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Remarks by former head of State Dentistry Board on suit dismissal reopens LouisianaVoice investigation of tactics

Posted in Boards, Contract, Contracts, Corruption, Courts, Ethics, Lawsuits, LSU, Public Records on April 15, 2015| 10 Comments »

A couple of weeks ago, we received a comment from a reader identifying himself only as “The Truth Man” who proceeded to go on a 128-word tirade against another reader who called himself the “Dental Genie” and gloating over the outcome of the lawsuit of Dr. Randall Schaffer against the Louisiana State Dentistry Board.

Normally, it is the policy of LouisianaVoice to protect the identities of those commenting on our stories. We take the position that if they do not wish to divulge their real names, there must be a legitimate reason. Often, that reason is that the writer is a state employee who would fear for his job should his name be revealed.

But when the writer turns out to be the former director of the state board that was being sued by Dr. Randall Schaffer and when that writer attempts to color the results of the legal action in the board’s favor, we take the position that he is waiving his anonymity. He is, after all, a very public figure, retired or not.

Barry Ogden, former director of the Louisiana Board of Dentistry, was referring to Schaffer’s lawsuit against the board after the board turned on him for blowing the whistle on a defective joint replacement device for temporomandibular jaw (TMJ) sufferers by the head of the LSU School of Dentistry’s Oral and Maxillofacial Surgery Department in the mid-1980s. https://louisianavoice.com/2014/03/11/from-protecting-their-own-to-persecution-of-a-whistleblower-its-all-part-of-the-bureaucratic-shuffle-by-state-dental-board/

Schaffer who was a resident at LSU at the time, became aware of the negative effects to patients receiving the implants and when he was named as a witness and consultant in the class action cases that ensued, the Board of Dentistry immediately launched an investigation and ultimately revoked his license to practice dentistry.

Schaffer sued the board and moved to Iowa where he worked as a consultant and expert witness in legal matters involving dental malpractice. His case wound its way slowly through the courts, as legal cases always do, running up tremendous costs in the process. Meanwhile, Schaffer was forced to undergo bypass surgery and the combination of medical problems and legal costs left him with no choice but to allow his case to abandon.

Thus, he did not “lose” his case; it was dismissed because of the aforementioned reasons. “I simply could not afford to keep feeding the (legal) beast,” Schaffer said. “It has cost me more than $100,000 and it broke me.”

Ogden’s misleading and less than gracious rant led to several email exchanges between LouisianaVoice and Ogden. We first reminded him that the dismissal of Dr. Randall Schaffer’s case was not based on the merits of the case, but upon extenuating circumstances—money and health. We also reminded him that there are other lawsuits pending against the board and that state agencies have—and are continuing to—investigate tactics by the board and its contract investigator Camp Morrison, who inexplicably was given free office space in the Dental Board’s suite, paid for by taxpayers.

“Are you going to print my comment or not?” Ogden replied. “You obviously have made up your mind about me. Everything I said is true and public. Is your blog blocking what you don’t want to hear? I hope you will give myself and the other defendants a fair and balanced report after we prevail in court.”

We promised to publish his comment, but in context with the facts of the Schaffer case and Ogden’s 400-page deposition in another pending legal matter (Dr. Ryan Haygood). “The Schaffer case does not end the legal actions against the Louisiana Board of Dentistry,” we wrote, adding that as long as we were now communicating (we couldn’t get a comment from the board in our original story), “please explain how it is that the private investigator (Morrison) who is (or was) under contract to the board had the luxury of having an office in your office suite.”

Rather than answer that question, Ogden wrote back, “I cannot authorize you to publish my comment until I see how you plan to edit it and in what context. Are you on a witch hunt against the board or are you willing to publish non-biased comments? I do not wish for my comments to be changed. However, you may delete the final sentence admonishing you to know your subject before commenting. Further, do you require that I will only have my comments published if I allow you to controvert them with your own commentary?”

Well, yeah, when we feel it appropriate to clarify certain claims we do reserve that right.

We then asked him to please answer a few simply questions, to wit:

  • Why do you send in people posing as patients with the express purpose of setting these dentists up?
  • How is it that many of the dentists penalized with the board just happen to be in competition with board members?
  • How do you justify levying a fine of say, $2,000 and when the dentist refuses, you suddenly hand him a bill for $100,000?
  • How can you justify the board serving as accuser, prosecutor and judge? That makes it impossible for a dentist to receive a fair hearing.
  • When the U.S. Constitution says that everyone accused of wrongdoing is innocent until proven guilty, how is it that a dentist first learns of his “guilt” upon receiving notification of his fine?

We wrote that we had other questions, but unless he could address those satisfactorily, we could see no reason for further discussion. “You answer these and we can talk further,” we said.

“All I was attempting to do in my first comment,” he replied, “was to set the record straight, as I have been fed up with the  lies being said about the board and, in fact, all the horse manure thrown at us by you which you believed from the start… Now you wish me fill in the blanks in your next story which you have probably already written. I see no use in further communication, especially on matters in litigation. You are attempting to take advantage of me knowing I cannot answer your questions.

