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Archive for the ‘Judges’ Category

Jindal administration’s ugly double standard in dealing with sexual harassment complaints—even within the same agency

Posted in ATC, Courts, Ethics, Governor's Office, Judges, Public Records on February 11, 2013| 25 Comments »

The administration of Gov. Bobby Jindal apparently has a double standard in the manner in which it handles complaints of sexual harassment against appointees.

When Kelli Suire accused her former boss, commissioner of the Louisiana Office of Alcohol and Tobacco Control Murphy J. Painter, of sexual harassment, it mattered little to Jindal and then-Chief of Staff Stephen Waguespack that she had already recanted those allegations. Painter was immediately called to the governor’s office and summarily fired from his job.

But when Painter’s successor, Troy Hebert, was accused of sexual harassment—and other transgressions—by an ATC agent nearly two years ago, it was the agent, Randall Kling, who was fired and the Jindal administration then threw its financial and legal resources behind defending Hebert, who remains employed.

But Kling may yet have the last word in what has now turned into a legal battle between him and the Department of Revenue, the agency under whose budget ATC is funded, but now the issue is retaliation against his right of free speech.

The First Circuit Court of Appeal on Jan. 25 overturned a lower court decision which found no right of action by Kling and which dismissed his lawsuit with prejudice.

Kling and other ATC employees initially submitted a complaint to former Revenue Secretary Cynthia Bridges about what they considered to be offensive behavior on the part of Hebert on March 10, 2011. Then on March 16, 22 and 25, Kling submitted additional complaints to Dee Everett, director of human resources at Revenue.

Among his complaints were claims of threats, hostile work environment, systematic intimidation and discrimination, favoritism, humiliation, harassment, inefficiency and morale problems at ATC.

On March 30, 2011, Kling was terminated and on May 26, he filed suit against the Department of Revenue, claiming that he had been fired in retaliation for his complaints regarding Hebert and his department.

The department filed objections of no cause of action, claiming that Kling’s allegations failed to set forth a cause of action for a free speech retaliation claim because his complaints did not involve “matters of public concern,” but rather were merely the complaints of an employee against his superior that were not entitled to constitutional protection.

Kling subsequently filed an amended petition in which he set forth 24 alleged violations of agency policy, procedure and law, including allegations that Hebert:

• Compromised the Civil Service Performance Planning and Review System;

• Operated the ATC in total disregard of State Civil Service rules;

• Used state resources for personal and political gain and in furtherance of his plan to seek elective office;

• Attempted to undermine ethics laws by attempting to form a non-profit entity whereby funding could be solicited and received from the alcohol industry which is regulated by ATC, and boasting that the alcohol industry would gladly donate funds to furnish his proposed new office suite at ATC;

• Schemed to build himself a new office in such a manner as to avoid legislative and Division of Administration oversight;

• Harassed employees who cooperated with the investigations conducted by the Office of Inspector General and the Louisiana State Police concerning the conduct of former commissioner Painter;

• Repeatedly violated sensitive computer policies (a charge for which Painter was indicted and is scheduled to stand trial on April 22), which violations had the potential to jeopardize sensitive law enforcement initiatives and compromised the safety of ATC agents;

• Was guilty of misconduct that threatened the ability of ATC to properly perform its duties;

• Subjected ATC employees to sexual harassment, gender discrimination, humiliation and systematic employment practices that placed ATC agents in potential danger, and

• Was responsible for a mass exit of qualified and experienced ATC agents.

The state, choosing to eschew the attorney general’s office in defending Hebert, instead contracted with outside counsel E. Wade Shows who promptly argued that Kling was attempting to assert a claim for retaliatory discharge due to complaints that were not made by him individually, but by at least 11 other employees of ATC.

It might appear somewhat unusual to argue that a single employee had no cause of action—because his claims were based on the complaints of 11 co-workers—since that argument would seem to acknowledge that agency problems were not confined to a single employee but instead were experienced by several others as well and that problems were agency-wide in nature.

Shows also argued that Kling’s amended petition failed to state a viable cause of action as the complaints he made were simply that of an “unhappy employee” and not a “matter of public concern,” and therefore not constitutionally protected.

Apparently the trial court judge, A. William Morvant, agreed.

Morvant, at oral arguments held on Jan. 23, 2012, refused to allow Kling’s attorney to argue on the basis that the opposition brief was untimely and also refused to allow Kling to testify on the exception of no right of action, although he did allow Kling’s testimony to be proffered (offered into evidence).

