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Archive for the ‘Public Records’ Category

Pre-trial intervention (PTI) programs, in theory at least, are designed to give those charged with a first offense—such as driving while intoxicated (DWI), for example—to keep the conviction off their record by participating in a program of community service or a series of classroom sessions, usually extended over a period of several weeks.

The purpose of the programs, again in theory, is that not every person charged with an offense should be subjected to criminal prosecution and that there are those who can be prevented from becoming repeat offenders through proper intervention.

The problem with Louisiana’s PTI programs is that there is no uniform application or oversight, allowing local district attorneys complete autonomy in how the programs are administered.

Instead of serving their intended purpose, many local PTI programs have morphed into cash cows and as such, lend themselves to widespread abuses at the expense of other programs such as indigent defender boards and local law enforcement.

In May 2018, former Baton Rouge Advocate (now Associated Press) reporter Jim Mustian wrote an excellent story that illustrated that very point. His entire story may be seen HERE.

Mustian showed that from 2012 to 2017, two parishes in particular had taken advantage of the program to create a lucrative source of income for prosecutors while a third did even better during the years from 2012 to 2017.

Calcasieu Parish District Attorney John DeRosier saw income for his office increase threefold, from $556,000 in 2012 to $1.65 million in 2016. Jefferson Parish did even better with its income from PTI programs increasing four times, from $335,000 to $1.37 million during the same period.

But Rapides Parish DA Phillip Terrell has turned the practice into an art form, boosting his PTI revenue by a factor of seven, from $302,000 in 2012 to a mind-blowing $2.2 million in 2017.

Still, that influx of new dollars didn’t keep Terrell from requesting more than $2.5 million in parish funds for his office in 2018 despite a looming budgetary shortfall of $427,000 for the parish.

That was enough to attract the attention of online publication Politico, which normally devotes its attention to stories of national and international significance than to the budgetary problems of a parish situated in the middle of Louisiana. Politico’s story can been read in its entirety HERE.

Rapides Parish Treasurer Bruce Kelly wondered why the DA’s office was suddenly asking for more funds than at any time in his 30 years in the parish treasurer’s office knowing, as he did, that the DA had a new fleet of vehicles with leather seats.

He soon learned why.

Pre-trial diversion, otherwise known as pre-trial intervention, or PTI.

The DA’s income from court fines had dropped by nearly half, from $900,000 to $500,000 over the past three years. That corresponded with a similar drop in traffic tickets issued—from 12,000 per year to 7,000.

At the same time, however, Terrell’s office had significantly increased its PTI program, allowing offenders to pay money to the DA in exchange for charges being dropped and their cases dismissed, thus keeping their tickets or arrests off their records as though they never happened.

Offenders were charged dismissal fees ranging from $250 for traffic tickets, $500 for misdemeanors and as high as $1,500 for felonies.

And Terrell’s office, Kelly learned, was keeping that money for itself—money that should have gone into the parish’s general fund to be shared with indigent defender offices and the sheriff’s office.

Believing Terrell was depriving the parish of fine money to which it was entitled, Kelly and the parish leadership filed suit against Terrell’s office in an effort to get the court to force the DA to share its PTI revenue.

Terrell responded that he could make as much as he wanted through PTI because…well, because the law didn’t say otherwise.

And he was right in the assertion that there were no statewide standards to the implementation and operation of PTI programs and thus, no restrictions as to his ability to exploit the program.

To make his case, he brought in a hired gun in the person of Hugo Holland, a prosecutor who normally works only as a prosecutor in criminal cases and who appears to be on the payroll of several parish district attorneys simultaneously, from Caddo Parish in north Louisiana to Calcasieu Parish in the state’s southwestern extreme.

The battle between Terrell and Rapides Parish Police Jury took on true Trumpian overtones when Holland threatened the police jury members with investigations into their own use of funds if they did not agree to drop their fight with his client. When that tactic failed, Terrell filed a countersuit arguing that he did not owe any money to the parish and calling the police jury’s lawsuit “politically-driven.”