“Therefore, please do not print any of my comments, and let’s call it a day.”

Sorry, Mr. Ogden. That’s just not the way it works. You opened this dialog with your April 3 email to us in which you taunted us about the dismissal of Dr. Schaffer’s case—without revealing the real reasons for the dismissal—and advising us to keep our mouths shut. You offered your remarks as a comment to our story and even asked if we intended to print it before apparently having a change of heart and asking that it not be printed.

Sorry again, but when you want something to be off the record, you preface it that way—up front. You don’t come back after the fact and ask that your ill-advised remarks not be printed.

Accordingly, here is the original comment by Barry Ogden, retired director of the Louisiana State Board of Dentistry (verbatim, as he requested):

  • For all of you who believe the fairy tale told by the dental genie, please be advised that ALL lawsuits filed on Dr. Shaffer’s behalf have been DISMISSED. I guess now you have to complain that both state and federal judges are as corrupted as the dental board. Further, how can anyone make a legitimate comment without looking at both sides? You can obtain a copy of the decision revoking Dr. Shaffer’s license from the dental board. It’s a public record. You may also look up all the lawsuits he has filed in state court and federal court in New Orleans to get the true picture. You know the old saying it is better to keep your mouth shut if you don’t know what you are talking about.

Next, we will examine how the board attempted to revoke the medical license of a New Orleans surgeon who has never even practiced dentistry using highly questionable investigative methods and employing tactics can only be described as extortion.

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Did AG’s office engage in witness tampering in CNSI civil trial? With this administration, nothing would surprise us

Posted in Attorney General, Contract, Contracts, Corruption, Courts, Crime, DHH, DOA, Ethics, Fraud, Governor's Office, Guest Columnist, Judges, Lawsuits, Transparency on March 30, 2015| 7 Comments »

By Robert Burns (Special to LouisianaVoice)

LouisianaVoice readers may recall a December 15, 2014 post outlining state defense attorneys desperately fighting to block a deposition of Stephen Russo,  Secretary of the State Department of Health and Hospitals (DHH), to be conducted by Lewis Unglesby, lead plaintiff attorney in the Client Network Services Inc. (CNSI) civil lawsuit against the state.  CNSI alleges that Gov. Jindal’s office, in “consultation” with AG Caldwell’s Office, unjustly cancelled its contract to provide Medicaid processing services to DHH after news of a federal grand jury having convened to consider potential improprieties in the awarding of the contract broke.  The federal grand jury probe went nowhere, but Caldwell nevertheless continued a probe with a state grand jury.  Ultimately, that state grand jury indicted former DHH Secretary Bruce Greenstein for nine counts of alleged perjury entailing testimony to that grand jury or statements made at his senate confirmation hearing.

At that December hearing, Judge Kelley ruled that Russo could be deposed and that any attorney-client privilege had clearly been waived.  The AG’s Office filed an immediate appeal writ with the First Circuit (notwithstanding the fact Judge Kelley stated, “There’s nothing to appeal because this matter is clear,”).  The First Circuit upheld Judge Kelley’s ruling and denied the appeal.  During that December hearing, Unglesby stated AG Caldwell’s Office had “quite likely acted illegally” in publicly releasing Greenstein’s grand jury testimony.  A hearing to quash that testimony transpired in Greenstein’s criminal trial on March 20, 2015.

At that hearing, Greenstein criminal defense attorney, John McLindon, argued for protection of the grand jury “body” not only for the Greenstein case but for all future criminal trials.  He stated that denying his motion to quash the grand jury testimony would send a horrible signal that grand jury secrecy was a “sham” in Louisiana.  He also stated that AG Caldwell’s Office essentially engaged in an ex-parte maneuver in that the AG’s motion to file the grand jury transcript into the public record was “buried” at the end of the order.  McLindon also argued that David Caldwell had been deceptive in describing the motion in court on the day it was presented as a “routine procedure” to enable McLindon to obtain a copy of the testimony, which McLindon indicated he was entitled to anyway.  Judge Daniel ruled that the AG’s office acted properly in filing the transcript into the public record, but McLindon indicated he may likely appeal Judge Daniel’s ruling.

Louisiana Voice has now reviewed extensive court filings in the civil case in which CNSI attorneys lodge even more allegations of serious wrongdoing on the part of Caldwell’s Office.  Those allegations entail the testimony of CNSI whistleblower Stephen Smith.

Smith is the CNSI employee who sent an anonymous email to Jeffrey Branch with the Center for Medicare/Medicaid Services (CMS) under the alias of “Kunego.”  The email was sent sometime after a meeting which Smith had with Norm Nichols, President of Molina Medicaid Services, and the company which has managed Louisiana’s Medicaid processing for decades and which filed a protest after CNSI won the contract.  Smith testified that Nichols indicated that, although Molina lost the protest, “there were still things in the process that were questionable.”    Smith has moved on to Orlando, Florida where he serves as Vice President for Sellers Dorsey, LLC, which is a health policy consulting company.

