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Louisiana Department of Education does poorly combating public records requests; Rep. Richard bill seeks trasparency

Posted in Corruption, Education, Ethics, Governor's Office, Lawsuits, Legislature, Legislators, Media, Politicians, Public Records, Transparency on April 6, 2016| 6 Comments »

Second of four-part series:

When the conversation turns to public records, there’s seldom a reporter, governmental watchdog agency, or a private citizen active in the public arena who doesn’t have a personal story to tell about obstacles encountered in efforts to obtain documents.

Nowhere in state government is that more evident than in the labyrinth known as the Louisiana Department of Education (LDOE) and in the governor’s office over the past eight years.

And if State Rep. Jerome “Dee” Richard (I-Thibodaux) gets his way, his HB 166 would make records of the governor’s office more accessible to the public. HB 166

The House Governmental Affairs Committee will hold hearings on his bill Thursday at 9 a.m.

Bobby Jindal is gone and there is reason to hope for a new era of openness in the governor’s office. But across Third Street from the towering State Capitol, John White remains at DOE and if what’s past is truly prologue, to borrow a phrase from Shakespeare’s The Tempest, any fantasizing about change is just that: fantasizing.

All you have to do is ask anyone who has suffered through the process of obtaining anything of substance in the way of public records from LDOE.

Ask James Finney, Ph.D., about his efforts to get answers to his records requests.

Finney began his quest for records from White back in April 2013 and in the ensuing years has filed dozens of other public records requests with DOE, all to no avail. Finally, after giving up on getting DOE and White to comply with state law, he sued on May 22, 2015. The suit will be heard by 19th Judicial District Court Judge William Morvant, which is not necessarily good news for Finney as we shall see later. It’s also unusual for a public records lawsuit to take nearly a year for trial in that they are supposed to be put on a fast track for hearing.

FINNEY LAWSUIT

White has been taken to court at least three times in the past. He has lost no fewer than three times. In two of those three cases, monetary penalties handed down by the courts still have yet to be paid.

Barring any delays the trial in Finney’s case is set for April 29. If he prevails and if he is awarded monetary damages (and there is no reason he shouldn’t, Judge Morvant notwithstanding), he stands to reap quite a financial windfall, given the number of unmet requests and the time periods involved—all at taxpayer expense, of course.

The lone exception is LouisianaVoice, which sued and won back in 2013 and was awarded damages of $2,800 plus court costs and attorney fees. In our case, the records were produced and the monetary damages paid. But not since then.

Ask Barbara Ferguson, Ph.D. and Charles J. Hatfield.

In April of 2013, exasperated at their failure to obtained requested documents from DOE, they sued. http://www.louisianaweekly.com/research-on-reform-files-lawsuit-against-la-doe/

RESEARCH ON REFORMS LAWSUIT

Ferguson is the first female superintendent of New Orleans public schools and an attorney. Hatfield is managing partner of a company specializing in diverse information retrieval and data analysis for public opinion researches. Together, they head up a non-profit organization called Research on Reforms.

Research on Reforms was founded after Hurricane Katrina and the subsequent takeover of 107 New Orleans public schools. Ferguson agreed that the Orleans Parish School Board “was a mess.” She said she was initially “delighted” at the conversion of the schools into charter schools but soon came to the realization that things were not as they appeared, particularly with the Recovery School District (RSD).

Data requested by Research on Reforms for the ’06-’07 and the ’07-’08 school years was provided but beginning in the ’08-’09 school year, the organization began to experience roadblocks thrown up to block its requests. Among the records it did receive was one with the absurd claim that one RSD school boasted a 100 percent attendance rate.

“You don’t have 100 percent attendance at a high school, ever,” Hatfield said.

“Research on Reforms, Inc. is not interested in obtaining privileged student-level data,” the organization said on its Web site after the lawsuit was filed.

But because LDOE was providing raw data to other national reporting organizations, Ferguson and Hatfield felt they had a right to the same information.

“LDOE is becoming increasingly less transparent through its recent actions to modify its website, removing historical databases and removing actual current school enrollment counts,” the Web site said.

