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Archive for the ‘Lawsuits’ Category

That story about the north Louisiana contractor who was drummed out of business by the Louisiana Department of Transportation and Development (DOTD) and subsequently sued and won a $20 million judgment only to have it overturned on appeal just gets curiouser and curiouser with a couple of really bizarre developments.

Jeff Mercer, a Mangham contractor who had six contracts totaling nearly $9 million for which he was never paid, said his problems began when he complained that DOTD inspector Willis Jenkins attempted to shake him down to “put some green” in his hand or that Mercer place a new electric generator “under his carport” the following day.”

You can read the initial LouisianaVoice story by clicking HERE.

Mercer, armed with emails and other correspondence, filed suit against DOTD, claiming there was collusion among DOTD officials to “make the jobs as costly and difficult as possible” for him. A 12-person jury in 4th Judicial District Court in Monroe unanimously returned with an AWARD of $20 million in Mercer’s favor in 2015.

The jury, employing such terms as “collusion,” “bribery,” “extortion,” “conspiracy,” and “corruption,” not only held DOTD liable for damages, but also held four individual DOTD employees—Willis Jenkins, Michael Murphy, Barry Lacy and John Eason—personally liable.

But wait. Judge Henry N. Brown, as Chief Judge of the Second Circuit, had the responsibility of assigning cases and in Mercer’s case, he chose to assign it to himself—and wrote the decision that didn’t just reduce but obliterated the award in its entirety in OVERTURNING the lower court verdict.

Brown’s logic was that Mercer still had his contractor’s license and was still free to bid on state jobs. But when that same contractor is owed $9 million that the state refuses to pay him, he can’t meet payroll and he can’t purchase—or keep—equipment needed to perform the work. Nor can he afford worker’s comp and liability insurance.

Mercer says he was forced to sell off all his equipment—backhoes, trackhoes, dozers, trucks, etc. He estimates he lost another $2 million by being forced to sell his equipment for less than its real value. So, he is effectively out of business, Judge Brown’s opinion notwithstanding.

Meanwhile, a separate lawsuit in which Mercer still seeks payment of the $9 million that he’s never been paid makes its way slowly through the legal system.

The only problem with that was Judge Brown’s failure to recuse himself or even disclose his huge potential bias stemming from the fact that his father, Henry N. Brown, Sr., had been a civil engineer for DOTD for 44 years which “undermines the very fabric of our people’s faith in the judicial integrity of the Second Circuit Court of Appeal,” according to a MEMORANDUM in Support of Application for Rehearing and a Motion to Recuse and Vacate the Panel’s Opinion filed by Mercer’s attorney, David Doughty of Rayville.

At the trial, attorneys for both Mercer and for DOTD specifically asked each potential juror if they or any member of their family had ever worked for DOTD. “That was the first question asked every potential juror,” Mercer says. “If anyone answered yes, they were immediately excused.”

The case took 30 days to try, with thousands and thousands of pages of testimony. Yet, the Brown’s decision was rendered only 22 days after the appeal was filed, making it likely that he cherry-picked what he wanted to write since it was highly doubtful that the entire trial record could have been adequately reviewed in such a short time. The alternative would be that an attorney for DOTD drafted the decision for him and he signed off on it.

All of which can justifiably be labeled old news, already thoroughly rehashed on this site, right?

Right.

Except for a couple of recent news stories that loop right back into Mercer’s original claim of corruption, favoritism, bribery, extortion and otherwise unethical behavior by those in control of the dollars and the legal system.

Like this STORY from October 1 by KTBS-TV in Shreveport.

Judge Henry Brown was ordered by the Louisiana Supreme Court to vacate the Second Circuit Court of Appeal building in downtown Shreveport and to refrain from taking any further judicial actions after complaints that he had created a hostile environment toward colleagues who were hearing the appeal of a civil lawsuit against one of his friends from whom Brown had purchased a home.

Although Brown had recused himself from hearing the appeal because of the obvious conflict, members of the court found evidence that computer files where judges’ memos and drafts of opinions are kept had been hacked. A law clerk who worked for Brown was subsequently fired and banned from the courthouse.