On May 1, 2014, CNSI attorneys conducted a video deposition of Smith in Orlando.  During the deposition, Unglesby presented Smith with a copy of what the AG had supplied as the “Kunego report.”  That report, which was filed under seal soon after CNSI’s lawsuit was initiated, contained notations of AG investigator Scott Bailey’s interview of Smith (but identified as “Kunego”) on May 10th and May 11th of 2012.  Unglesby then asked Smith to take a pen and underline those portions of the interview notes for which he wished to claim were his words and recollections of the interview and to refrain from underlining those items for which he did not wish to assess as having originated from him.  As readers can readily tell from reading the 7-page report, Smith was only willing to claim responsibility for between 50-60% of it as evidenced by what is underlined.  Nevertheless, the report contains some rather intriguing allegations, not the least of which is contained on page five.  On that page, the report states:  “Bobby Jindal has what Kunego calls an India to India ancestor driven background and network of connections that brought CNSI and Jindal together.”

The deposition continued for an extended period, so the parties agreed to recess and reconvene on a later date, which turned out to be July 8, 2014.  Upon reconvening the deposition, Unglesby made an inquiry of Smith regarding whether he’d had any communication with anyone from the AG’s Office.  Smith responded that Scott Bailey, the AG investigator who had interviewed him for the Kunego report, had telephoned him twice and had flown to Orlando to meet with him on June 28, 2014.  Smith indicated that Bailey stated that he needed to clarify the timeframe of the meeting with Nichols and also to inform him that the AG’s office had provided CNSI attorneys with the “wrong version” of the Kunego report.  Smith testified that Bailey informed him that, on May 1, 2014, he’d been provided with the “unedited” Kunego report when he should have been provided with the “edited” report, which is the report the AG’s Office intended to supply to CNSI attorneys.

Smith then explained that the unedited report, which CNSI attorneys provided at the May 1, 2014 deposition, was what had confused him so much because it had statements in the report which he knew he hadn’t made and therefore caused confusion as to how such statements were in a report of an interview of him.  When Unglesby pressed Smith on whether he asked Bailey how such allegations, including that of Jindal’s “India to India ancestor driven background” and that being responsible for bringing CNSI and Jindal together, got in his interview report, Smith indicated that he did not press Bailey for any explanation.

CNSI attorneys, upon learning of these phone conversations between Bailey and Smith, the in-person meeting between the two on June 28, 2014, and the fact that two reports of Smith’s interview responses even exist, prompted strong accusations of witness tampering on the part of AG Caldwell’s Office.  CNSI attorney Michael McKay of the law firm Stone Pigman, in a Motion to Conduct Discovery Regarding Certain Activities of the AG’s Investigator, accuses AG investigator Scott Bailey of “outrageous witness tampering,” and seeks to depose Bailey about his conduct and actions and also have the AG surrender documents, including the “edited” Kunego report, which were shared between Bailey and Smith, along with documents and dates of correspondence between Smith and Nichols.

CNSI attorneys allege that the AG’s Office filed the “unedited” version of the “Kunego report” under seal with the full knowledge that it contained material not attributable to Smith as a means to “influence the public” and to justify a six-month stay being sought by the AG’s Office for all proceedings.  Although the motion to stay was denied (and the First Circuit upheld the denial on June 7, 2013), the AG’s Office filed a motion to limit discovery and a motion for Judge Kelley to recuse himself on the basis Unglesby had previously represented him.  Judge Caldwell denied the recusal motion on July 1, 2013; however, Judge Kelley granted a motion to stay all proceedings on July 30, 2013.  CNSI attorneys asserted that Kelley’s decision was based largely on the “unedited” Kunego report which they contended the AG’s Office knew full well contained material not supplied by Smith and for which the foundation is unknown.  CNSI attorneys also expressed frustration that, as of the date of their filing, August 22, 2014, they still had not been provided with the “edited” Kunego report.

The hearing on CNSI’s motion to depose Bailey was argued before Judge Kelley on October 7, 2014, and he granted the motion.  At a bare minimum, CNSI attorneys have already exposed a high level of ineptitude on the part of AG Caldwell’s Office in that it provided the wrong “version” of the Kunego report given how critical that report is to both the civil and criminal trials.  It is mind boggling that a document that critical wouldn’t be triple checked as being the one the AG’s Office wanted to ensure CNSI attorneys received.  The mere fact they would later have to admit to Smith that “we gave the CNSI attorneys the wrong version” speaks volumes as to the AG Office’s ineptitude.  Of course, as CNSI attorneys argued in their support memorandum, it begs the question as to why two versions of the report even exist at all.

It remains to be seen how successful CNSI’s attorneys may be in exploiting their allegation of witness tampering by the AG’s Office.  Obviously, their ultimate goal is to have Smith’s testimony at trial declared inadmissible based on inconsistency and the actions of AG Caldwell’s Office.  If they succeed, a huge defense to CNSI’s alleged wrongful contract termination may go by the wayside and expose Louisiana taxpayers to a substantial monetary award.  Further, if Smith’s testimony is ruled inadmissible, a spillover benefit to Greenstein’s criminal trial may also arise.