“Because Louisiana’s state takeover of public schools was an experiment in how to improve failing schools, data had to be collected, aggregated and analyzed to determine whether the experiment was working or not,” it said. “While the Louisiana Department of Education collected, and continues to collect, the raw student level data needed for analysis, the LDOE has developed its own rules for releasing this data.”

LDOE dug in its heels and the lawsuit proceeded to trial in Baton Rouge’s 19^th Judicial District Court before District Judge…..William Morvant.

Incredulously, Morvant sided with LDOE and White that the citizens of Louisiana had no right to information about how the state’s ballyhooed school reform movement under Bobby Jindal and White was progressing or if the reforms were even remotely successful.

In effect, it was none of our business.

Fortunately, in the interest of transparency and open government, the First Circuit Court of Appeal disagreed with Morvant and on Sept. 19, 2014, it upheld Research on Reform’s appeal, reversed the lower court judge and remanded the case back to Morvant’s court for the awarding of damages. The $675 cost of Research on Reform’s appeal was assessed against LDOE.

FIRST CIRCUIT RULING ON FERGUSON

The decision by the three-judge panel was unanimous.

“We agree with the plaintiffs (Research on Reforms) that the Louisiana Public Records Law does not conflict with FERPA,” the First Circuit ruling said. FERPA is the Family Education Rights and Privacy Act, a federal law that protects the privacy of student education records.

“FERPA allows an educational agency to create a record to be used for education research only if the personally-identifiable information of the students is de-identified, or that the records are coded,” the ruling continued. “According to FERPA, an educational agency can release a student’s record if the agency removes personally identifiable information and replaces it with a code….Once the document is legally created, the document becomes a public record under the Louisiana Public Records Law.

“For the reasons set forth above, this court maintains the appeal, the judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings.”

With the issue of whether or not the records were public settled, the only remaining proceeding was the awarding of damages.

“We went back into district court and Judge Morvant was not happy he’d been reversed,” said Ferguson.

In its memorandum in support of motion for attorney fees, court costs and penalties, Research on Reforms requested that Morvant award for the trial and appeal litigation $29,779 in attorney fees and $3,121in court costs, a total of $32,850.

FERGUSON REQUESTED JUDGMENT

Research on Reforms requested the documents on Jan. 27, 2012, and LDOE did not release the documents until three years later, on Jan. 22, 2015.

L.R.S. 44:1 et seq. provides penalties for non-compliance:

If the court finds that the custodian arbitrarily or capriciously withheld the requested record, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian. It may also award the requester civil penalties not to exceed $100 per day, exclusive of Saturdays, Sundays and legal public holidays, for each such day of such failure to give notification.

Taking into account weekends and the 10 official legal holidays per year in Louisiana, there were 684 working days over the three-year period, according to the motion. At $100 per day, Research on Reforms was within its rights in asking for penalties totaling an additional $68,400—a total of $101,250 (actually, LouisianaVoice calculated 745 days, which would have increased the penalty to $74,500 in addition to court costs and attorney fees).

The Louisiana Public Records Law further says:

The custodian (in this case, John White) shall be personally liable for the payment of any such damages and shall be held liable in solido with the public body for the payment of the requester’s attorney’s fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of legal counsel representing the public body in which the office of such custodian is located. In the event the custodian retains private legal counsel for his defense in connection with the request for records, the court may award attorney’s fees to the custodian (Emphasis added).

So, when all parties reconvened in Morvant’s courtroom on Nov. 9, 2015, what did Morvant, in his magnanimous administration of justice under Louisiana’s Public Records Law, award Research on Reforms? How did he protect the rights of Louisiana’s citizens to access public records without future unnecessary and unfair challenges while sending a message to politicians and bureaucrats that defiance of the law was not to be taken lightly?

Why, he slashed attorney fees and courts exactly by more than half, of course, to a paltry $18,121—$3,121 in court costs and $15,000 in attorney fees. (You have to wonder what Morvant’s attorney fees would have been had he been in private practice and handled this case.)