It’s easy to see why Terrell is so possessive of his sudden stream of income—and why similar battle lines could be drawn between prosecutors and parish governing bodies as more and more DAs are made aware of the untapped revenue windfalls currently available to them.

It’s also pretty easy to predict an intense lobbying campaign by the Louisiana District Attorneys Association (LDAA) to protect PTI programs from regulation should some state lawmaker have the temerity to introduce legislation to rein in such a lucrative enterprise.

I’m willing to bet even money that Arkansas would have a better chance of beating LSU today than any such bill would have of making it out of committee.

 

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Mike Edmonson, a veteran of 35 years with Louisiana State Police (LSP) and nine years as the state’s top cop, is reported to have been named Program Administrator for Police Patrol by the New Orleans French Quarter Management District (FQMD).

LouisianaVoice received an unconfirmed report on Tuesday that Edmonson, who retired at $128,559 per year after being forced out in March 2017, had been named to the post, advertised by the FQMD earlier this year.

An LSP spokesman said he had heard similar reports but could not confirm them.

Prior to making that request, LouisianaVoice attempted to obtain verbal confirmation from the New Orleans municipal offices but it took six calls to various offices before anyone even answered the phone.

Efforts to confirm the appointment and the salary of the position with the New Orleans mayor’s office by email met with referrals of all public records requests to an outfit called NextRequest.

NextRequest, headquartered in San Francisco, serves as a clearing house for public records requests for governmental agencies, schools, special districts, etc.

Apparently governmental agencies’ rush to privatize services now extends to responding to and complying with public records requests.

Edmonson retired from LSP in March 2017 following a San Diego conference attended by several LSP officials, including four troopers who made the trip in a state vehicle and who took a side trip to Las Vegas and the Grand Canyon in 2016.

The investigation of that trip resulted in two of the most convoluted, confusing and controversial—and conflicting—findings by the State Board of Ethics. In April 2018, the ethics board cleared—in secret—the four troopers of any wrongdoing, concluding that they were simply following orders from higher-ups and had taken the vehicle and the side trip with the approval of Edmonson.

Sixteen months later, in August of this year, that same board CLEARED EDMONSON of any wrongdoing for that same trip. Edmonson, it should be noted, was represented before the board by Baton Rouge attorney Gray Sexton who once headed the ethics board.

Sexton said at the time that other agencies investigating Edmonson were dropping their investigations, as well. It’s unclear whether or not the FBI has actually dropped its investigation of Edmonson, who was harshly criticized for his management practices in an audit by the Legislative Auditor’s office.

If reports of Edmonson’s hiring are true, he would find himself working in a familiar—and friendly—atmosphere, given his ties to Robert Watters, owner of RICK’S CABARET.

Edmonson was instrumental in negotiating a cooperative endeavor agreement (CEA) whereby LSP would provide patrol duties in the French Quarter to augment New Orleans police.

In 2015, French Quarter residents approved a special quarter-cent sales tax increase in the district to pay for a PERMANENT LSP PRESENCE. Thirty-two troopers from Troop N were assigned permanently to the Quarter.

When proceeds from the sales tax proved insufficient, the Louisiana Legislature appropriated an additional $2.4 million to cover the shortfall.

In December 2018, a STATE AUDIT said LSP had not provided proof that $2.4 million in state funds set aside for policing the Quarter was actually spent there, a finding with which LSP disagreed.

If Edmonson has indeed been appointed program manager for the district, he will undoubtedly have interactions with his old agency that he left under a cloud two-and-one-half years ago.