When combined with the recent scathing WWL investigative report on AG Caldwell, one can only question if the biggest beneficiary of all of the extensive focus of the ineptitude and controversies of Gov. Jindal has been AG Caldwell himself.  It certainly appears that for an extended period, he was able to fly below radar on his office’s ineptitude and potential serious wrongdoing.  Perhaps recent revelations of his actions may provide an excellent source of campaign fodder for the October election for Louisiana’s next attorney general.

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Jindal appointee to State Auctioneer Licensing Board (who was subsequently teagued) recommends auctioneer boycott

Posted in Boards, Corruption, Governor's Office, Guest Columnist, Lawsuits, Politicians, Public Records, Teague, Transparency on March 22, 2015| 10 Comments »

By Robert Burns (Special to LouisianaVoice)

In 2001, I attempted to sell my home via the traditional means.  My listing was with ReMax, but I wasn’t happy with the snail’s pace everything seemed to move at.  It was not the fault of my agent but rather a simple reflection of the reality of traditional real estate listings in that they do not create any urgency to buy.

About five weeks into my listing, I noticed an ad in the real estate section of the paper for an upcoming real estate auction.  The ad got my attention, so I called the owner of the real estate auction company.  Thereafter, I attended four of his auctions before deciding that was the route I wanted to go.  My auctioneer, at that time, had a 20-year stellar record of successful auctions (it’s now nearly 35 years).  I was impressed by his professionalism and how the auction method could generate a firm, unconditional offer accompanied by a 10% liquidated damages deposit on a definite date and time that was within only about 30 days of executing the auction listing.  I utilized his services (even keeping my ReMax agent in the mix), and I was pleased with the results.  Consequently, within days of us closing, I called him and asked if I could join his company.  He blew me off in saying, “Sure, but you have to get your real estate license first.”  He later said he thought that was the last he’d ever hear from me, but I surprised him when I called only three weeks later indicating I’d procured the real estate license and asking what I needed to do next.

Over the next two years, he taught me everything one needs to know to be a successful real estate auctioneer.  His honesty, his integrity, and his ethics are beyond reproach, and they’re reflected in his auction results.  He instilled such confidence in me that I even formed my own auction company and began auctioning real estate properties myself.  I enjoyed helping solve people’s problems more than anything I’ve done in my entire professional career.

As many Louisiana Voice readers are aware, Gov. Jindal’s office contacted me within months of his taking office about serving on the Louisiana Auctioneer Licensing Board (LALB).  I would later learn I was contacted only because other applicants had felony convictions or other problems and were ineligible to serve.  I figured I had zero chance of being selected because I never contributed a dime to Jindal’s campaign and, except for 2003 (the year he lost), I didn’t even vote for him.  Nevertheless, I completed the application and figured that would be the end of it.  To my bewilderment, his office called me about six weeks later congratulating me on being selected to serve on the board.  I should have known something was wrong right then because it just didn’t make sense to be selected to serve on a board with no political allegiance to the governor.  Nevertheless, I naively felt honored to have been selected and anxiously looked forward to improving the auction experience for Louisiana consumers.

What I didn’t know was that I would encounter rampant racism on the board and that corruption was so prevalent that I had trouble believing any board could conduct itself in such an anti-consumer, auctioneer-biased manner.  I’ve written several articles already on this blog regarding what I encountered in my early days on the board, so I won’t repeat them here.

Even with all I encountered, however, I never dreamed the LALB could stoop as low as it has in the last six months.  Readers may recall the post entailing 84-year-old widow LALB complainant Betty Jo Story.  That case stands out as the most egregious abuse of any auction victim I’ve seen, yet LALB members found the auctioneer guilty of nothing and merely advised him to “go out in the hallway and work this out.”  Instead, he proceeded straight past Ms. Story and headed back to his home in DeRidder.  Thereafter, he refused to try and make things right with her, so she sued him in 36th JDC in DeRidder.  On October 29, 2014, serving in a pro-se capacity (and doing so quite well I might add), she obtained a judgment of $4,102.29, which the auctioneer paid within a week.

Even more disconcerting, however, was the preferential treatment granted to Brant Thomson, son of State Sen. Francis Thompson.  In that case, the LALB closed its investigation (finding no auctioneer wrongdoing), only to reopen it and find the auctioneer guilty and even file Thompson’s bond claim for him after he drafted a scathing letter to the LALB and had the presence of mind to copy to Ms. Holly Robinson, Gov. Jindal’s then-head of Boards and Commissions.  That incident is covered in this post.