Morvant subsequently ruled that Kling’s petition did not set forth a cause of action for retaliatory discharge because none of the allegations rose to the level of public concern, but were merely workplace criticisms by Kling in his role as an employee and not as a concerned citizen (see: Kelli Suire’s complaint against Painter for the contrast in the manner in which similar complaints are handled by the governor’s office—LouisianaVoice, Feb. 6 post https://louisianavoice.com/2013/02/06/emerging-claims-lawsuits-could-transform-murphy-painter-from-predator-to-all-too-familiar-victim-of-jindal-reprisals/).

Morvant signed his judgment a year ago, on Feb. 1, 2012, sustaining the exception of no right of action, thereby dismissing Kling’s lawsuit with prejudice (meaning final judgment as opposed to without prejudice which means the matter may be revisited).

Kling appealed and the First Circuit ultimately disagreed with Morvant—and Shows—and reversed Morvant’s ruling late last month.

The First Circuit, which appeared to offer a lesson in law to Morvant, said, “…In order to have an interest in asserting a retaliatory discharge claim, Mr. Kling does not have to be a direct recipient of the conduct complained of…”

“Mr. Kling claims that he was terminated from his position in retaliation for the exercise of his constitutionally protected right of free speech. His interest in prosecuting this lawsuit is not as a victim of harassment or discrimination, but as an employee who was fired in retaliation for complaining about Mr. Hebert’s conduct,” the appellate court ruling says.

“Thus, the fact that he may not individually have been a victim of some of the complaints in the amended petition, such as gender discrimination, is of no moment in determining whether he has a right of action to assert a retaliatory discharge claim.

“We find that (ATC) failed to meet its burden of establishing that Mr. Kling had no interest in prosecuting this retaliation claim….Therefore, we find that the trial court committed legal error in granting the exception of no right of action.”

The ruling then went on to address a little something contained in the First Amendment—the right of free speech:

“Article I, Section 7 (of the U.S. Constitution), on which Mr. Kling’s lawsuit is based, gives Louisiana citizens the right to speak, write, and publish their sentiments on any subject. It is well settled that an employee of a public entity may not be discharged for exercising his constitutionally protected right to freedom of expression despite his at-will status.

“The law has recognized that there are some types of speech, which by their very nature, address matters of public concern,” the ruling continued. “For instance, the disclosure of misbehavior by public officials is a matter of public concern and is therefore entitled to constitutional protection.

“These allegations of unethical and perhaps illegal conduct on Mr. Hebert’s part clearly are matters of public concern.

“We find that Mr. Kling’s petition does set forth a cause of action for retaliatory discharge and reverse the trial court’s judgment sustaining the exception of no cause of action and dismissing this lawsuit with prejudice.

“The judgment sustaining the peremptory exception raising the objection of no cause of action is also hereby reversed.

“This matter is remanded to the trial court for proceedings consistent with this opinion,” the ruling said, adding that all costs of the appeal were assessed against the Department of Revenue.

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Jeff Hughes borrows from Woody’s failed congressional bid: pseudo-newspaper claims entire Supreme Court is at stake

Posted in Campaign Contributions, Courts, Governor's Office, Judges on December 7, 2012| 2 Comments »

Is it just us or has Jeff Hughes ripped a page from the Woody Jenkins playbook in his campaign for the State Supreme Court with that tacky “newspaper?”

For that matter, how is it that Jeff Hughes runs on a campaign of rock-solid conservatism, garnering endorsements from Piyush Jindal, the Louisiana Republican Party and the Tea Party while at the same time reaping boat loads of campaign contributions from the plaintiff bar?

And how is it that Jeff Hughes on the one hand touts his support for right to life, firearms, “traditional” marriage and capital punishment while citing the new chief justice as a New Orleans liberal and says that his election would give conservative Republicans a majority on the Supreme Court and at the same time insisting that he would never in a million years allow his personal views supplant a strict application of the law.

That, folks, in hockey parlance is known as the hat trick.

For that matter, how does his high school basketball prowess qualify him for anything but a college scouting report?

And what makes the fact that he wrote the opinion on the First Circuit Court of Appeal denying the appeal of convicted serial killer Derrick Todd Lee significant? Given the evidence in that case, a first-year law student could have written it and in all likelihood, it wasn’t Hughes at all, but a law clerk who did the actual writing that Hughes signed.

In this, the last week leading up to Saturday’s runoff between Hughes and Judge John Michael Guidry, we received two mail-outs from Hughes. One, a slick, 9 by 6-inch card contained the headline: “Bummed About Obama?” and text that proclaimed that “19 states how have legalized marijuana and 9 states and the District of Columbia now allow gay marriage.”