 

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It’s been a busy last couple of weeks, to say the least:

  • Democratic Governor John Bel Edwards was forced into a runoff with millionaire businessman Eddie Rispone who had never run for office before and who offered no specific solutions to Louisiana’s problems other than to say he was going to “fix it,” a-la the late Ross Perot and that he would lower taxes a-la Bobby Jindal.
  • In the all-important races for the Board of Elementary and Secondary Education, the big money was the big winner. Seven candidates backed by LABI and its PAC money won seven seats on the board, demonstrating in no uncertain terms that it’s not who has the best ideas and who is the best-qualified, but who has the money that determines who gets elected in Louisiana. Voters continue to listen to the sound bites and to read the brochures that clutter our mailboxes instead of educating themselves on the issues. Perhaps the completion of an intensive civics course, complete with a required essay on all the candidates should be a criteria for voting.
  • Two Soviet-born emigres managed to penetrate the White House’s inner circle by cozying up to Rudy Giuliani and Donald Trump by pouring $350,000 into federal and state Republican campaigns and contacted Ukrainian officials at the behest of Giuliani in his efforts to dig up information on Democrats. No word if any of that $350,000 went into the Rispone campaign.
  • Trump threw erstwhile allies Kurds under the bus by pulling out American forces, using has his excuse the somewhat dubious claim he wanted the U.S. out of the mess in the Mideast even as he was committing more troops to Saudi Arabia to aid that country in its fight against Iran.
  • LSU won a classic heavyweight match-up with Florida and moved into the number two spot in the national rankings.
  • The Hard Rock Café Hotel in New Orleans that was under construction in the French Quarter collapsed, leaving at least two dead and raising questions about construction inspections similar to those raised in a similar incident in Baton Rouge more than 40 years ago. That’s when a building undergoing construction on Airline Highway collapsed, killing three workers and injuring three others. The building had recently undergone its “final inspection” which pronounced it “ready for occupancy.”
  • In a textbook SLAPP (Strategic Litigation Against Public Participation) lawsuit, the Ascension Parish Council responded to a public records request from former employee Teleta Wesley by filing a lawsuit against her. The same course was taken by the 4th Judicial District Court (Ouachita and Morehouse parishes) judges against The Ouachita Citizen newspaper and by the Welsh Town Council against town council member Jacob Colby Perry. Similar action was also threatened but never taken by Lake Charles attorney Russell Stutes, Jr. in response to public records requests submitted by Billy Broussard who was never paid by Calcasieu Parish to remove debris from Hurricane Rita in 2005. Such lawsuits are filed for the sole purpose of shutting up critics who generally don’t have the resources to fight such nuisance lawsuits.

Several surveys came out recently that revealed some interesting facts.

  • Louisiana, with a poverty rate of 18.6 percent in 2018 (down from 19.7 percent the year before), improved somewhat to the fifth-poorest state in the nation. The state came in ahead of (in order) New Mexico, Arkansas, Mississippi and West Virginia.
  • Monroe, meanwhile, ranked as the 28th poorest metropolitan area in the U.S. with a median household income of $44,353 and a poverty rate of 20.7 percent and with 12.2 percent of households with incomes under $10,000 (both among the 10 highest rates). Not to be outdone, the Shreveport-Bossier City metro area was 14th-poorest with a median household income of $41,969 and a poverty rate of 20.4 percent.
  • Louisiana’s state retirement system, often criticized by the numbers-crunchers, while not on the best financial footing, was nevertheless, in “only” the 20th worst shape (putting the state not very far from the middle of the pack) with a funded ratio of 65.1 percent and a total pension shortfall of $18.2 billion (19th highest). That compares favorably with Kentucky’s funded ratio of only 33.9 percent and its $42.9 billion shortfall (the worst in the nation) and next-door neighbor Mississippi, which had a funded ratio of 61.6 percent but a total pension shortfall of $16.8 billion, two spots better than Louisiana’s.
  • Finally, a survey of the worst colleges in each state was done using U.S. Department of Education, Niche and College Factual (college ranking services) data based on graduation rates, costs of the university, salaries post-graduation, average student debt, and return on investment. Grambling State University near Ruston was deemed the worst in Louisiana. Grambling has a anemic graduation rate of only 10 percent and students leave with an average student debt of $27,656. With a median post-graduation salary of only $28,100, the default rate on student loans is 16.1 percent. By comparison, the worst college in Mississippi is Mississippi Valley State, which has a graduation rate three times that of Grambling at 29.8 percent and a loan default rate of 18.9 percent on average student loans of $32,252. In Arkansas, the worst is Philander Smith College in Little Rock which has a graduation rate of 39 percent but a default rate of 20.1 percent on average student debt of $26,616. The worst school in the nation is DeVry University. While it operates in nearly every state, its physical location is Illinois, so it was ranked as the worst in that state with a graduation rate of only 20.6 percent and average debt of $30,000 per student.

