marchman’s lawsuit. Whether it will be heard at the federal courthouse in Monroe or Shreveport is not known at this time.

Ironically, Judge Hicks previously presided over a case called “Broken Gavel” in which two Caddo Parish judges were convicted of taking bribes for judicial favors. He sentenced one of them to ten years in the pen and the other five years.

All of this stew of controversies has prompted more than one lawsuit alleging repeated attempts to impede the administration of justice at the Ouachita Parish Louisiana Courthouse. With the exception of the Ouachita Citizen -which until recently was alone in reporting any of it- it all appears to have been too intellectually challenging for other local media.

These developments, however, have attracted newspaper and other coverage outside Ouachita Parish and in some national legal blogs such as ABOVE THE LAW, an American blog that gives news and commentary about the U.S. legal industry, which observed on September 3, 2015:

“Drinking on the job -especially while employed by the taxpayers- is not something you do just because you can. It’s something you do to numb soul-crushing ennui, something that Campbell seems to lack based on excerpts from her famed society column cited in the (Palowsky) complaint.”

Lack of local attention given highly questionable behavior by elected officials is bad enough but when it draws statewide as well as national eyebrows that can trigger potential economic fallout from lack of new investment.

Another 4th District Court Judge in Ouachita, Larry Jefferson, ruled a robbery-kidnap-carjack suspect ‘not guilty’ after a bench trial the other day in spite of DNA evidence which conclusively tied him to his crime against a 71-year-old female victim.

The 24-year-old perp, already a career criminal with an arm-long rap sheet of violent crime had held a pistol to the head of this live-alone grandmother and tried to cash her account out at an ATM where the blood from his cut hand was left and matched a mouth swab taken later, was free again—courtesy of Judge Jefferson—to share the community with his victim.

Certainly, it was not Ouachita Judiciary’s finest hour. Nor was it Jefferson’s first time in an unflattering spotlight. In 1999, the Louisiana Judiciary Commission concluded, “His actions cannot be said to promote public confidence in the integrity and impartiality of the judiciary” and in fact his actions had eroded both. After Jefferson unilaterally dismissed more than 40 cases before his then-City Court bench, the state Supreme Court suspended him from office for two years.

His ruling in the case of the robbery of the elderly grandmother came within a few days of handing a dirty state police trooper one year and some community service after the man was convicted of stealing drugs from an evidence room and selling about $1-million worth of the dope on the street. The ex-cop could have drawn a maximum sentence of 92 years in prison and fines totaling $76,000.

That non-jewel of judicial behavior reaped headlines across the nation. Veteran Capitol newspaperman Tom Aswell wrote: “If there’s anything dirtier than a rogue cop, it would have to be a rogue Judge.”

“Put the two together,” he wrote, “and an epic miscarriage of justice is bound to occur.”

These glaring cases serve readily to underline the need for public accountability and transparency to which the 4th Judicial District Court should rededicate itself. It’s a standard which sadly these cases suggest strongly has been ignored lately.

 

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Insight into Nungesser’s contempt for laws revealed in his blatant disregard for public records demands, other actions

Posted in Boards, Contract, Contracts, Corruption, Courts, Ethics, Finances, Fraud, Judges, Lawsuits, Politicians, Public Records, Transparency on April 26, 2016| 10 Comments »

How would a public official, say a parish president, manage to skirt the Louisiana public records laws and ignore votes of the parish council and get away with it?

Well, if you’re Plaquemines Parish President Billy Nungesser, and if you had 18 writs of mandamus pending against you for non-compliance, you would simply ride out the storm until your newly-elected, hand-picked council takes office and have a friendly council member move to rescind any pending adverse action.

That’s precisely what Nungesser did in late 2010. He blatantly ignored the law and waited out his adversaries. And it apparently worked.

No wonder he thought he could do an end run around Gov. John Bel Edwards by conspiring with State Republican Party Chairman Roger Villere in that completely embarrassing Iraqiscam-super tanker-proposal-to-cure-Louisiana-of-its-fiscal-problems that left him—and Villere—with a little something more disgusting than egg all over their faces.

With ample evidence of his contempt for the law prior to becoming lieutenant governor and his willing violation of protocol since becoming the second-highest elected official in the state, can there be any reasonable expectation of significant change in his conspiring makeup during the rest of what is almost certain to be a single term.

Probably not. He is what he is: an underhanded politician fully capable of any action, legal or otherwise, that will enhance the career and burnish the public image of William Harold “Billy” Nungesser.

