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Archive for the ‘Public Records’ Category

Billy Broussard of Breaux Bridge has been fighting a lonely battle for a decade. He has lost in court against a stacked deck and before a judge who appeared predisposed to rule against him at every turn and to verbally berate him in the process.

And now, LouisianaVoice has learned that someone who calls himself an attorney is doing all he can to add threat to injury. When you read the letter from a Lake Charles attorney—actually written nearly a year ago but which only recently came into our possession—you have to wonder where he got his law degree.

Briefly, Broussard’s story started after Hurricane Rita hit Calcasieu Parish back in 2005, just a few weeks behind Katrina.

Broussard was contracted by Calcasieu officials to clean debris from the storm. But, he said, officials started adding work assigned in the original contract. Debris which was in Indian Bayou and Little Indian Bayou before the storm were ordered cleared. The bayou was in close proximity to a high-ranking parish official, Broussard says.

The problem arose when FEMA refused to approve payment for removal of pre-existing debris and Calcasieu Parish refused to make up the difference of something a little north of $1 million.

It didn’t much matter to FEMA that Mike Higdon, the man responsible for making eligibility determinations/ordering and directing work on the Indian Bayou project, is a half-brother to John Reon, superintendent of Gravity Drainage District 8, for whom Broussard performed his cleanup work.

making eligibility determinations/ordering and directing work on the Indian Bayou project (Mike Higdon) where he acknowledges that he is a brother of the superintendent of GDD8 John Reon.

Broussard sued and lost but he persisted in seeking public records that would support his position so that he could turn the information over to the media, LouisianaVoice included.

And those efforts to obtain public records led to a threatening letter-from-attorney-russell-stutes-jr which instead of harassment on Broussard’s part, would appear to border on harassment by someone attempting to use his position as an attorney to intimidate Broussard.

“Over the past several weeks, I have received numerous complaints by Calcasieu Parish officials regarding your repetitive public records requests…with respect to the Indian Bayou/Little Indian Bayou project,” Stutes’s letter begins and quickly went downhill from there.

Following more verbiage from Stutes, he incredulously wrote, “…all Calcasieu Parish employees have been instructed not to respond to any additional requests or demands from you associated with the project.”

As to underscore his bullying tactic, Stutes also wrote later in the letter, “Accordingly, the next time any Calcasieu Parish employee is contacted by you or any of your representatives with respect to the project, we will proceed with further civil actions and criminal charges. A rule for contempt of court will be filed, and we will request injunctive relief from Judge (David) Ritchie. Given Judge Ritchie’s outrage at your frivolous claims last year, you and I both know the next time you are brought before him regarding the project, it will likely result in you serving time for deliberately disregarding his rulings.”

Say WHAT?! Who the hell does Stutes think he is, the judges from the Fourth Judicial District in Monroe who filed SUIT against the Ouachita Citizen newspaper in West Monroe because the publication requested public records? Or Louisiana Superintendent of Education John White, who SUED two educators when they sought public records? (Note to Stutes: White lost that little gambit decisively in 19th Judicial Court in Baton Rouge.)

If Mr. Stutes would bother to take the time to read Louisiana Revised Statute 44.1 (et seq.) R.S. 44.1 (et seq.) which states unequivocally that any citizen 18 years or older has an unfettered right to review (and purchase copies of) any public record in the possession of any public body from the smallest hamlet in the state right on up to the office of the governor.

There is nothing in that statutes that says one can be prohibited from obtaining public documents simply because he came out on the short end of the stick in a court of law.

Likewise, Louisiana Revised Statute 42:4.1 (et seq.) R.S. 42:4.1 (et seq.), specifically R.S. 42:4.4(c) clearly states that all public bodies “shall provide” and opportunity for comments from citizens.

“Consider this your final warning, Mr. Broussard,” Stutes wrote. The harassment of Calcasieu Parish employees must completely and immediately cease. Otherwise, we are prepared to follow through with all remedies allowed by law.”

What a crock.

Let me tell you something, Mr. Stutes. I understand you are contracted by Calcasieu Parish officials, be it the police jury or the gravity drainage district. It doesn’t matter which one, but should I (and I am not Mr. Broussard’s “representative”) decide I wish to obtain public records from either of these bodies, woe be unto anyone who attempts to harass me with a letter like the one you wrote to Mr. Broussard.