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To paraphrase Ronald Reagan: here they go again.

The expenditure of public funds, under the law, is supposed to be just that: public.

But trying to pry an accounting of legal costs associated with the state’s defense of 4th Judicial District law clerk Allyson Campbell has proved to be somewhat problematic, to say the least, for a north Louisiana publication.

The Ouachita Citizen in West Monroe is the only newspaper willing to take on the powers that be and so far, it has encountered a huge stone wall.

[The unwillingness of the Monroe News-Star to involve itself in the fight for the public’s right to know may be attributed to two factors: (1) it’s a Gannett publication which in and of itself, lends itself to mediocrity, and (2) Campbell once worked part time as something of a gossip columnist for the paper. Of course, it didn’t hurt that her father was an executive with Regions Bank and is married to the daughter of influential attorney Billy Boles, or that Campbell is the sister of Catherine Creed of the prominent Monroe law firm of Creed and Creed. Got all that? If not, here’s a LINK to one of our earlier stories about Campbell.]

But back to the latest developments in this ongoing saga. The Citizen made a by-the-books public records REQUEST of the Division of Administration (DOA) in which it sought an accounting of legal costs in defending Campbell in a lawsuit brought against her by Stanley Palowsky, III, for damages incurred when she “spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly handled” his petition for damages against a former business partner.

It seems that some 52 writ applications went missing for more than a year only to be found in Campbell’s office where, incredibly and inexplicably, she was using them as an end table in her office.

So, how DOA respond to the Citizen’s request? Basically, it said attorney’s bills for legal services were exempt from production under an exception pertaining to pending claims.

That’s debatable. Yes, in ongoing litigation, communications between attorney and client are definitely privileged. But a simple accounting of expenditures for legal representation has nothing to legal strategy or negotiations. It’s an expenditure, pure and simple, and should be available as a public record.

The Citizen, in its story, pointed out that Christian Creed, Catherine Creed’s husband and law partner, contributed $5,000 to Attorney General Jeff Landry’s campaign in November 2015.

But more significantly, LouisianaVoice combed through campaign reports and found that Christian Creed, Catherine Creed, and the Creed Law Firm were quite active in their support of other candidates.

Gov. John Bel Edwards was the beneficiary of $25,000 in contributions from both Catherine and Christian Creed over the three-year period of 2015-2107, and Commissioner of Administration Jay Dardenne received $2,000 in contributions from Christian Creed in 2013 and 2014.

Attorney Scott Sternberg of New Orleans is representing the Citizen and by letter dated August 27, gave DOA until today (August 30) to comply with the request.

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There are certain procedures that must be followed in submitting public records requests to public agencies and with many agencies, if the procedure is not followed to the letter, you will find cooperation nonexistent.

Such is the case with Dr. Arnold Feldman, a pain management physician whose license was suspended by the Louisiana State Board of Medical Examiners which, just to be sure that he has been silenced, imposed a half-million dollar fine against him.

Dr. Feldman is unfamiliar with the proper method of making public records requests, as evidenced by a number of his requests that LouisianaVoice has obtained. For example, he has on occasion asked for general information instead of requesting specific documents.

In such cases the board, like many state agencies, is unforgiving, responding that his request is “overly broad” without explaining how—or by not responding at all.