But, but…what about the $100 per day penalty, the $68,400?

Surely you jest. “It is ordered, adjudged and decreed that …Louisiana Department of Education shall pay to plaintiffs $3,121 in court costs and $15,000 in attorney fees, for a total of $18,121. Period. MORVANT GRANTED HALF OF REQUESTED FEES

No mention of penalties for LDOE’s openly defying the law. Nada. Zilch. Zero.

It would be egregious enough if that was the end of the story, but it isn’t.

Now LDOE refuses to pay the judgment.

Department legal counsel Chris Frugé informed Ferguson and Hatfield that they must now find a legislator who will introduce an amendment in the current legislative session for payment not by LDOE, but by the Legislature.

That procedure is followed in payment of judgments against the state and the Louisiana Department of Transportation and Development (DOTD) involving automobile accidents. That’s because of some misapplication of federal funds by DOTD several years ago, but that has never been the case with any other agency—and it certainly was not the case in LouisianaVoice’s $2,800 award in 2013.

Unless there is some provision that we don’t know about, that is not the law; it’s just another hoop LDOE is making citizens jump through in order to hold John White’s feet to the fire of Louisiana law.

Tomorrow: In a case in which John White was held personally liable for $49,000 in fines, attorney fees and court costs, he has chosen to ignore the court’s decision and has made no effort to pay the judgment. But that may be about to change when the plaintiff attorney unveils his fallback plan in court.

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Louisiana’s Public records laws being routinely ignored by officials; lawsuits, fines increase – all at taxpayer expense

Posted in Corruption, DOA, Education, Ethics, Governor's Office, Lawsuits, Legislature, Legislators, Media, Politicians, Public Records, Transparency on April 5, 2016| 6 Comments »

First of four-part series:

Officially, it’s Louisiana Revised Statute (L.R.S.) 44:1 et seq., or informally, the Louisiana Public Records Act.

It’s a sister statute to L.R.S. 42:4.1 et seq., otherwise known as the Louisiana Open Meetings Law.

Both are state laws enacted to give us the right to examine public documents and to attend meetings of public bodies in order to know what our elected representatives and political appointees are doing that affect our lives.

But to some in positions of authority, from city marshals to the previous governor’s office, they are merely suggestions.

And that’s what’s keeping Louisiana courts a little busier these days.

Today begins a four-part installment on ways in which certain public servants circumvent or even ignore the state’s public records law.

Under L.R.S. 44:1 et seq., a public body is defined to include a “political subdivision, or any committee, subcommittee, advisory board, or task force thereof.”

Public records include “all books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state.”

Custodian is defined as “the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.

“It shall be the duty of the custodian of the public records to provide copies to persons so requesting.

“In any case in which a record is requested and a question is raised by the custodian as to whether it is a public record, such custodian shall within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the request in writing for such record notify in writing the person making such request of his determination and the reasons therefor. Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspection, copying, or reproduction.” (Emphasis added.)

Under L.R.S. 44:31, the right to examine records is clearly spelled out:

Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
Any person may inspect, copy, reproduce, or obtain a reproduction of any public record.
The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

LOUISIANA PUBLIC RECORDS ACT

There is no ambiguity in the law. It’s all right there in black and white. Yet, there are those, notable of them Superintendent of Education John White, former Commissioner of Administration Kristy Nichols, the LSU Board of Supervisors, a city marshal, and some judges who steadfastly abide by their own set of rules that were—and are—in stark contrast to what the law enunciates in concise language that any layman can easily comprehend.

Two key words are now routinely ignored: Public, as in public records, and Servant, as in public servant.

Almost exactly three years ago, in April 2013, the Baton Rouge Advocate and the LSU Daily Reveille filed suit against the LSU Board of Supervisors to obtain a complete list of candidates for LSU President, a position awarded to F. King Alexander. After winning at the district court level, the First Circuit Court of Appeal split the baby by partially reversing 19^th JDC Judge Janice Clark’s ruling that the names of all 35 candidates must be turned over to the public. The First Circuit ruled that only the four finalists for the post and not the entire 35 names must be made public. http://theadvocate.com/news/11213914-123/lsu-wins-partial-reversal-in

The First Circuit also overturned Judge Clark’s sanctions against LSU which would have had the university having to pony up some $50,000 in fines.