It is I who shall follow through with all remedies allowed by law, including fines of up to $500 per day and possible jail time for non-compliance.

Do yourself a favor and read the public records and public meeting laws of the Gret Stet of Looziana.

They’re quite enlightening.

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By Robert Burns

Guest Columnist

It has been over a decade since Hurricane Katrina made landfall on August 29, 2005. When the levees broke, much of the lower sections of New Orleans flooded. Many people were left without any form of housing because their previous homes had been inundated with water.

That’s when the Federal Government (FEMA) sprang into action. Recognizing the massive need for housing assistance, FEMA ordered an astounding 120,000 travel trailers, at a cost of $2.7 billion, from 60 different suppliers. For the next several years, these FEMA trailers would serve as temporary homes for the tens of thousands of residents who’d lost their homes as they rebuilt or, in some cases, opted to relocate and be bought out by FEMA.

Soon after, many residents complained of temporary memory loss, irritating sore throats, sneezing episodes, and similar ailments. The culprit was determined to be formaldehyde, which the National Institute for Health assessed prolonged exposure at rates exceeding eight parts-per billion (ppb) to be a known carcinogenic risk. Formaldehyde testing began to be conducted by the Center for Disease Control, and those results showed average formaldehyde levels of 40 ppb, or more than five times the level considered safe for extended exposure. Some tests revealed readings 40 times the acceptable level. Concerned about the health risks to the public, FEMA suspended sales of the trailers to the public in July of 2007, almost two years after Katrina made landfall. That moratorium expired on January 1, 2010.

FEMA then had a problem on its hands. Incurring storage costs of $130 million a month, the agency needed to unburden itself of its cumbersome inventory of unoccupied trailers. FEMA opted to hand them off to the General Services Administration which, in turn, auctioned them off in massive quantities per lot for a total price of $133 million, approximately seven cents on the dollar for what FEMA originally paid for the trailers. Buyers purchased the trailers for just under $1,000 per unit on average.

Henderson Auctions, located in Livingston, Louisiana, purchased approximately 23,000 of the FEMA trailers, or about one-sixth of all the trailers deployed. To facilitate the acquisition, the principals of Henderson Auctions, Jeff Henderson and Janet Henderson Cagley, the two children of Henderson Auctions’ founder Marvin Henderson, formed a company called the Lottie Group.

Lottie served to pool the resources of several investors to purchase the trailers for the purpose of liquidating them individually to consumers through successive auctions of hundreds at a time since the ban on sales to the public had been lifted. Accomplishing that turned out to be a tricky proposition, however, when the FDA announced that anyone caught reselling contaminated FEMA trailers could face criminal prosecution. The reselling process was also problematic because some states, Mississippi in particular, strictly forbade the resell of the FEMA trailers due to health concerns over the formaldehyde issue.

The first obstacle faced by Lottie and Henderson Auctions was where to store the 23,000 trailers. That problem was solved by the purchase of the old Evangeline Downs racetrack in Carencro in Lafayette Parish. An entity controlled by Jeff Henderson and Janet Henderson Cagley, Evangeline Properties, LLC, recently sold the old Evangeline Downs property for $11 million in a transaction in which their father, Marvin, notarized the Act of Sale for the sellers when, as a convicted felon, he is ineligible to hold a notary license.

The Louisiana Auctioneer Licensing Board (LALB) recently addressed the issue of Henderson’s apparent illegal notarizations but concluded that its hands are tied. The matter has been referred (by the Louisiana Secretary of State) to Livingston Parish District Attorney Scott Perrilloux for appropriate action.

As part of the sales agreements between GSA and buyers such as Lottie/Henderson, GSA insisted upon agreements being signed that the trailers would not be sold for housing purposes but rather only for “storage or recreational” use.

GSA placed stickers on the trailers in all caps declaring the trailers were “NOT TO BE USED FOR HOUSING.” Lottie/Henderson began conducting a series of auctions entailing several hundred trailers at each auction and, despite the fact that representations were made that the trailers were being sold “as is, where is” with all faults and that they should only be purchased for recreational uses such as hunting camps, it didn’t stop many environmentalist bloggers fromlambasting the auctions as well as criticizing the local media for failing to even point out the potential health risks associated with purchasing the trailers.