Beneath that shocking news bulletin was the message, “Protect your rights here in Louisiana—vote Judge Jeff Hughes.”

Now, whether you like or despise Obama, whether you endorse the legalization of marijuana or gay marriage should never be an issue in an election for the Louisiana Supreme Court. Minnesota notwithstanding, a candidate for a judgeship has absolutely no business espousing his political viewpoint on political issues, hot-button or otherwise. That is simply improper and inappropriate.

And yet, Jeff Hughes maintains in that pseudo-newspaper, “I am a strict constructionist. It is the duty of the legislature, not judges, to make the law. I consider the Constitution to be an inspired document.”

During his unsuccessful 2008 campaign for Congress against Donald Cazayoux, Jenkins published several issues of what appeared to be a tabloid newspaper which, as it turned out, was nothing more than an oversized campaign brochure that praised Woody Jenkins.

Now Jeff Hughes has cloned that idea, mailing out the Louisiana Judicial Report.

At first glance, it looks like a real, bona fide, sure-fire tabloid newspaper, complete with the official Seal of Louisiana in the upper left hand corner, next to the masthead. “Supreme Court at Stake,” the headline screamed at the reader just before the paper disappeared into the recycle bin. Not an individual Supreme Court seat at stake, mind you, but the entire cotton-pickin’ court apparently is at risk in this one election.

The “newspaper” contains an assortment of hot “news stories” about liberal Democrats, conservative Republicans, student-athlete Jeff Hughes, the lack of experience of John Michael Guidry, the boyhood of Jeff Hughes, ads saying Hughes is a “pro-life champion,” his two-time All-District basketball career at Denham Springs High School and Livingston Parish MVP, the obligatory family photo, a list of “key” endorsements and a half-page ad denying that he is aligned with the plaintiff bar in the so-called “legacy lawsuits,” litigation by landowners against oil companies for not cleaning up their property once exploration was completed.

The ad says that after the legislature passed legislation prohibiting the legacy lawsuits, the oil companies (he refers to them as “billionaires”) are supporting Guidry and the landowners (“millionaires”) support Hughes, all of which somehow makes no sense whatsoever.

“As a judge, my job is not to favor or reward any group but to apply the Constitutions and laws to the facts of each case,” Hughes said in the ad. “That’s what I will always try to do in every controversy.

“Here’s some advice: ignore the big money being spent on TV (ironically, that would be Hughes money to a large extent) and think about the issues that actually affect you and your family.

“If you’re pro-life, pro-gun, and pro-traditional marriage, then vote Jeff Hughes.”

Wait. What?

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After three legal setbacks, the next logical step for π-yush is to follow the lead of Egypt’s Morsi: suspend the court system

Posted in ALEC, American Legislative Exchange Council, BESE, Education, Ethics, Golf Courses, Governor's Office, Health Care, Higher Education, Judges, Legislature, Legislators, LSU, Prison, Privatization, Retirement, Teague, Toledo Bend, Water Sale on December 6, 2012| 7 Comments »

First it was a federal judge who threw out Piyush Jindal’s voucher plan in Tangipahoa Parish because it posed a major setback to the parish’s current desegregation consent decree.

Then, last Friday, a state district judge, Tim Kelley, whose wife once worked for Piyush, said the method of appropriations to fund the statewide voucher program is unconstitutional.

Fast on the heels of Kelley’s ruling, fellow Baton Rouge District Judge William Morvant refused to throw out a lawsuit challenging the only part of Piyush’s far-reaching retirement reform proposals that survived the legislative session earlier this year.

In case you’re counting, that’s oh-for-three—not a good batting average for the governor who would be president.

Keep in mind that Piyush is the incoming chairman of the National Republican Governors’ Association.

Remember, too, that he thought he would be moving into that position in the hope that it would be the launching pad for his presidential aspirations. To do so, he needed to bring something substantial to the table.

That something was to be sweeping education reform. That was to be the centerpiece of his list of grand accomplishments, the bold-face type on his curriculum vitae.

Now, the status of both education and retirement reform are suddenly in jeopardy.

Suddenly the star of the errand boy of the American Legislative Exchange Council (ALEC) doesn’t shine quite so brightly.

What to do?

The obvious answer would be to teague someone. That practice, after all, has served him well in the past. No college president, attorney, doctor, agency head, legislator or rank-and-file state employee will dare rebuke Piyush lest he or she be shown the door.

There was a time when we would have run a recap of those teagued by this peevish little man, but the list has grown so long that it would take up far too much space.