LouisianaVoice has participated in the running battle over public records, winning one, losing one and winning a partial victory in a third that is currently on appeal.

The first case involved a request for records from the Louisiana Department of Education. When those records were not forthcoming, we sued and won a judgment of $2,800 plus court costs and attorney’s fees. That judgment was paid by DOE shortly after the decision by Judge Clark.

We later sued the Division of Administration but our suit was tossed by District Judge Mike Caldwell who helped DOE attorneys formulate their objections from the bench. But soon we were back before Caldwell in a second public records suit that rendered a strange decision, a token slap on the wrist to Nichols who then appealed.

In that case, we had several public records request outstanding, including one in which we made our request in October 2015. On the same day we made our request, we had a state representative file an identical request through House Legislative Services. The legislator had the records in two days. In January of 2016, three months later, we still did not have the records, including the one given the legislator within two days, so we sued. Wonder of wonders, no sooner was the lawsuit served than presto! DOA hand delivered a disc containing the requested records.

Prior to trial, DOE offered to settle our case for attorney fees and court costs. We declined.

So we again entered the courtroom, again presided over by Judge Caldwell, confident that we had a solid case. According to our calculations, DOA owed fines of $100 per day for each day in which each of the requests went unanswered—a total of about $45,000. Caldwell, in his infinite wisdom, awarded us eight days on one request, or $800, plus court costs and attorney fees. He also ruled that Nichols would be personally liable, meaning a check would not be forthcoming from DOE but from her personal checking account.

Then Nichols did a curious thing: she appealed. She appealed an $800 judgment to the First Circuit. And even though Caldwell held her personally liable, the taxpayers are picking up the legal costs of her appeal and those costs aren’t cheap. But since she appealed, we did likewise, asking the First Circuit to overrule Caldwell and assess the full $45,000. Arguments have not been scheduled on the appeals but it is our contention if the lower court decision is upheld or better yet, if the appellate court decides to impose the full amount, or somewhere in between, Ms. Nichols should be required to pay her own legal costs. It was her decision, after all, to take a personal penalty up the ladder.

Tomorrow: Superintendent of Education John White personifies the contempt with which officials treat requests for public records—and adverse court judgments by concocting non-existent rules along the way that delay justice by requiring plaintiffs to jump through imaginary hoops to collect what’s owed them.

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Dentistry Board members fail to take required state ethics training; board policy attracts unwanted attention of ADA

Posted in Boards, Corruption, Ethics, Finances, Public Records on March 25, 2016| 7 Comments »

Even as the Office of Inspector General conducts its ongoing investigation of the Louisiana State Board of Dentistry, the board’s unorthodox practices have come to the attention of the American Dental Association (ADA) and the American Dental Education Association (ADEA).

At the same time, LouisianaVoice has learned that all but two members of the Board of Dentistry, including its executive director, may also have a problem with state ethics.

LouisianaVoice learned last Tuesday (March 21) that the Office of Inspector General was conducting an investigation into substantial fines levied against dentists for minor offenses. https://louisianavoice.com/2016/03/21/louisianavoice-learns-of-simultaneous-federal-and-state-investigations-of-lsta-la-state-board-of-dentistry/

On Friday, we obtained a copy of a Feb. 26, 2016, LETTER letter from the two national associations to State Dentistry Board President Dr. Russell Mayer of Hammond. The letter expressed a “high level of concern” of the ADA, its Licensure Task Force, the Council on Dental Education and Licensure, and the American Dental Education Association (ADEA).

The upshot of the letter appears to be a subtle message for the Louisiana board to cease in its efforts to bar competition from out-of-state dentists.

That concern is “with regard to the status of licensure for dentists in the U.S., particularly for dentists attempting to relocate to other states. The letter said that the Louisiana board engages “in conduct that restricts, rather enhances, that portability.”