Selling the FEMA trailers to the public turned out to be a task that took more than three years for Lottie/Henderson to accomplish. Along the way, and in an effort to expand the geographic marketing to consumers in states beyond the Gulf Coast, Henderson reached out to some fellow auctioneers to sell many of the trailers. Once, Charles Easler of South Carolina, a long-time friend of Marvin Henderson, agreed to assist in the effort by accepting over 300 trailers to be auctioned from his facility in South Carolina. That episode, however, didn’t turn out as initially planned as Henderson filed suit against Easler on December 21, 2015 alleging that his one-time friend failed to make payments or account for approximately 60 of those trailers. Easler denied all of Henderson’s allegations.

Meanwhile, amidst all the banking transactions entailed with the trailer sales, Lottie/Henderson found itself in the crosshairs of its own bank, First Guaranty Bank (FGB) of Hammond.  Lottie/Henderson sued, claiming that FGB officials failed to adequately safeguard against their account usernames and passwords from being obtained to execute nearly $1 million in allegedly fraudulent wire transfers. The dates, amounts, and beneficiaries of the alleged fraudulent transfers are summarized in the following table:

 

Date Acct # / Name Amount Beneficiary
       
9/23/11 4767/Lottie $77,000 Golden Door
9/27/11 4767/Lottie $187,400 Time Imports, Inc.
9/28/11 4767/Lottie $5,000 Time Imports, Inc.
9/28/11 4767/Lottie $125,500 Golden Door V & L, Inc.
9/29/11 5806/JAH* $485,740.80 Emirates NBD
10/3/11 5806/JAH* $45,000 VTB 24
10/3/11 8510/JAH* $45,000 Citibank

* JAH is a limited liability corporation doing business as Henderson Auctions.

The lawsuit was not filed until September 22, 2014, well beyond the one-year prescription period to file suit since the final alleged loss was on October 3, 2011. FGB attorneys openly wondered the same, asserting prescription in their answer as one of 27 itemized defenses to the lawsuit. FGB attorneys also claimed that “Plaintiffs are the cause of any loss they have suffered due to their negligence, inattention, failure to investigate, lack of review, lack of management, and/or lack of supervision of the operations of JAH Enterprises, Lottie Group, LLC, including the actions of its members.”

So, where did all these FEMA trailers end up and how are they being used? Environmentalist journalist Heather Smith revealed in her documentary that a good number of these trailers have managed to find their way to North Dakota where the trailers are being routinely utilized as permanent housing for cashiers, fry cooks, and others who have become transplants in North Dakota. Several trailer tenants interviewed said they were lured to North Dakota by the prospect of $17-per-hour jobs as Wal-Mart cashiers (vs. $7-per-hour in their home states). One of the tenants acknowledged that the $1,200 rent on his FEMA trailer is high, but added that it’s the only housing he can afford where costs are so high because of the oil boom in North Dakota.

The VIN of one tenant’s travel trailer was traced in order to learn its origin. It was one of the 23,000 trailers purchased by Henderson Auctions.

The trailer of one tenant was tested and the occupant was told that his formaldehyde count is 30 ppb, or nearly four times the level considered safe for extended exposure. Tenants were encouraged to vent their units clean air from outdoors to dilute the concentrations of formaldehyde—hardly an option for the frigid North Dakota winter months. Shapiro questioned if the $17 per hour wage was worth the health risks to which these FEMA trailer tenants are unwittingly exposing themselves.

 

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This is a story with no readily apparent good guys.

It’s a story about charges of theft of heavy equipment.

It’s a story about thousands of dollars floating around unaccounted for by public officials.

It’s the story of the attorney general’s office abruptly halting a confrontational deposition.

It’s a story about a Baton Rouge judge having the decency and courage to impose (finally) a stiff financial penalty against a state agency over the agency’s failure to complete the deposition or to produce legally required public records.

It’s a story of how the superintendent of State Police was unable to account for the receipt of two checks totaling nearly $150,000 and how the state attorney general’s office and its former rogue investigator wound up with egg all over their already questionable reputations.

And, of course, it’s a story of how the taxpayer and not the public official responsible ultimately will bear the cost of those penalties.

It all began in May 2014 with the indictment of Joseph Palermo of Sulphur on five counts of possession of stolen things, destruction of serial numbers and forgery.

http://www.kplctv.com/story/25298149/five-count-indictment-unsealed-against-sulphur-businessman

Palermo previously got crossways with state police over operation of casinos in Calcasieu Parish and he settled that civil matter back in 1998 but prosecutors, apparently still nursing a grudge over the casino gambit, brought up the 1998 trouble in connection with his more recent problems. Things have a way of playing out that way for some people.