And then there was this STORY by WAFB-TV in Baton Rouge that showed that one of the defendants in Mercer’s lawsuit may have had a too-cozy relationship with a DOTD contractor who manages to keep getting contracts through the agency despite repeated fines for failure to complete jobs on time.

The television station showed several photographs of DOTD engineer Barry Lacy on fishing trips, hunting trips, and at crawfish boils, and golf tournaments with officials of Coastal Bridge of Baton Rouge.

Lacy was one of four DOTD employees who were held personally liable in Mercer’s lawsuit.

DOTD Secretary Dr. Shawn Wilson said that while Lacy has no authority to award contracts to firms, he does make recommendations on such decisions.

It was not immediately clear if Lacy received the hunting and fishing trips or invitations to the crawfish boils or golf tournaments as gratuities but numerous OPINIONS by the Louisiana Board of Governmental Ethics have repeatedly said that “no public servant shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director agent, or employee of such person if such public servant knows or reasonably should know that such person:

  • Has or is seeking to obtain contractual or other business or financial relationships with the public servant’s agency, or
  • Is seeking, for compensation, to influence the passage or defeat of legislation by the public servant’s agency.”

Meanwhile, Mercer, who was only trying to make a living, has been put out of business by a system that seems to consistently disregard the tenets of human decency, fair treatment, and equal opportunity in favor of preferential treatment, prestige, and power—with little or no consideration of the human consequences.

 

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Apparently, if you are drowning, lifeguards are under no obligation to protect you from harm.

If a maniac is careening down the interstate, weaving in and out of traffic at breakneck speeds, state police are not required to protect other motorists.

If that same maniac causes an accident in which you are gravely injured, first responders have no duty to try and save your life.

If someone is breaking into your home, don’t bother calling 911; they don’t have to come to your aid. Not their job.

The fire department is no longer duty-bound to respond when your home is consumed in flames.

If you witness child abuse, don’t bother calling Child Services. They have paperwork to do.

Teachers are under no requirement to teach our kids.

Why bother the rape crisis hotline? You were probably dressed provocatively anyway and brought it on yourself.

The Hippocratic Oath is out the window for physicians.

The rules of the game have apparently changed. Police departments exist now to promote fundraising projects for benefits and pensions.

Sheriffs’ departments are only for awarding political allies with jobs as deputies.

Social welfare agencies exist only to allow employees to qualify for retirement.

Extreme? Of course.

Fantasy? Not necessarily.

Not if the ruling by a federal judge in Florida is any indication of the future.

U.S. District Judge Beth Bloom has dismissed a lawsuit by 15 students of Marjory Stoneman Douglas High School who somehow had the audacity to expect that school officials and the Broward County Sheriff’s Office had a duty to protect them from a mass murderer.

Read the full story HERE.

In an incredible reach, Judge Bloom said that Broward schools and the sheriff’s office had no legal duty to protect students during the attack in which Nikolas Cruz killed 17 and wounded another 17 on Feb. 14, 2018.

She said the two agencies had no constitutional duty to protect students who were not in custody.

As outrageous as her decision is, one of our readers informs us she was merely complying with established U.S. Supreme Court rulings. The first, titled TOWN of CASTLE ROCK v. GONZALES, said a police department could not be sued for failure to enforce a restraining order after the estranged husband of a woman killed their three children. The other, DeSHANEY v. WINNEBAGO COUNTY, said that a state government agency’s failure to prevent child abuse by a custodial parent does not violate the child’s right to liberty for the purposes of the 14th Amendment to the U.S. Constitution.

Next, there will be no responsibility on the part of federal agencies to protect us from tainted meat, workplace dangers, environmental threats, consumer fraud, employer harassment, racial discrimination, bogus universities, or payday loan abuses.

Oh, wait. Strike that last paragraph. We’re already there.

As our late friend C.B. Forgotston would have said: you can’t make this stuff up.