The three-page letter was signed by Carol Gomez Summerhays, ADA President; Gary L. Roberts, President-elect; Gary E. Jeffers, Chair, ADA Licensure Task Force; Daniel J. Gesek, Jr., Chair, Council on Dental Education and Licensure; Huw F. Thomas, Dean of Tufts University’s School of Dental Medicine and Chair of the ADEA Board of Directors; Cecile A. Feldman, Dean of Dental Medicine, Rutgers University, Chair-elect of the ADEA Board of Directors, and Lily T. Garcia, University of Iowa College of Dentistry Associate Dean for Education and Immediate Past Chair of the ADEA Board of Directors.

The ADEA Allied Dental Program Directors’ Conference is scheduled to be held in New Orleans June 4-7, which makes the timing of the letter especially significant.

In addition to Dr. Mayer, copies of the letter were sent to Arthur Hickham, Jr., Executive Director of the State Board of Dentistry; Dr. Henry Gremillion, Dean, LSU School of Dentistry; Dr. L. King Scott, President of the Louisiana Dental Association; Ward Blackwell, Executive Director, Louisiana Dental Association; Dr. Raymond A. Cohlmia, 12^th District ADA Trustee; Dr. Kathleen O’Loughlin, ADA Executive Director and Chief Operating Officer, and Dr. Richard Valachovic, ADEA President and CEO.

The letter pointed out that there are five clinical test administration agencies for dentistry:

The Commission on Dental Competency Assessments;
Central Regional Dental Testing Service, Inc.;
Council of Interstate Testing Agencies, Inc.;
The Southern Regional Testing Agency, Inc.;
The Western Regional Examining Board.

“The ADA…has come to the conclusion that these examinations adhere to a common set of core design and content requirements that renders them conceptually comparable,” the letter said. “It has been a longstanding policy of the ADA that it represents unnecessary and meaningless duplication to require a candidate seeking licensure in different states to demonstrate his or her theoretical knowledge and clinical skill on separate examinations for each jurisdiction, especially when it is clear that the core requirements, administration, and outcomes are virtually indistinguishable between each examination,” it said.

“It is our understanding that your state affirmatively elects not to accept the examination results from all of these test administration agencies. The decision of your board… to accept the test results of only a select number of clinical test administration agencies appears highly arbitrary. Moreover, those decisions have an arguably anticompetitive effect in restricting the mobility of dentists wishing to move from one state to another.”

“…We respectfully request that your board pursue the necessary steps to accept successful completion of all of the clinical test administration agency examinations for dental licensure in your state,” the letter said. “Recognizing that the dental board’s primary mission is protecting the public in your state, we believe that the board has the authority and autonomy to pursue this change. It will increase portability of dental professionals and access to quality dental care for patients.”

The letter is in addition to the controversy swirling around the board’s policy of forcing dentists to pay the costs of investigating them in addition to absurd monetary penalties that can run into six figures.

The most outrageous example is the board’s forcing a surgeon into bankruptcy because the oral surgeon, who “never filled a tooth, made a denture, made a crown, cleaned teeth, restored a tooth, or anything that anyone would consider a dental practice, did not have an anesthesia permit from the board.

The doctor, Randal Wilk, whose patients were mostly cancer victims, was told by the board that he could sign a consent decree and pay the board $5,000 and the matter would be resolved. When Wilk refused to pay the $5,000, he was told the board could levy fines of more than $100,000—a tactic that can be considered nothing other than extortion.

But a regulation that had been in place since 2012 could be the eventual undoing of board members.

Debora Grier, Executive Secretary of the Louisiana Board of Ethics, said ethics training became a requirement for employees, contractors and board and commission members. Section VII of the Louisiana Code of Governmental Ethics says, “Each public servant shall receive a minimum of one hour of education and training on the Code of Ethics during each year of his public employment or term of office.”

A public employee “means anyone, whether compensated or not, who is…appointed by elected official to a position to serve the government or government agency” or who is “engaged in the performance of a governmental function.”