In February 2015, he pleaded guilty to misdemeanor charges of receiving “ill-gotten gains” in a plea bargain in which he agreed to paying civil penalties of $1.2 million over three years with expenses to the Calcasieu Parish District Attorney’s office coming off the top. After expenses, the $400,000 per year was to be divided equally between the Calcasieu DA, the attorney general and State Police ($133,333.34 each). An additional $14,792.55 was what remained after the district attorney’s expenses were paid.

Identical checks of $14,792.55 and $133,333.34 were then issued to Louisiana State Police and the attorney general’s office. State Police, however, initially had no record of receipt of the funds.

Moreover, neither of the checks to the attorney general’s office was ever negotiated and it took more than a little effort to get State Police Superintendent Mike Edmonson to acknowledge his office had received the money. State Police’s financial section has no record of the checks, nor is there any record of the checks having been deposited in state police accounts.

In February of this year, Palermo began efforts to obtain certain records from the attorney general’s office, specifically those pertaining to the criminal investigation of his case by Scott Bailey, then employed as an investigator for the attorney general’s office.

Bailey, in addition to being a central figure in the botched CNSI investigation of a couple of years back, holds the dubious distinction of being the investigator who photographed Jimmy Swaggart exiting his infamous rendezvous with the hooker in that seedy Metairie motel three decades ago. (Some claims to fame you just want to hang onto for whatever reasons).

Bailey resigned from the attorney general’s office the very day he was directed to provide all his time management records for all his investigations.

The records by Palermo from the attorney general were insufficient to meet the parameters of his request, so he tried again and this time he was met with a response that the records, after all, were exempt from public disclosure despite the investigation of Palermo having been completed for more than a year.

The legal back and forth jockeying continued with two separate legal actions by Palermo—one for public records and the other to force deposit of the checks into the court’s registry pending a determination of to whom the money actually belonged—being consolidated into a single lawsuit. Finally, it culminated in a deposition scheduled for October 27 in Lake Charles.

Alas, it was not to be.

State attorney Chester Cedars abruptly called an end to the deposition only a few minutes into the proceedings, acknowledging he was doing so at his own peril.

On Monday, 19th Judicial District Judge Don Johnson of Baton Rouge came down hard on the attorney general’s office and we would be less than honest if we didn’t admit we are delighted (so much for any pretense of objectivity).

It was such a beautiful order, we’re reproducing some of the wording here:

“Judgment is hereby entered herein in favor of Joseph R. Palermo, Jr. and against Jeff Landry, in his official capacity as the Attorney General of Louisiana, in the amount of twenty-five thousand and no/100 dollars ($25,000.00) payable within 30 days from November 14, 2016.”

Here is the judgment in its entirety.

One courtroom observer speculated that Cedars would likely take writs to the Louisiana Supreme Court on the matter of the amount of the fine.

That’s unlikely, however, because of Cedars’s own admission at the time he suspended Bailey’s deposition.

It is part of the transcript of the deposition and Cedars tells opposing counsel Christopher Whittington, “…I do so at the defendant’s peril. I fully understand that if I’m incorrect in the assertions and the law as I understand it, or in the facts as I understand it, then we are going to have to pay the appropriate sanctions.”

WHITTINGTON: “Okay. And we will move for those sanctions pursuant to Article 1469.”

http://www.laboards-commissions.com/MCBD.pdf

You have to wonder how that little on-the-record exchange and Judge Johnson’s ensuing fine are going to sit with Cedars’s boss, Attorney General Jeff Landry (Of course Landry has his own problems, having recently dodged service on a subpoena in the ongoing litigation with Gov. John Bel Edwards over the governor’s non-discriminatory executive order).

Now, if we can just find out what happened to those two checks after they arrived at State Police headquarters…

(Special thanks to Robert Burns for scurrying around and digging up valuable court documents for this story.)

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There are those who will label this post as sour grapes.

That’s okay. You can call it Tinker Bell, Rambo or anything you choose. I don’t care because it won’t change the fact that the Louisiana Supreme Court is dominated by gutless hypocrites.