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There is an interesting story in today’s Baton Rouge Advocate (click HERE to read the story) about former Secretary of State Tom Schedler.

It seems that in addition to being forced from office by his settlement of a sexual harassment lawsuit, his successor, Kyle Ardoin, diverted $90,000 in state funds earmarked for computer upgrades to pay Schedler’s portion of the settlement.

That’s questionable use of public funds by practically any definition I know but beyond that little indiscretion lies a more fundamental question and that is just why was the state on the hook for the bulk of the payout for his behavior in the first place?

Schedler resigned in May of this year in the wake of accusations that he had sexually harassed a female employee for years.

The woman filed suit against Schedler and the state and the case was settled in August for $167,500, plus another $35,000 in attorney fees.

Of that $202,500 total, Schedler personally paid only $18,425 with state taxpayers picking the remaining $184,075–$90,450 covered by the secretary of state’s office and $93,625 by the Office of Risk Management, the state office that insures all state agencies in cases of legal liability.

But why would taxpayers be called upon to foot the bill for nearly $185,000 for personal actions committed by Schedler?

That was the question posed by a reader who said, “We need somebody to pass a law that anybody settling a sexual harassment case related to their employment with the state has to pay ALL of it from their own pockets. If Schedler wasn’t 100 percent responsible for this, who was, the state? And who, in this case, is the state?

Good questions all and an observation that cuts the heart of the legal issue.

To our reader’s advocacy that a law needs to be passed, he’s correct—except the law is already in place. It’s just not applied by judges who preside over these cases.

There is even a legal term (Latin, what else?) that addresses this very case.

RESPONDEAT SUPERIOR is the Latin phrase for “Let the master answer.” While it is an English Common Law doctrine (Louisiana’s laws are based on the Napoleonic Code), it would still apply in Schedler’s—and others’—cases if only the judges would apply the principle.

Established in the 17th century, the doctrine was adopted in this country and has been broadly applied in agency law. Literally, Respondeat Superior means the employer (in this case, the state) is liable for the injuries caused by an employee who is working within the scope of his employment relationship (emphasis mine). The person who does the work for the employer is the agent and the theory behind the law says the principal (employer, or agency) controls the agent’s behavior and must then assume some responsibility for the agent’s actions.

It means that if, as a state employee, your supervisor or legal counsel directed or advised you to do something later determined to be illegal, then the state would be liable for any fines, courts costs, etc. If, however, you did something illegal at work that was not work-related (harassment or assault of a subordinate, stealing from the coke machine, extortion, etc.), then you and you alone should be held liable for any damages imposed. If, the first case, the court had imposed a $50,000 fine, the Office of Risk Management would be responsible for paying the penalty. In the second case, if you were fined (whatever amount), the full responsibility for payment should fall upon you because what you did was not job-related, or within the scope and authority of your job responsibilities.

The question then becomes was the employee (Schedler) acting within the scope of employment during his off-the-rails behavior. The answer, of course, is certainly not.

That is the sticking point here and, in a case involving LouisianaVoice a few years back. We sued Commissioner of Administration Kristy Nichols over her failure to provide public records in the time prescribed by law. LouisianaVoice won the case and Nichols was personally assessed financial penalties. But she appealed, lost and eventually settled with LouisianaVoice. But the state paid for all her attorney fees at the state and appeal court levels as well as for the settlement itself.

The judge held her personally liable because she did not rely on the advice of the DOA legal counsel in dragging out her response to our records request. She was not, the court deemed, acting “within the scope of her employment” by delaying production of the records. Still, when push came to shove, it was the state, i.e. taxpayers, that paid in the end.

Same with Schedler. Sexual harassment certainly is never within the scope of anyone’s employment. Therefore, what Schedler did, he did as a freelancer, not as part of his duties as an employee (or in this case, the very head of the agency). Accordingly, he should have been held personally liable for all damages and legal costs.

That he was not speaks to the inexcusable laxity exercised by the court system in this case. This was the ideal chance for the judiciary to send a clear message to public servants—and employees in the private sector—that acting outside the boundaries of their job descriptions has consequences.