Another complainant, Ms. Judy Fasola, claimed she was victimized by auctioneer Ken Buhler, who happens to have Marvin Henderson as his lead cheerleader with the LALB.  Henderson, a substantial contributor to Jindal campaigns, has historically exerted control over the board which, for whatever reason, is intimidated by him and his self-proclaimed (and no doubt accurately stated) ability to have members removed from the board with a mere phone call to the governor.  The LALB is afraid to assist any person, and that most certainly includes Fasola, in an auction complaint when such assistance may alienate Henderson (as pursuing a bond claim entailing Buhler or any affiliate of his would).

LALB cited a number of reasons for refusing to file a bond claim for Fasola at its November 5, 2014 meeting.  Thereafter, on January 13, 2015, Fasola refuted the LALB members’ November statements as being factually incorrect (a claim substantiated by prior videos).  That fact notwithstanding, at its March 10, 2015 meeting, the LALB, via a prepared statement drafted by legal counsel Larry S. Bankston, but read by his associate, Jenna Linn, stated that the board has “total discretion” regarding whom it wishes to file bond claims for and whom it wishes to decline to do so.  That is not a joke. That’s what Linn read from Bankston’s letter.

Given this public statement, perhaps it would be appropriate that consumers refrain from using the services of auctioneers.  The rationale is simple.  If a primary source of consumer protection is the auctioneer bond, and the LALB is now publicly asserting that it can cherry pick whom it will file bond claims for, that leaves consumers at the whim of political connections affiliated with the board.  When combined with the board’s demonstrated history of filing a claim for a politically connected alleged victim like Brant Thompson but declining to do so when it may alienate political powerhouse auctioneer Henderson, why should any consumer have faith and confidence in an auctioneer?  It’s time to face reality.  Though there are exceptions, the auction industry is corrupt and the board designed to protect consumers is even more corrupt.

I conclude by providing a webpage of Fasola’s three-meeting ordeal, complete with links for documents and video coverage.  Additionally, I provide this webpage of video highlights of the March 10, 2015 LALB meeting.  Linn rudely cut off my public comment when I referenced “FBI investigations,” so I provide an off-site assessment of why she likely recoiled when I uttered those words.

I have no idea if the next governor will do anything to clean up the mass of corruption, nepotism, and cronyism that exists on the LALB.  If he doesn’t, I would recommend a continued boycott of auctioneer services.  To do otherwise would be an injustice to the many clients and bidders I fought so hard to ensure access to experienced honest, open, and transparent auctions.

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ATC Director Troy Hebert rivals his boss in cold-hearted demeanor: fires agent who is recovering from heart attack

Posted in ATC, Courts, Ethics, Governor's Office, Lawsuits, Teague on March 13, 2015| 9 Comments »

Troy Hebert strikes again. http://www.atc.rev.state.la.us/commissioner.php

The controversial head of the Louisiana Office of Alcohol and Tobacco Control (ATC), who already has racial discrimination lawsuits pending against him after settling similar claims, has fired a veteran ATC agent while the agent was recovering from a heart attack after first having failed to do so while he was on active duty in the Coast Guard Reserve.

Hebert fired agent Brette Tingle of Prairieville by letter dated Feb. 9 which was hand delivered to Tingle’s home where he was convalescing from a heart attack.

Hebert took the action based on accusations of payroll fraud and misuse of federal grant funds after three investigations by two separate state investigative agencies cleared Tingle of any wrongdoing—and after Tingle, who is white, testified on behalf of three black ATC agents who filed a federal discrimination lawsuit against Hebert. Tingle said Hebert told him, “I’m going to f**k with Charles (Gilmore) first, then with Larry Hingle” in an effort to force them to leave the agency. Gilmore and Hingle are two of the three black agents who have filed suit against Hebert and ATC.

Tingle’s attorney, J. Arthur Smith of Baton Rouge, in an 11-page letter, has appealed the firing, accusing Hebert of “agency shopping” in his attempt to build evidence against Tingle in retaliation for his testimony in support of his fired colleagues.

Hebert’s tenure since being appointed by Bobby Jindal in November of 2010 has been tumultuous at best and disruptive to the entire agency, according to several agents who have talked privately—and publicly—with LouisianaVoice.

One of the most absurd rules put in place by Hebert was one which requires agents to spring to their feet and offer a verbal “good morning, Commissioner” whenever Hebert entered a room where agents were gathered.

Another order which conceivably could have placed an agent’s life in danger was his instruction to an agent who had been working undercover in bars in New Orleans in efforts to buy illegal drugs from dealers to cease undercover activities and to return to patrolling those same bars in full uniform.

Hebert’s accusations of payroll fraud stem from a GPS tracking system installed on ATC vehicles which Hebert said showed Tingle’s vehicle was at his home during hours he said he was working.

In leveling that accusation against his former agent, Hebert ignored that fact that Tingle often worked undercover in tandem with other law enforcement agencies, including the Ascension Parish Sheriff’s Office and the New Orleans office of the Food and Drug Administration (FDA). Together, they would conduct regular alcohol and tobacco compliance checks and it was commonplace for one of the agents to leave his state vehicle behind while conducting checks since using the state vehicle would defeat the purpose of undercover work.