There’s a guy in New Orleans who will agree with me even if no one else does.

His name is Ashton R. O’Dwyer, Jr. and he is an attorney. Or at least he was.

You see, like me, he sounded off to and about the wrong people—judges, to be precise—but unlike me, he was in a vulnerable position in that he was a partner at the prestigious New Orleans law firm Lemle & Kelleher. As such, anything he said about the judiciary could be—and was—met with instant retaliation.

O’Dwyer’s sin was that he had the idea to file a class action lawsuit against the U.S. Army Corps of Engineers over its lack of adequate preparedness for Hurricane Katrina. For good measure, in case it should be determined that the Corps was immune from litigation, he also named the State of Louisiana as a defendant for its pitiful oversight of the various politically inept and corrupt levee boards.

But other attorneys who were politically connected to the presiding judge wanted to be the plaintiff attorney. The judge eventually disqualified O’Dwyer and the rival attorney filed his suit. The only problem is the other attorney also represented the state so he could not, because of the obvious conflict of interests, file against the state.

It was little consolation to O’Dwyer that the Corps of Engineers was, as feared, determined to be immune from being sued which left the other attorney with no case. O’Dwyer was furious and went slightly ballistic.

He was eventually terminated by Lemle & Kelleher and things escalated quickly. Jailed on a questionable charge of making threats, he was held for mental evaluation. It was his second stint in jail. The first came because he refused to leave his St. Charles Avenue home during Katrina—even though a network news crew was allowed to remain in a house next door during the storm.

The courts were far from finished teaching him a lesson. Subjected to monitoring of his emails for years, suspended from the practice of law after being fired, he was later disbarred altogether. http://www.tulanelink.com/stories/o’dwyer_11a.htm

Today, O’Dwyer is not only fired, suspended and disbarred, but also bankrupt—all because he refused to hold his tongue. And today, he still won’t shut up.

http://www.nola.com/opinions/index.ssf/2010/12/disbarred_attorney_not_as_craz.html

After all, what else can they do to him?

Fast forward to November 7, 2016.

Among the writ applications denied by the Louisiana Supreme Court was Case No. 2016-C -1263 (TOM ASWELL v. THE DIVISION OF ADMINISTRATION, OF THE STATE OF LOUISIANA AND KRISTY NICHOLS, INDIVIDUALLY AND AS THE COMMISSIONER OF ADMINISTRATION). http://www.lasc.org/news_releases/2016/2016-065.asp

I filed my writ after the First Circuit Court of Appeal in an equally cowardly act, struck down the penalties against Nichols while acknowledging that the state was negligent in complying to our public records request in a timely manner.

As a refresher, here’s what happened. With the Division of Administration under Nichols already dragging its feet with several pending requests we had submitted, we decided to conduct a test to see if we were being targeted via slow compliance.

In October 2014, we submitted a detailed request for information pertaining to a complicated third party administrator contract between the Office of Group Benefits and a California bill processing firm. On the same day, we had a friendly legislator (who asked not to be named) submit an identical request through the House Legislative Services Office.

The House member received the requested information the very next day. Again, that was in October 2014. In January 2015, I still had not received the documents so I filed suit. Kristy Nichols then had a CD containing the information delivered to my attorney, J. Arthur Smith, III, the day after the suit was filed.

By our calculations, with state law providing penalties of $100 per day for failure to comply to the state’s public records law (remember: Bobby Jindal was touting the state for its “gold standard of transparency), the Division of Administration owed us about $40,000, including that request as well as others that were still outstanding.

District Court Judge Mike Caldwell, in his infinite wisdom, awarded us something on the order of $1200 and Kristy appealed. The First Circuit gutted even that award and we applied for writs to the Supreme Court.

Among those on the Louisiana Supreme Court who would have granted my writ were Jeannette Knoll of the Third District, Jeff Hughes of the Fifth District and John Weimer of the Sixth District. For that, I thank them.

The brain-dead justices who declined to do the right thing, who distorted the state’s public records law to their own satisfaction and who showed they possess no moral compass insofar as the public’s right to know is concerned were Chief Justice Bernette Johnson of the Seventh District, Greg Guidry of the First District, Scott Crichton of the Second District, and Marcus Clark of the Fourth District. For that, I thumb my nose at them.