On reflection, however, one must ask just what are Piyush’s alternatives?

Well, normally he could campaign against the re-election of judges Kelley and Morvant—except he already did the anti-judge campaign thingy in Iowa.

He can’t teague the federal judge; he was appointed by the president.

He can’t teague either of the state judges—Kelley or Morvant—because they were elected by voters of the 19th Judicial District.

He can’t teague Jimmy Faircloth, the attorney who so expertly represented the interests of the state in arguing on behalf of the voucher program because Faircloth was working under a contract that ends when all appeals are exhausted—about $100,000 or so down the road.

He can’t teague Angéle Davis, wife of Judge Kelley because she already resigned her position as Commissioner of Administration.

He can’t teague the legislator who introduced the education bills because they were not written by any Louisiana elected official but by the corporate honchos at the American Legislative Exchange Council (ALEC).

He might consider teaguing Superintendent of Education John White since there are already unconfirmed rumors floating around that he is leaving soon.

But there is a far better option open to Piyush:

He could take a page from the playbook of Egyptian President Mohammed Morsi.

It’s such a simple solution we’re surprised no one has thought of it before.

All he has to do is first invoke that obscure nullification clause which several states unhappy with last month’s presidential election are bantering about—the one that says states can unilaterally ignore a federal law they don’t like. Or even opt out of the union itself. Some in Texas are talking about splitting off and breaking the state into five separate states (pure lunacy, but a philosophy that dovetails nicely with that of the Tea Party).

Then, like Morsi, Jindal can unilaterally decree greater authority for himself, including issuing a declaration that the wrong-headed courts are henceforth barred from challenging his decisions.

(Come to think of it, such a move is not exactly unprecedented. President Andrew Jackson said of the U.S. Supreme Court’s decision that the state of Georgia could not impose its laws on Cherokee tribal lands, “(Chief Justice) John Marshall has made his decision, now let him enforce it.”)

After that, he could even take it a step further and, like North Korea’s late Kim Jong-il, bestow upon himself the title of “Dear Leader,” and, again like Kim Jong-il, commission a song of the same name in his honor.

Think about it. If he were to take that action, he could sell prisons, the old insurance building property, hospitals, roads, universities, the Saints and the Zephyrs, not to mention a few state-owned golf courses and state parks.

That water from Toledo Bend Reservoir? Sold. Gone to Texas and a few select political cronies are even richer than before.

And you only think you’ve seen a lot of corporate tax breaks, incentives and exemptions. Once he issues his decree, corporate taxes would disappear into that sink hole in Assumption Parish.

All state employees who aren’t fired outright (to be replaced by telecommuting administrative types from Florida, California, Alabama and elsewhere) would immediately forfeit all health and retirement benefits—except for friendly former legislators who, of course, would be elevated to six-figure salaries with full benefits.

The Department of Civil Service, public schools and the State Ethics Board would become distant memories for the nostalgic among us.

Of course, were he to take such action, he could always say his decision was predicated “by three things: one, to protect needed reform packages; two, to streamline government so at the end of the day, we can do more with less, and three, I have the job I want.”

Opponents could be expected to condemn his decrees as heavy-handed and dictatorial but what else would you expect from those who represent the coalition of the status quo?

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A message to national media: please leave our governor alone; he already has the job he wants, so let him do it!

Posted in Budget, Education, Governor's Office, Health Care, Higher Education, Judges, LSU, Prison, Privatization on November 18, 2012| 13 Comments »

This may come under the heading of beating a dead horse, but if Piyush Jindal, henceforth known as the Brahman Brutus of the Republican Party, truly has the job he wants as he has repeated ad nauseum, then why the hell doesn’t he stay in Baton Rouge and do the job he was twice elected to do?

If Piyush will satisfactorily address this one question, then we promise to leave him alone.

Lest anyone think we’re sticking our neck out by offering to lay off this pathetic excuse for a governor, fear not: there’s no way on earth he can reconcile his job to his constantly trotting off in every direction on the compass to address national issues and the problems of the Republican Party.

There’s just no way he can square up the two diametrically opposed activities.

To the remaining Piyush loyalists (and the numbers, believe it or not, are shrinking, Jeff Sadow notwithstanding), ask yourselves one question;

If Piyush truly has his sights set on being governor of Louisiana for the next three-plus years, why do you think he ignores state media and only gives interviews to national media like Fox News, the New York Times, Washington Post, CNN, Politico and The Huffington Post?

Again, why does he refuse all state media requests for interviews?

• Do you really think the New York Times gives a flying fig about Louisiana’s projected $1 billion budgetary shortfall projected for next fiscal year?