When Hebert’s office was found out of compliance and ineligible for more than $100,000 in grant money from the U.S. Drug Enforcement Agency (DEA), Hebert laid the blame at Tingle’s feet even though the ATC compliance officer was Louis Thompson and not Tingle, attorney Smith said, adding that Thompson had been in charge of compliance for ATC for the entire 10 years that Tingle served as part of the DEA task force.

“These allegations are your third attempt to defame, intimidate and retaliate against Mr. Tingle,” Smith said, “because he has assisted and participated in the investigation and proceedings in connection with the EEOC charge and subsequent litigation in the case of Charles Gilmore.”

Gilmore is one of the black agents who has filed a federal lawsuit against Hebert and ATC.

Coincidentally, when the Jindal administration decided to go after former ATC Director Murphy Painter, the Louisiana Department of Revenue (LDR), which is over ATC, immediately launched its own investigation of Painter and federal charges of malfeasance were brought against him. He was subsequently acquitted and then won his own civil defamation suit against his accusers.

It was first shown by LouisianaVoice and later in his trial that the charges against Painter were retaliatory in nature and initiated by the Jindal administration after a dispute over his refusal to issue a permit to Budweiser to erect a tent at Champions Square across from the Louisiana Superdome. https://louisianavoice.com/2013/02/06/emerging-claims-lawsuits-could-transform-murphy-painter-from-predator-to-all-too-familiar-victim-of-jindal-reprisals/

Oddly, LDR, which has known of the Gilmore allegations since October of 2012, has yet to interview anyone about Gilmore’s claims or to initiate an investigation into the charges.

In his letter, Smith said the first attempt to bring charges against Tingle “was initiated when you (Hebert) employed (Baton Rouge law firm) Shows, Cali & Walsh to draft documentation based on one-sided and uncorroborated information. This purported ‘legal opinion’ was found to be unreliable by the Office of Inspector General (OIG).”

No surprise there. Shows, Cali & Walsh, which held 16 contracts worth a combined $3 million, skated perilously close to sanctions last year over evidence manipulation in the case of overheating on death row cells at Louisiana State Penitentiary at Angola. https://louisianavoice.com/2014/01/03/baton-rouge-law-firm-with-3-million-in-state-contracts-faces-legal-sanctions-over-evidence-manipulation-in-angola-lawsuit/

“Your second attempt,” Smith continued, “was initiated in 2013-2014 when you sent a complaint to the OIG alleging that (Tingle’s actions) constituted a criminal mater.

“…OIG conducted an extensive investigation …and determined that your allegations were not accurate enough to be utilized in making a case of payroll fraud.”

Bear in mind here that Hebert is head of a law enforcement agency for the State of Louisiana and apparently does not have the capability of building a criminal case or even knowing what constitutes criminal activity.

Not that he hasn’t tried.

“Despite the overwhelming evidence supplied to you by the OIG, …you continued your campaign to defame, intimidate, and retaliate against Mr. Tingle by appealing to … the Louisiana Department of Public Safety (State Police),” Smith wrote.

“You again asserted your professed belief that your alleged facts rise to the level of a crime and you were again informed that your purported facts did not rise to the level of being sufficient to be utilized in a court of law.

“The practice of appealing to multiple investigatory agencies in search of an investigation that supported your ulterior purpose is known in law enforcement as ‘agency shopping’ and is improper,” he wrote.

Smith said that Hebert launched his first investigation into Tingle during the time when Tingle was on active duty in the U.S. Coast Guard and that following a year-long OIG investigation, Tingle and Hebert were informed by letter that indicated no charges would be brought against Tingle.

Even as Hebert was telling Tingle that he intended to get rid of two black supervisors, including Larry Hingle, he was also instructing Hingle to investigate Tingle and Hebert later told Hingle to also investigate Tingle’s wife, also an ATC employee who had recently retired.

Hingle joined Gilmore and a third black ATC agent, Daimian McDowell in filing a federal lawsuit against Hebert, ATC and LDR on Oct. 2, 2012, and Tingle was listed as a friendly witness for the plaintiffs.

More details of the events in Hebert’s office will be forthcoming in a subsequent installment this weekend. Space simply does not allow this full story to be told in a single post.

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Fans of mystery, intrigue and political corruption can have a field day with DA motives in Livingston Parish investigation

Posted in Audit Reports, Auditor, Contract, Contracts, Corruption, Courts, Ethics, Fraud, GOHSEP, Lawsuits, Politicians, Waste on February 24, 2015| 8 Comments »

By Robert Burns (Special to LouisianaVoice)

When Hurricane Gustav struck south Louisiana on Sept. 1, 2008, almost three years to the day after Katrina, it set in motion a series of events that would ultimately:

  • upset the Livingston Parish political structure;
  • leave the parish facing a bill for more than $40 million in cleanup costs;
  • see a call for but never a follow up on an investigation into the formation of a fictitious corporation (at a fictitious address headed by a fictitious person) which somehow managed to be the only bidder on a lucrative contract;
  • result in the arrest of another contractor who was also serving as an FBI informant to help root out fraud, and
  • leave residents more than six years later still wondering who are the good guys and who are the bad guys.