Let’s recap: I’m not an attorney, I’m retired, and for the moment, the First Amendment, which guarantees my freedom of speech, is still firmly intact. Moreover, since Supreme Court justices are elected, that makes them politicians first, and judges second, which means their title of justices takes on about as much significance as a justice of the peace as far as I’m concerned. They are no more or any less human than anyone else who toils at an occupation. They are mortals endowed with no greater wisdom than my grandfather who had a sixth-grade education. (In fact, truth be known, he was probably light years ahead of most lawyers in terms of moral wisdom.)

In short, the Supreme Court jusrtices can’t do a damned thing to me for calling them imbecilic morons.

Now, lest you think this diatribe is about me, be assured it most definitely is not. It also is not about LouisianaVoice. Nor is it about $1200 in penalties—or even $40,000. The $1200 awarded by Judge Caldwell will neither make me nor break me.

This boneheaded decision, from district court all the way up to the Supreme Court’s decision to deny writs, is about something much larger than me, LouisianaVoice or $1200.

This is about the public’s right to request—and obtain—information about what its government is doing, how it is spending the taxpayers’ dollars, and how its government is meeting—or failing to meet—its responsibility to the public it is supposed to be serving. This rant also raises the obvious question: what purpose do laws serve if they are not enforced? Indeed, what use are judges (other than to look wise when photographed in their robes for their official portraits—at taxpayer expense, of course) when they selectively ignore the law?

With the manner in which our litigation was mangled by the judiciary, governmental agencies and those who run them—from the governor down to the mayors of Shongaloo and Paincourtville—may now take their cue from Case No. 2016-C -1263 (TOM ASWELL v. THE DIVISION OF ADMINISTRATION, OF THE STATE OF LOUISIANA AND KRISTY NICHOLS, INDIVIDUALLY AND AS THE COMMISSIONER OF ADMINISTRATION) and provide as much—or as little—as they choose in the way of public records without fear of financial penalties.

The only recourse we have at this point is to find another friendly legislator to write—and a friendly governor to support—new legislation tightening and re-defining the public records laws and the public’s right to know what its elected and appointed officials are doing in the name of representation of constituents.

We have the friendly governor, we believe, as evidenced by John Bel Edwards’s office prompt response to the public records requests we have submitted to him and to the Division of Administration.

So now, like Diogenes, we are seeking an honest man in the form of a legislator who will take on a difficult, if not impossible task.

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“Just because a cat has kittens in the oven doesn’t make them biscuits.”

It’s a quote attributed to Malcolm X, reprised by Kelsey Grammer in an episode of the number one sitcom Frasier, but actually has its origins in New England. It means, “Just because you were born here, it doesn’t make you one of us.”

It could just as easily be updated to apply to State Superintendent of Education John White’s lame explanation of a settlement of a lawsuit by the Louisiana Department of Education (LDOE) against citizens James Finney, a technical college math instructor and Mike Deshotels, a former educator and past executive director of the Louisiana Association of Educators.

White was quoted in the Baton Rouge Advocate as saying the ruling by 19th Judicial District Judge Janice Clark “merely resolved what had been a conflict between two laws” because federal law instructed the department not to release data that could be used to personally identify a child while state law mandated the disclosure of all public records.

http://www.theadvocate.com/baton_rouge/news/courts/article_76e860ca-8bd9-11e6-9963-cf5829bedcf3.html?sr_source=lift_amplify

Bull feathers.

Department legal counsel Joan Hunt said in a Wednesday email to members of the state Board of Elementary and Secondary Education (BESE) that a declaratory judgment was sought to resolve “tension” between free disclosure of public records and protection of student information according to federal law.

Balderdash.

Neither Deshotels nor Finney ever requested information that would identify a single student.

Period.

And John White knew that. Period.

Since becoming Superintendent of Education in January 2012, White has made a career of stalling on compliance with public records requests if not denying them outright.

LouisianaVoice was once forced to sue white over public records and won an award of $2800 ($100 per day for each day delayed per request), plus court costs. The only downside of that judgment was that White was not held personally liable, meaning the $2800 and court costs were picked up by Louisiana taxpayers.

But in suing two Louisiana activist citizens (who admittedly had been something of a nuisance to White with their monitoring of the department), White reached a new low in attempting to avoid being held accountable for the manner in which he runs the department.

His lawsuit, in terms of disgraceful acts, ranks right down there with those judges in Monroe who sued the Ouachita Citizen, a newspaper in West Monroe. The newspaper’s sin? It made public records requests of the court.