The one-hour training consists of an online course accessed through the Ethics Board’s Web page and the Web page also keeps records of those who have taken the course in a timely manner and there is where several board members appear to have a real problem.

Beginning with former board investigator Camp Morrison who was paid hundreds of thousands of dollars for drumming up charges against dentists, never took a single ethics course.

Others either on the board or employed by the board for whom there is no record of their ever having taken the ethics course as required include Dr. Isaac House of Haughton, Dr. Leonard Breda, III, of Lake Charles, Board Vice President Dr. Claudia Cavallino of Metairie, Dr. Mohammad Zadeh of Chalmette, Dr. James Hargrove of Baton Rouge, and Dr. Robert Foret of Thibodaux.

Moreover, there were several others who have taken the ethics training only one of the required years. Those include Dr. Wilton Guillory, Jr., of Alexandria (2014), Dr. Ronald Marks of Alexandria (2014), Dr. Jerome Smith of Lafayette (2013), Dr. Richard Willis of Monroe (2014), and the board’s Executive Director, Arthur Hickham (2014).

If that were not enough, Board President Dr. Russell Mayer of Hammond took the course in 2013 and 2014, but did not in 2015

So now we have a rogue board that:

Contracted with a private investigator whose sole responsibility was to hang some unsuspecting dentist out to dry for some obscure infraction;
Served as accuser, prosecutor, and judge in a special kangaroo court with the outcome of cases already predetermined;
Extorted backbreaking fines from dentists who balked at the lower fines by threatening to “find” other offenses;
Forced dentists to pay for the board’s and Camp’s investigations against them;
Maintained office suites in an expensive office building on Canal Street in the heart of the New Orleans Central Business District—and allowed non-state employee Morrison to enjoy a rent-free office in those suites.

And, while protecting the good citizens of Louisiana from those law breaking dentists who dared use lettering in their advertisements larger than the board permitted, somehow managed to look the other way as eight of its board members to neglect taking the required annual one-hour ethics course and six others, including its executive director to get by with taking the course only once.

Just another example of Louisiana politics at its finest, folks.

As our late friend C.B. Forgotston was so fond of saying, you can’t make this stuff up.

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Like Dental Board, LSBME survives on licensing fees, incentive for fining doctors for perceived violations

Posted in Boards, Corruption, Ethics, Finances, Lawsuits, Public Records, Revenue on March 18, 2016| 8 Comments »

First it was the State Dental Board exposed by LouisianaVoice as serving in the multiple capacity of prosecutor, judge and jury in investigating complaints against dentists, filing charges and then judging on their guilt or innocence. https://louisianavoice.com/2014/03/07/state-board-employs-intimidation-harassment-to-generate-funds-to-pay-for-lucrative-contracts-worth-millions-of-dollars/

Then there was the Auctioneer Licensing Board and the manner in which it failed to defend an 84-year-old widow against a case of shill bidding (efforts to drive prices up by a plant) or to protect her from unscrupulous actions by an auctioneer.

Now we have another board, the Louisiana State Board of Medical Examiners (LSBME) which, through its executive director, is being accused of tactics similar to those of the dental board. The result has been a spate of lawsuits, ethics complaints, and court hearings, all revolving around charges brought against a Baton Rouge doctor and encouraged, he says, by his competitor who sits on the board that brought the charges against him.

The one common thread running through each of the regulatory boards is that they receive no state funding. And with the dental and medical examiners boards, at least, there are expenses: staff, including attorneys, investigators and executive directors, and rent of nice, upscale offices in New Orleans central business district.

The lack of state funding coupled with the aforementioned high costs means the boards must necessarily generate funding—lots of it—through licensing fees and disciplinary actions against dentists and physicians. No dentist or physician in the state wants make waves because the boards literally hold the fate of their livelihoods, indeed their licenses to practice, in their hands.

In the legal profession, rainmakers are those within a firm who generate business by enlisting well-heeled clients who can afford expensive legal representation. Legal fees, after all, are the lifeblood of a law firm and the bigger the firm, the greater the pressure to bring clients through the door.