• Do you cling to the faintest notion that CNN worries about the fate of Louisiana’s poor who are facing the loss of medical care because of the closure of state hospitals?

• Do you entertain any shred of belief that the Washington Post is even remotely concerned about that expanding sinkhole in Assumption Parish that swallows up more land each day while threatening the area with potentially explosive gases?

• Do you feel that Politico even knows about the incredibly senseless loss of about $5 billion a year in state revenues because of ill-advised tax breaks, exemptions and credits given to corporations who provide pitifully few jobs to Louisiana residents?

• And why do you think The Huffington Post should be concerned about 1,000 state employees who have been kicked to the curb by this administration (with still more to follow with the completed privatization of the Office of Group Benefits, the anticipated attempt again to sell or, in the alternative, close state prisons?

• Do you actually expect Fox News to investigate the appointment of former legislators to six-figure state jobs to beef up their retirement—jobs for which they are plainly unqualified or to ask probing questions about the awarding of the glut of six-figure salaried jobs in the Department of Education (DOE) to people who are allowed to work part time and to work from their homes in such places as Los Angeles and Tallahassee, Florida? Or to inquire into the hiring by DOE of a former Kansas City school official who left that system under a cloud after the awarding of a $37 million contract to an insider who had worked as a consultant on the project?

In the most recent spate of interviews, Piyush the Pontificator has been quite generous in his criticism of the Republican Party in general and Mitt Romney in particular after having campaigned for Romney with all due enthusiasm during the recent presidential campaign.

So, just where was he with all his sage wisdom during the campaign itself?

You see, you Piyush proponents, he was, as he has consistently been with most issues he has confronted, blindly naïve in foresight an 20/20 vision in hindsight. But he recovers so nicely that he thinks he never leaves a trace of his rumbling, bumbling, stumbling agenda.

Perhaps Bob Mann said it best in his recent post on his web blog Something Like the Truth http://bobmannblog.com/ when he compared Jindal to a passenger on the Titanic who, seeing the iceberg, conveniently ignored the danger but later was critical of the ship’s captain for his performance at the helm.

But let’s examine the record.

The only part of Piyush’s sweeping state employee retirement program reform package that passed during this year’s legislative session was the so-called “cash balance” plan where by new hires would come in after July 1, 2013 under a 401 (k)-type pension program.

Unclear—because the Piyush administration, in its headlong rush to reform, neglected to obtain a ruling on the IRS and Social Security status of the cash balance plan.

An adverse decision could force state employees—and the state—to contribute to both Social Security and Medicare, which would add to state employee and state costs.

The Louisiana State Employees Retirement System (LASERS) board voted last week to ask the legislature to delay the July 1 start of the new program because the administration has yet to request a clarification of the IRS and Social Security status.

State employees do not pay into Social Security and thus, unless they have sufficient quarters in the private sector, do not currently qualify for Social Security benefits or Medicare.

The IRS determination period does not begin until February, according to Maris LeBlanc, deputy director of LASERS. It is not clear how long it will take to obtain a determination and LeBlanc said to her knowledge, the Social Security equivalency letter, which is required from the administration, has not been submitted.

Division of Administration (DOA) spokesman Michael DiResto said DOA would submit the letter regarding that status to federal officials this week.

The Louisiana Retired State Employees Association (LRSEA) has filed a lawsuit challenging the legislation was approved without the legally-required two-thirds vote because there was a cost involved in implementing the new program.

House Speaker Chuck “the Genuflecting Gelding” Kleckley (R-Lake Charles), predictably parroting the Piyush position, maintains there was no extra cost in the implementation and that a simple majority vote was sufficient.

The legislature’s own actuary, however, differs with Kleckley and Piyush, making the determination that there was a cost.

So, who do you believe: the one who is paid to evaluate the cost of legislation or the one who desperately wants to cling to his political appointment as House Speaker?

Meanwhile, you can look for Piyush on any major network news program—because he has the job he loves.

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Notable Quotables (in their own words)

Posted in Campaign Contributions, Courts, Judges, Notable Quotables, Politicians, Transparency on November 12, 2012| 3 Comments »

“I am on record as pro-life, pro-gun and pro-traditional marriage. I’m personally in favor of the death penalty.”

—District Court Judge Jeff Hughes, on his personal philosophy he hopes will catapult him to the State Supreme Court where he may someday be called upon to rule on those issues.

“Not money, but money in the wrong place: describe the architecture of incentive, and people will infer the causation.”

—Lawrence Lessing, in his book, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It.

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