Do we detect a disturbing trend here? You bet we do. The Louisiana Department of Education, district courts, and other public bodies have virtually unlimited financial resources at their disposal and most, like the Department of Education, have in-house legal counsel like Joan Hunt. They can initiate lengthy—and costly—legal action against any citizen and people like John White and district judges don’t have to pay a penny of the costs of litigation, courtesy of Louisiana taxpayers.

Private citizens do not enjoy that same advantage. It’s not a level playing field. And even if the public body does not sue, it can drag its heels on compliance, forcing the citizen making the request to either give up or enter into expensive legal action with no guarantee the court will uphold the public’s right to know.

At last Monday’s hearing, Judge Clark let it be known that her patience was wearing thin with public officials who attempt to hide behind legal maneuvers in an attempt to avoid compliance with the law.

The LDOE attorney opened by saying the department had “informal guidance” from the federal government that “we do not have to comply with FOIA (Freedom of Information Act) requests.”

Perhaps sensing the mood of the court, the state withdrew its demands for attorney fees from Deshotels and Finney, adding that “only two people are interested in the data.”

Judge Clark said it was an “improper purpose” to deny information to the public as a retaliatory action.

“Counsel should meet and work this out,” she said. “The public (meaning the court) takes a dim view of public officials using public resources to delay compliance with public records laws.”

Deshotels attorneys J. Arthur Smith and Chris Shows met outside chambers for more than two hours with LDOE attorneys but were unable to arrive at an agreement on the release of the requested documents.

When informed of the continued impasse, Judge Clark, visibly angry, said, “I am issuing a subpoena for John White to be in court at 9:30 tomorrow (Wednesday) morning for cross examination.”

When White got word of that, it was something akin to Moses coming down from the mountain with the 10 Commandments. Suddenly minds came together and miraculously, there was accord and LDOE agreed to three stipulations which settled the suit filed in April by White and the department against Deshotels and Finney. http://www.theadvocate.com/baton_rouge/news/education/article_536e2fac-b5e2-575c-87f6-1a991bf0f455.html?sr_source=lift_amplify

The first stipulation mandates that the suppression of data in the economically disadvantaged and English language learner or English proficiency sub-groups of the Education Department’s multi-stat reports is not in compliance with the Louisiana Public Records Act.

The department agreed not to suppress student enrollment data in responding to requests made under the act in the second stipulation.

The final stipulation says requested data will be made available to the public dating back to 2006.

Deshotels said the declaratory judgment filed against him and Finney was never about clarifying the legal issues relative to certain public records and student privacy as claimed by White.

Instead, he said White’s action was “purely an attempt to discourage citizens from seeking to independently research the claims and conclusions made by White and his staff.” “If citizens are forced to face legal challenges and high legal fees for seeking public records, the Department can continue to manipulate and spin what should be factual information about the operation of our schools.”

Sadly, Judge Clark’s ruling will do little to expedite timely compliance with future public records requests to other state agencies.

Even as this is being written, former commissioner of administration Kristy Nichols has already cost the state more than the original judgment against her in another lawsuit by LouisianaVoice.

LouisianaVoice received a pittance in a lawsuit in which the Division of Administration (DOA) under Nichols had dragged its heels for more than three months on several separate public records requests.

LouisianaVoice calculated DOA owed some $40,000 in penalties for non-compliance but was awarded less than $2,000, plus costs and legal fees, by the court. Even then Nichols appealed the decision. And although the court held Nichols personally liable, meaning she alone was responsible for the penalty, the state is picking up the tab for that appeal, which partially upheld the district court ruling.

Nichols, still not satisfied, and still not paying a cent of the legal costs (though LouisianaVoice is paying its legal costs, applied for writs to the Louisiana Supreme Court.

As of this date, the state has spent far, far more than the penalty imposed on it in trying to avoid paying the penalty and LouisianaVoice has spent more than it will ever be awarded, provided the Supreme Court even upholds the lower court.

And while the obvious question is: Is throwing good money after bad a wise way to spend state funds? An original penalty of less than $2000 has now cost the state several times that in defense costs and the tab is still running.

And John White’s obfuscating dribble notwithstanding, that’s what Louisiana citizens are faced with in trying to hold its state government accountable.

 

 

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