It helps if you preface your request with: “Pursuant to the Public Records Act of Louisiana (R.S. 44:1 et seq.), I respectfully request the opportunity to review the following information:

Then you may wish to quote certain passages from the state’s public records statute, i.e. the penalties that non-compliance with the request carry. That puts officials on notice that you are knowledgeable about the public records statute.

And even though Dr. Feldman’s request did not follow these procedures, there are those occasions where the official response is so absurd that the official efforts to deny information becomes obvious.

For example, Dr. Feldman made one request that granted, did not follow protocol when he inquired as to whether or not Hammond attorney George M. Papale had ever been elected as a judge (he has not).

And while the request itself did not specifically ask for a public record, the board’s response in a JULY 9 LETTER by Dr. Vincent Culotta, executive director of the board, was laughable—and incorrect:

“…responses to public records requests are sometimes done with the assistance of counsel and we object to producing such information such information for your request on grounds of attorney-client and work product privileges.”

That is pure B.S. and Culotta knows it. And if he doesn’t, he should be fired because it’s part of his job to know.

Virtually every state agency, upon receiving any request for public records, runs that request by its legal counsel—meaning that practically all public records requests are done “with the assistance of counsel.”

By that line of reasoning, all public records requests could be refused.

A week earlier, in a JULY 2 LETTER, Dr. Culotta responded to Dr. Feldman:

“Specifically, you requested: ‘Has George Papale, who has been paid by this board, ever been an elected judge? Please provide me with a copy of his complete file.’

“I outline for you the objections of the Board to the scope of your request and specifically assert these objections to the production of any of the materials listed therein, if any exists, for the following, non-exhaustive reasons:”

One of the reasons given cited a state statute which provides that the “records and documents in the possession of any agency or any officer or employee thereof, including any written conclusions therefrom, which are deemed confidential and privileged shall not be subject to subpoena by any person or other state or federal agency.”

The key here is the phrase “which are deemed confidential and privileged.”

In the case of all public employees, from the governor on down, certain information is considered public information. This includes job titles, dates of hire and termination, salaries, official travel records, and expense vouchers (hotels, meals, mileage) and payments. In the cases of contract employees, copies of such contracts, terms of payment, job duties, invoices and payments are all considered public records.

How do I know this? I have made similar requests—and received documents—from many state agencies, one of the most frequent being the Louisiana State Police and the Department of Public Safety and Corrections.

In cases of denial of a valid request, the requester may file a lawsuit against the agency and the person making the decision to deny the records. If the requester prevails, the agency or individual making the decision can be fined up to $100 per day, plus court costs and attorney fees, for denial of each request.

How do I know this? I have been successful in three of four lawsuits over public records or illegal executive sessions of a public body.

As with the State Board of Dentistry, the Board of Medical Examiners is flexing its enforcement muscle against those who do not have the expertise or the financial resources to fight back. A half-million-dollar fine is overkill in every possible consideration. Doctors and dentists have been broken and their careers left in tatters because of similar oppressive, dictatorial actions and it’s long past the time they should be reined in.

And for the record, attorney George Papale is still under contract to the Board of Medical Examiners even after his—and his daughter’s—employment was TERMINATED by another regulatory board, the Louisiana Physical Therapy Board.

The two attorneys had their contracts terminated following widespread complaints about the board’s handling of sexual misconduct cases.

The board was ripped by lawmakers after it was learned it had failed to revoke licenses after physical therapists settled claims of sexual misconduct with patients.

Baton Rouge physical therapist Philippe Veeters was charged with sexual battery and accused of assaulting nine patients but instead of revoking his license, the board merely suspended his license for nine months, prompting State Sen. J.P. Morrell (D-New Orleans) to call the action a “slap on the wrist.”

Dr. Feldman should re-phrase his requests and if unsuccessful, seek a legal solution.

That’s not legal advice; it’s advice from one who has been down the same road on many occasions.

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