First, some background.

The massive cleanup that followed Gustav required fast action and, regrettably, such fast action oftentimes opens the door for governmental abuse. The Federal Emergency Management Agency (FEMA) declared that to be the case in Livingston Parish’s cleanup, and the agency denied an astounding $59 million in clean-up costs.

Crucial to FEMA’s decision was Corey delaHoussaye, a contractor hired by Livingston Parish to assist with U.S. Army Corps of Engineers permitting issues nearly a year after the storm struck.  DelaHoussaye, coincidentally, also served as an FBI informant during the cleanup.  Livingston Parish District Attorney Scott Perrilloux, along with the State Office of Inspector General (OIG), have accused  delaHoussaye of submitting his own fraudulent invoices for hours they assert he did not perform work as part of his $2.3 million billings.  DelaHoussaye attorney, John McClindon, contends that the OIG got a search warrant for delaHoussaye’s residence on July 17, 2013 but delayed executing it and arresting delaHoussaye for eight days so it would coincide with a council meeting to approve delaHoussaye’s final $379,000 in invoices.  DelaHoussaye wasn’t paid, and he sued the parish for nonpayment.

Meanwhile, Perrilloux sought an indictment against delaHoussaye, but he came up one vote short in an 8-2 vote of the grand jury in December of 2013.  Undeterred, Perrilloux proceeded with a bill of information containing 81 counts, including 73 of filing false public records, but last Friday Perrilloux dropped 19 of those 73 counts.

On Monday, 21st Judicial District Judge Brenda Ricks ruled that insufficient evidence exists to proceed with a trial—a major victor for delaHoussaye.  Perrilloux presented only one witness during Monday’s hearing: OIG investigator Jessica Webb, who testified that, during times delaHoussaye charged the parish for hours worked, he sometimes was at an anti-aging clinic, at Greystone Country Club playing golf, or at Anytime Fitness working out.

McClindon, calling the OIG’s investigation “half baked,” said the OIG’s office seized his client’s computers and “looked at what they wanted to look at,” ignoring emails and failing to talk with anyone.

Similarly, at the trial of Murphy Painter, former director of the State Office Alcohol and Tobacco Control (ATC), former OIG investigator Shane Evans testified that he merely “wrote down” what ATC employee Brant Thompson said to him regarding Painter’s being “manic depressive, out of control, and selectively enforcing alcohol statutes,” and admitted the OIG did zilch to corroborate Thompson’s assertions even though it was Thompson’s initial characterization that reportedly prompted Gov. Bobby’s firing of Painter. (Subsequent details later revealed Painter’s firing was steeped in the time-honored tradition of Louisiana politics as usual.) https://louisianavoice.com/2013/02/06/emerging-claims-lawsuits-could-transform-murphy-painter-from-predator-to-all-too-familiar-victim-of-jindal-reprisals/

A company called Comprehensive Business Solutions, with an address on Coursey Boulevard in Baton Rouge, was created by someone named Patterson Phelps of Mandeville in March of 2010, according to corporate records filed with the Secretary of State’s office.

That date was just prior to the Livingston Parish Council’s issuing invitations to bid on a lucrative contract for cleanup.

The only problem is there is no such business at the address given and in fact, never was, and no one has been able to ascertain who Patterson Phelps is, other than speculation that it was an alias for a member of the parish council who was attempting to obtain the contract for himself.

A spokesperson for the Secretary of State said the corporate papers were filed electronically with payment made by credit card and that no records exist that would reveal who was actually responsible for creating the shell company.

The parish council did indicate it would instruct Perrilloux to conduct an investigation into the identity of the mystery person, but no results of any investigation, if it was ever conducted, have been made public.

Perrilloux, apparently fuming over Ricks’ ruling, said after the hearing that he would proceed with trial anyway and added, “Just because they wear a black robe doesn’t mean they know everything.” Legally, Perrilloux cannot proceed with a trial unless Ricks’ ruling is overturned by the First Circuit Court of Appeal or the Louisiana Supreme Court. He later said he would appeal the decision.

Brian Fairburn was Livingston Parish’s Emergency Manager and Coordinator for Homeland Security at the time Gustav struck.  His job was to hire monitors who would oversee operations to ensure FEMA reimbursement eligibility.

Fairburn testified that Mike Grimmer, then-Livingston Parish President, indicated to him that he had grave concerns regarding some of the itemized charges on the FEMA project worksheet and likely would not sign off on it.  When asked why, Fairburn indicated Grimmer told him, ‘“The costs are too high and we have permitting issues.’ (He) specifically told me we were taking kickbacks, that we were just out there creating work for these contractors to do.”  When asked whom Grimmer asserted was taking kickbacks, Fairburn responded, “Jimmy McCoy (Councilman from District 2), and he included me as being in on it also.” Fairburn added that Grimmer, “tried to ruin McCoy,” and that he “wanted to show that there was trouble, corruption, and crime in the parish.”  Fairburn also testified that he was terminated soon after the Gustav project but added that when Layton Ricks defeated Grimmer for parish president, he was rehired.