He is Bobby Jindal without the charm. He is Chris Christie without the finesse. He is Scott Walker, Rick Scott, and Sam Brownback rolled into one, but without their compassion. In short, he is Billy Nungesser, yet another electoral accident visited upon unsuspecting—or uncaring—Louisiana voters, a man worthy of the scorn of Public Service Commissioner Foster Campbell before it was cool to be scornful of the man. But that’s a story for another day and it will have to wait.

Right now there is his record as Plaquemines Parish President—a job he won by a large majority, by the way—that begs closer examination as a clue into what we expect of him as lieutenant governor, a peek already provided by that ridiculous Iraqi oil tanker scam blunder.

Actually, Nungesser’s defiance of the parish council began way back on July 23, 2009, when the council voted to direct the council attorney to enforce a parish ordinance by “shutting down the operations of all unpermitted borrow pits located within the parish.” That was followed on Dec. 10, 2009, by a council resolution to authorize and direct the council attorney “to take any and all legal action, including but not limited to the filing for injunctive relief and/or mandamus” to obtain and examine “all transactions (including but not limited to any and all construction contracts, capital projects, professional contracts, cooperative endeavor agreements and intergovernmental agreements) entered into by and all expenditures incurred by the parish through the office of the Parish Presidents (or any of its departments or agencies) since January 1, 2007.”

Res 09-253 Mandamus-borrow pits, seal, parish decal

Res 09-533 any and all legal action by Council Attorney or Designee

A writ of mandamus is Latin for “we order” and is defined as a writ which “orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.” http://dictionary.law.com/Default.aspx?selected=1203

Each of the 16 subsequent similar actions by the council were taken in 2010 in the months leading up and immediately following the October 2, 2010, elections for parish council and parish president.

Seven of the 18 resolutions passed by the council were for the purpose of forcing Nungesser to comply with public records requests.

Besides the 2009 resolutions cited above, subsequent resolutions passed by the Plaquemines Parish Council during 2010 directing:

May 27—Nungesser to turn over copies of any “and all contracts, cooperative endeavor agreements or memos of understanding…from April 15, 2010, related to the effects of the Deep Water Horizon Incident, through the effective date of the resolution…” and a second calling for Nungesser to submit to the council copies of “any and all contracts, financial records, cooperative endeavor agreements or memos of understanding…from January 1, 2007 through the date of the resolution.

Res 10-199 All contracts etc from Pres since 4-15-10

Res 10-198 All contracts etc from Pres since 1-1-07

July 8—Nungesser to sign all revenue bonds approved by the council on Feb. 11, 2010, in the amount of $18 million. Res 10-251 Directing Pres to sign $18M bond documents or Mandamus filed

July 22—Nungesser to produce documents “previously requested by the…council Audit Committee and the parish council pursuant to” one of the May 27 resolutions “to compel him to produce any and all documents pertaining to all of the Federal Emergency Management Agency (FEMA) expenditures.

Res 10-273 Mandamus for records requests

August 12—The council’s legal department to initiate legal proceedings if necessary in order to obtain a copy of the agreement for council fiscal agent from June 1, 2008, through May 31, 2010 pursuant to the council’s first request for the document made on June 29, 2010. Res 10-294 Fiscal Agent PRR

October 28—The council’s legal department to initiate legal action to compel Nungesser “to enter into and execute a purchase agreement with two realty companies for six acres to be used for a recreation park, athletic fields, walking track and picnic area pursuant to the council’s approval of the purchase on June 26, 2008. Res 10-463 Resol mandamus to execute purchase agree with White Oak

November 11—The council’s legal department to initiate legal action to compel Nungesser “to assist with and finalize all plans for design and engineering as needed for the raising of an East Bank levee; the council’s legal department to initiate legal proceedings to compel Nungesser to honor a contract with a New Orleans law firm and to issue payment for services rendered by firm attorney Robert Barnett; the council’s legal department to take legal action to force Nungesser to transfer $3 million in funds to a parish levee project; Nungesser to provide “any and all documents, pleadings, emails, facsimiles, correspondence, letters, memorandums, interoffice documentation and intra-office documentation generated by Stephen Braud” as an attorney for the parish from Jan. 1, 2010, to date of the resolution.