Taking the comparisons between the dental and the medical examiners board even further, the board acts in the capacity of investigator, accuser, and judge in disciplinary cases and, again like its counterpart, depends to a certain extent on penalties imposed on doctors for its operating revenue. Consequently, there is an undeniable incentive to generate revenue to ensure the boards’ survival.

So when it comes down to adding needed revenue to the coffers, it matters little whether the dentist or physician is guilty; if the need for revenue is present, as it usually is, then the boards, to paraphrase British politician and businessman Sir Eric Campbell-Geddes, “will squeeze the lemon until the pips squeak.” https://richardlangworth.com/pips

LouisianaVoice has previously documented strong-arm tactics by the Louisiana State Board of Dentistry whereby a dentist may first be assessed a modest fine for some supposed transgression. Should the dentist resist, he may quickly learn that that modest fine of a few thousand dollars somehow has run into six figures because he is also assessed the costs of the investigation of his practice—and because the board can. https://louisianavoice.com/2015/04/16/13976/

Sitting members of the dental board are allowed to initiate charges against a competing dentist in the same town—and often do just that.

And while physicians may not actually initiate charges against one of their peers, LouisianaVoice has learned that a board member who was a direct competitor with a doctor under investigation may have participated in the investigation, board discussions and votes affecting his competitor.

Baton Rouge pain management physician Dr. Michael Burdine, an LSBME member, has emerged as a key figure in the board’s investigation of Dr. Arnold Feldman, also of Baton Rouge because of his apparent reluctance to recuse himself from discussing Dr. Feldman’s case pending before the board.

The board’s legal counsel did produce somewhat belatedly a document that purported to recuse Dr. Burdine from participating in proceedings relative to Dr. Feldman’s case but board minutes indicate “unanimous” votes on matters pertaining to Dr. Feldman even as Dr. Burdine was supposedly recused. Moreover, Dr. Burdine repeatedly participated in executive session discussions when the subject of the closed session was Dr. Feldman’s case. Board member Dr. Mark Dawson, however, insists that Dr. Burdine did, in fact, recuse himself. “The pain management doctor’s attorneys are playing you for a fool,” he told LouisianaVoice.

The Dental Board until recently brought charges at the recommendation of a private investigator retained by the board whose offices were housed in the dental board’s suite on Canal Street in New Orleans. LSBME, on the other hand, employed its investigator as a full time employee. Following Dr. Burdine’s selection as vice president of the board, investigator Cecilia Mouton, a physician also, was appointed executive director of the board and immediately requested—and received—a 10 percent pay increase to $211,600.

Mouton, while still employed in 2010 as an investigator who looked into complaints about doctors, married attorney Jack Stolier who at the time represented physicians who were subjects of investigations and who had disciplinary action pending before the board and Mouton. Stolier ceased representing physicians before the board following his marriage to Mouton, Dawson said.

Taking the comparisons between the dental and the medical examiners board even further, LSBME acts in the capacity of investigator, accuser, and judge in disciplinary cases and, again like its counterpart, depends entirely on penalties imposed on doctors for its operating revenue.

Dr. Burdine’s Spine Diagnostics of Baton Rouge, one of the largest pain management clinics in the state, had annual receipts of slightly less than $9 million compared to Dr. Feldman’s $6 million in 2012. The two clinics are only about five miles apart. Dr. Feldman maintains that closure of his facility would necessarily mean that Dr. Burdine would inherit much of his caseload, thus enhancing the size of his clinic and providing an economic windfall for him.

The federal Healthcare Quality Improvement Act of 1986 provides that physicians are entitled to a professional review action “before a panel of individuals who are appointed by the entity and (who) are not indirect economic competition with the physician involved.”

Not only has the board, with the active participation of Dr. Burdine claimed by Dr. Feldman, plowed ahead with its prosecution of Dr. Feldman, Mouton, first as board investigator and later as executive director, denied Dr. Feldman access to his investigative file in order that he might formulate a defense, said Dr. Feldman in a 42-page complaint filed with the State Board of Ethics.