Sadly, that opportunity was missed.

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I have to respectfully disagree with Kevin Reeves.

Col. Reeves, the Louisiana State Police (LSP) Superintendent, penned a LETTER to the editor of the Baton Rouge Advocate today (Friday, Aug. 31) in which he questioned the appropriateness and purpose of the paper’s continued reporting of what he referred to as an “incident” that occurred “over 20 months ago.”

The “incident,” of course, was that ill-advised road trip by four troopers to a San Diego convention—in and LSP vehicle—by way of the Grand Canyon, Hoover Dam and Las Vegas, which proved to be the tipping point that brought the career of Reeves’s predecessor, Mike Edmonson, already rocked with a succession of scandals, to an abrupt end.

Reeves, who by all accounts, has demonstrated his determination to set LSP back on course and to restore its image, said it is time for The Advocate (and LouisianaVoice, I assume, though we were not mentioned in his letter) to “move forward” and to pull back on its negative coverage.

I’m certain that Col. Reeves needs no reminder that it was the State Police Commission (the LSP equivalent of the State Civil Service Commission) that kept the issue alive by its interminable foot-dragging in its investigation of the trip.

Repeated attempts by retired State Police Lt. Leon “Bucky” Millet of Lake Arthur to prod the commission into a full-blown investigation of the trip, as well as several apparent violations of LSP regulations and state laws by the Louisiana State Troopers Association, were met by delays followed by yet more delays and postponements as the commissioners seemed determined to turn a blind eye to events occurring under their collective noses.

In the end, Reeves attempted to mete out appropriate punishment to the four troopers who pleaded ignorance of regulations and who said they were merely following the directives of Edmonson. (Ironically, such pleadings of ignorance never carry the day when a motorist is pulled over for a traffic violation.)

But again, it was the commission, in its resolve to tidy things over, that overturned Reeves’s punishment in a recent hearing held in Monroe. That, for good, bad, or indifferent, kept the story alive. When the head of Louisiana State Police is blocked from disciplining errant troopers for actions they well should have known were improper, that’s legitimate news and it should be reported.

First, it was Maya Lau who covered the State Police Commission. She was a quiet but effective reporter and did an excellent job until she left to go to work for the Los Angeles Times. She was succeeded by Jim Mustian who also held the commission accountable. Now he’s leaving for a job in New York with the Associated Press.

Meanwhile, yours truly is staying put. I’m not going anywhere and I will continue to report on all governmental wrongdoing, local or state.

For instance, there is still the pending matter involving State Trooper Eric Adams:

WAFB-TV story

Warrant-redacted

Criminal dismissal

Petition

Motion for Sanctions

Answer & Recon Demand-filed

 

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It was the end of February 1968 and John J. McKeithen was just completing his first term of office. (Unlike today, when statewide inaugurations are held in January, state elected officials then took their oaths of office in May.)

McKeithen had earlier upset long-standing tradition when he managed to change the State Constitution during his first term so that he could run for re-election. Previous governors could serve only a single four-year term before being required to (a) seek another office or (b) start raising funds and lining up support for a return four years hence. In other words, governors were barred from serving two consecutive terms.

But this isn’t about McKeithen’s savvy political machinations that allowed him to become the first modern-day governor to succeed himself. It is instead about another precedent set by the Caldwell Parish native: The invoking of gubernatorial powers under Article IX, Section 8 of the 1921 Louisiana State Constitution which resulted in the heretofore unthinkable act of suspending a sitting sheriff from office.

It’s about how the current State Constitution, adopted in 1974, removed that authority from the governor.

And it’s about how, given the freewheeling manner in which some sheriffs wield power in their respective parishes, it might not be a bad idea if that authority was reinstated if for no other reason than to serve as a constant reminder to sheriffs that their actions could have consequences.

Yes, sheriffs are elected officials answerable to their constituents and if they keep getting elected, what business would a governor have in being able to say otherwise, especially if the sheriff and governor were political adversaries?