Brian Fairburn testified that during a meeting on November 26, 2008, Eddie Aydell of Alvin Fairburn and Associates (no relation to Brian) expressed serious reservations about proper permitting with the Army Corps and that Aydell was “scared” the Corps would assert that permits should have been issued before work was begun.

It was at that juncture that delaHoussaye was hired to assist with permitting issues.  Brian Fairburn said that McCoy said that the parish “would not” be obtaining any Corps permits and that Grimmer “shut the project down,” after which the Corps issued a cease and desist order on drainage projects.

FEMA’s attorneys were not happy with state and parish attorneys’ attempts to turn the hearing into a trial of delaHoussaye, and they strongly objected to 20 exhibits and depositions, including photographs of delaHoussaye and his son, which they said were unrelated to the hearing.  FEMA attorney Linda Litke said, “delaHoussaye was hired a year after the disaster in 2009 to basically go through the documentation and clean up the mess……  The parish attempted to criminally indict him…..They have now attempted to proceed with criminal action against him without an indictment.  It is reprehensible that they would bring this documentation in this case……DelaHoussaye is a confirmed FBI informant.  He was a whistleblower, and that is why the parish has gone after him.”

Perhaps the most riveting testimony was that of former Parish President Mike Grimmer, who testified that McCoy signed a contract addendum even though Grimmer was the only one with authority to do so.  He said he was “unaware the contract addendum was even out there.”  He indicated the addendum greatly increased the prices, including an increase in the per linear foot price.

Grimmer stated that he got calls from irate homeowners regarding crews, “trespassing on their properties….. and the trees had been taken with no permission.”  Grimmer also testified he obtained invoices for payment on work performed at local schools and North Park which had already been paid by other local agencies.  He referenced Legislative Auditor Daryl Purpera’s report which he testified that he’d requested.  He said it reinforced his concerns about documentation problems for cleanup operations. Grimmer’s response took “no exception” to the report.

That report also cited a contractor for hiring direct family members of Council members McCoy and Don Wheat which the report said may have violated ethics laws, so the matter was referred to the Louisiana Ethics Board.  Wheat, Councilman from District 6, responded angrily to the report and stated that Gov. Jindal’s GOHSEP’s Office had indicated the FEMA report was “fundamentally flawed” and on appeal and that Purpera, “continued with the same flaws and I urge you to correct your mistakes.”

Grimmer expressed shock when he attended an Office of Emergency Preparedness (OEP) meeting in May of 2009 and a $42 million tab for wet debris removal was “dropped in my lap.”  Grimmer asked for a breakdown and, on June 9, 2009, he got one and an indication that the final tab was estimated at $92 million.  He refused to sign off on the $42 million and verbally instructed all work to cease, and the Army Corps followed up with a written cease and desist order shutting down all drainage work.

FEMA attorneys then provided the panel with a handout of a power point presentation created by Grimmer entitled, “The Truth about the Debris Cleanup.”  Slides were presented depicting:

  • an oak tree removal for $8,415;
  • two other single-tree removals for $6,570 and $4,600, and
  • a pile of limbs for $2,805.

Grimmer said those types of vastly inflated costs prompted his decision to shut down the entire project.

Grimmer, over the objections of state and parish attorneys, last May told a three member arbitration panel that he alone would have been accountable to Purpera if he’d approved the project worksheet and that contractors, monitors, councilmen, and others would all be “gone and happy.”  He expanded on how the whole episode and his decision had adversely impacted him in the community, with long-time friends and business associates distancing themselves from him and people being angry at him but that, “at the end of the day,” he felt he’d made the right decision and felt vindicated by Purpera’s report.

Cross examination at that hearing focused on Grimmer’s frosty relationship with council members and his having referenced five such members as “the five amigos.”  Grimmer confirmed McCoy and Wheat were included in the five.  Grimmer admitted that delaHoussaye shared the fact that FBI investigator Steven Sollie had contacted him and that he was cooperating in an FBI investigation of the Gustav cleanup operations.  State and parish attorneys sought to get Grimmer to admit that he “had no interest” in the project’s costs until he obtained knowledge of the ongoing FBI investigation, a charge Grimmer vehemently denied.  Grimmer also indicated that, though he couldn’t remember which one, a FEMA monitor was paid $20,000 to make debris FEMA-eligible.

The panel ruled in FEMA’s favor.

If Perrilloux follows through and if the state’s and parish’s appeal hearing of FEMA’s decision is any guide, a trial is likely to air some of the dirtiest elements of Livingston Parish political corruption.  Louisiana Voice has obtained a transcript of the 2,197 page appeal hearing, and the contents are interesting, to say the least.

Perhaps that may be why delaHoussaye attorney McClindon said after Ricks’ ruling, “It would probably be best for us all to sit down and work this whole thing out.”

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