Res 10-486 Mandmaus to assist with plans for raising EB levee

Res 10-485 Res No. 10-485 authorizing Mandamaus to pay Guste, Barnett

Res 10-482 mandamus transfer LRA EB Consolidated Complex Project to EB Non Fede

Res 10-481 Braud Pub Rec Request and mandamus

December 9—Nungesser to provide “any and all project worksheets, contracts, agreements, memoranda of understanding, etc., relative to FEMA funding executed by Nungesser” from Jan. 1, 2007, to the date of the resolution; Nungesser to provide a copy of “any and all professional services contracts” between the parish and All South Consulting Engineers from Jan. 1, 2007, to the date of the resolution; the parish legal counsel to initiate against Nungesser in order to force him to begin a resurfacing/striping project on LA. 15; the council legal department to initiate legal proceedings to compel Nungesser to remove “all movables” from the Ft. Jackson Port. Res 10-512 directing pres to submit all documents for FEMA funding from 1-1-07

Res 10-511 Mandamus directing pres to submit all contracts with AllSouth from 1-1-07

Res 10-514 Authorize Council legal dept to file mandamus to resurface hwy 15

Res 10-520 Ft Jackson Port MSRC Building-file Mandamus

December 31—Nungesser to enter into a contract with Deep South Associates; Nungesser to sign “any and all documents” with Fenstermaker & Associates for the engineering and the hiring of a surveyor to identify parish right of way and levee footprint for a levee lift in the parish.

Res 10-521 rober’t draft Deep South Associates

Res 10-524 Fenster Maker

Failure by Nungesser to comply with council actions regarding infrastructure work and contracts, provided such action was legal, could conceivably have been construed as malfeasance.

But the question of what is and what is not considered public record is clearly defined in L.S. 44:1 et seq. LOUISIANA PUBLIC RECORDS ACT

So what did Nungesser do?

Nothing, absolutely nothing—except perhaps to conspire with allies on the council to let the clock run until new members on the council would give him a majority to do as he pleased, including having the 18 resolutions rescinded.

And that’s precisely what happened.

Consider an email from Stuart Guey, Jr., a council member firmly entrenched in Nungesser’s camp. The email, written on April 8, 2011, was written to Assistant Parish Attorney Michael Mullin and copied to other council members, including Nungesser, said:

“I received a letter from (retired Baton Rouge State District Judge) Frank Foil regarding his appointment as ad hoc judge on the remaining Mandamus suits. It would be wonderful if the suits all can be resolved. I asked that resolutions be prepared for introduction to dismiss all writs but all Council members will have to know that the requested information has been compiled and where to view the information before it would be voted upon. I understand all the requested information may be on a disc that can be sent to everyone. If the information, in any format, is not provided to all Council members in a timely manner we will have to solicit legal counsel and proceed with the litigation. I hope this can be prevented. Please let me know what can be done.”

And, of course, once the resolutions to dismiss were put to a council vote, the writs conveniently went away.

Such is the type of ruthless control Nungesser exercised in Plaquemines Parish—somewhat reminiscent to the way old Leander Perez once reigned supreme in Plaquemines.

But such tactics aren’t going to fly in Baton Rouge.

LouisianaVoice currently has public records requests pending with Nungesser’s office and we aren’t going to wait much longer for a response. We requested—and received—his appointment calendar since taking office but we have yet to receive a response of any description on our requests for emails and other correspondence.

Nungesser may think that he’s omnipotent and that a little ol’ pissant writer out in Denham Springs doesn’t have a chance against the clout of the lieutenant governor’s and the Louisiana Attorney General’s offices, should the latter be called in to defend him.

But we have taken the state to court on three occasions over the non-production of public records and we will not hesitate to do so again. That’s because we have that one very important thing on our side: the Louisiana Constitution and we aren’t afraid to smack Nungesser upside the head with it.

And if we do, there won’t be a Plaquemines Parish Council to bail him out.

 

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

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

Third of four-part series:

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

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

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

  • If the court finds that the custodian arbitrarily or capriciously withheld the requested record, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian. It may also award the requester civil penalties not to exceed $100 per day, exclusive of Saturdays, Sundays and legal public holidays, for each such day of such failure….

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

  • The custodian shall be personally liable for the payment of any such damages and shall be held liable in solido with the public body for the payment of the requester’s attorney’s fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of legal counsel representing the public body in which the office of such custodian is located. In the event the custodian retains private legal counsel for his defense in connection with the request for records, the court may award attorney’s fees to the custodian. (Emphasis added.)

LOUISIANA PUBLIC RECORDS ACT

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

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

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

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

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

FERGUSON REQUESTED JUDGMENT

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

FIRST CIRCUIT RULING ON FERGUSON

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

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

This one is pretty easy except for one minor snag:

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

MICHAEL DEHOTELS PETITION

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

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

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

DESHOTEL JUDGMENT

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

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

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

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

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

SETTLEMENT OFFER

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

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

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

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

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

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

MOTION FOR DEBTOR EXAMINATION

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

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

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

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