And if the sheriff can fool the electorate, there are always the courts. But face it, the local district attorney and the sheriff are usually strong political allies who present a formidable team to anyone who would question their authority. There are exceptions, like DA Earl Taylor and Sheriff Bobby Guidroz in St. Landry, who don’t exactly gee-haw on much of anything.

But then there is Louis Ackal in Iberia Parish whose strong-arm tactics, especially where blacks are concerned, has become a source of embarrassment to the locals—or at least should be—and would be even more of a pariah if the local newspaper, the Daily Iberian, was courageous enough to call him out for his egregious flaunting of basic human dignity and his contemptuous trampling of constitutional rights.

In the case of Jessel Ourso of Iberville Parish, across the Mississippi River from Baton Rouge, it was just a matter of a little Louisiana extortion that prompted McKEITHEN TO OUST OURSO on Feb. 9, 1968. Iberville was in the midst of a construction explosion with chemical plants sprouting up all along the Mississippi and the high sheriff was in a unique position to take full advantage of the boom.

Ourso placed his brother in a no-show job as a union steward for the Teamsters at one plant and contractors were ordered to lease equipment from Ourso’s nephew, State Trooper Jackie Jackson. The tipping point, though, was apparently Ourso’s requirement that contractors use a guard service owned and operated by the sheriff.

One witness described an atmosphere of “just plain racketeering and shakedowns through collusion of individual law enforcement officers and labor.” (Imagine that: the word collusion was being bantered about half-a-century ago.)

McKeithen’s decision to suspend Ourso was based on the recommendation of then-State Comptroller Roy Theriot, a recommendation which in turn stemmed from a report by Legislative Auditor J.B. Lancaster which laid out Ourso’s strong-arm tactics, including his preventing contractors from firing workers who were performing no work.

In Ackal’s case prisoners have died under mysterious circumstances, dogs have been loosed on helpless prisoners in the parish detention center, prisoners have been sexually abused, and women employees have sued—and won settlements—over sexual harassment claims.

A television network recently aired a documentary on Ackal’s fiefdom, concentrating on the death of Victor White, III, who, while he sat in a patrol car with his hands cuffed, was fatally shot in the chest—a shooting that was ruled by the local coroner as a suicide, as improbable as that had to be, considering his hands were cuffed behind him.

Ackal’s office has paid out more than $3 million in legal judgments and settlements in his 10 years in office—a rate of $25,000 for each of the 120 months he has been in office. And that’s not even counting the attorney fees of about $1.5 million. Those numbers are far more than any other parish in the state except perhaps Orleans.

And there are other cases currently pending against Ackal and the Iberia Parish Sheriff’s Office.

Like the LAWSUIT just filed in U.S. District Court for the Western District of Louisiana in Lafayette by Michael and Suzzanne Williams.

In that action, the pair said that sheriff’s detective Jacques LeBlanc, who has since left the department, obtained a search warrant for their home because he “thought” he had reason to believe the couple was in possession of “illegal narcotics, drug paraphernalia, currency and other controlled dangerous substance(s).”

When voices were heard outside their bedroom, Michael Williams went to the front door. When he opened it, he was ordered out of the house and deputies stormed the house. They forced Mrs. Williams outside clad only in bra and panties, refusing to allow her to dress. Williams was handcuffed and placed in the back of a patrol car while deputies ransacked their home.

Officers “did not find a scintilla” of illegal drugs, drug paraphernalia or illegal narcotics, their petition says. Following a fruitless search, they were released with no charges being filed.

Williams subsequently appeared at the sheriff’s office on numerous occasions in an attempt to obtain a copy of the search warrant and affidavit but were provided with neither, although they have since obtained a copy of the search warrant through other sources. They still do not have the affidavit on which the warrant ostensibly was based. Instead, they were told by Dist. Judge Lewis Pittman, who signed the warrant, that LeBlanc swore under oath that he had good reason to believe they were in possession of drugs.

They are claiming that LeBlanc knew his statement to the effect that he believed they had drugs was false and that he committed perjury in order to obtain the warrant.

They are seeking $2 million in damages in their lawsuit.

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