The specifics of the board’s complaint against Dr. Feldman have never been revealed but appear to stem from the death of a patient while in Dr. Feldman’s clinic even though the death was determined to be from natural causes and not connected to pain treatments being administered to the patient by Dr. Feldman.

The Ethics Board found no ethics violation in a decision that has become all too familiar since the ethics laws were amended in 2008, effectively gutting the ethics board. But that hasn’t stopped Feldman from seeking justice from what he feels is malicious prosecution, abuse of due process and violation of Louisiana commerce statutes.

He filed suit against Dr. Burdine in Civil District Court in New Orleans last August and the children of one of his patients has filed a separate suit in CDC naming LSBME, Mouton and board investigator Leslie Rye as defendants.

That lawsuit, filed by Alexia Senee James and Albert Lewis James of Baton Rouge, claims that Mouton and Rye intervened in Dr. Feldman’s treatment of their mother, Tonja Guitreau James.

After Tonja James was convinced by Mouton and Rye to leave the care of Dr. Feldman, she subsequently died from a prescription drug overdose, the petition says, adding that Mouton and Rye “violated the doctor-patient privilege, confidentiality and sacrosanct relationship between Tonja James and her physician.”

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State Police Commission members probing LSTA appear to have committed similar campaign contribution violations

Posted in Boards, Campaign Contributions, Commissions, Elections, Ethics, Governor's Office, Politicians, Public Records, State Police on March 10, 2016| 12 Comments »

Today’s scheduled meeting of the State Police Commission to decide whether or not to conduct an official investigation into the Louisiana State Troopers Association (LSTA) has been cancelled because of an illness in one commissioner’s family and because of severe flooding in north Louisiana where some of the commissioners live.

The delay may have been convenient for three of the commission members in that the delay will give them time to formulate an explanation for their own actions.

The commission is charged with the responsibility of investigating individual state troopers accused of wrongdoing and to preside over appeals of punishment handed out to troopers.

The issue before commissioners is the controversy that arose after the LSTA funneled campaign contributions through the organization’s executive director to political candidates. State law prohibits individual state troopers from participating in political campaigns in any form, including endorsements and making campaign contributions.

Because the association’s funding comes largely from membership dues, the laundering of the contributions through the personal account of Executive Director David Young and the ensuing reimbursement of Young for “expenses” prompted outcries from LSTA membership.

Those protests were mostly voiced by retirees because active troopers are reluctant to openly criticize the association’s activities for fear of reprisals and LSTA, in a recent letter to members, seized on that lack protests from active members in an attempt to shift the blame on what it characterized as disgruntled retirees who had been mostly inactive until the issue flared up.

In more familiar parlance, that is known as shooting the messenger.

Among the more visible recipients in recent years, Bobby Jindal and Gov. John Bel Edwards each received in excess of $10,000 and the LSTA even set the precedent of endorsing Edwards in last November’s general election against U.S. Sen. David Vitter but stopped short of complying with a request from State Police Superintendent Mike Edmonson for the association to write a letter of endorsement for Edmonson’s reappointment by Edwards.

Edwards did, in fact, re-appoint Edmonson but following the flap over the campaign contributions, returned the money he received from LSTA. Jindal did not return his contributions.

Retired State Trooper Leon “Bucky” Millet said on Wednesday that the commission appears to be “circling the wagons” in its own defense, given revelations that three of the commission member violated the same statutes against political involvement the LSTA members are being accused of violating. http://laspc.dps.louisiana.gov/laspc.nsf/b713f7b7dd3871ee86257b9b004f9321/85d048928ae51fa086256e9a004cc8e8?OpenDocument

Civil service employees and state troopers are prohibited from engaging in political activity, including making political contributions to candidates.

In the LSTA case, the Code of Governmental Ethics, Section VIII of R.S. 18:1505.2 (B) also lists the making of contributions or loans “through or in the name of another” as a prohibited practice. http://ethics.la.gov/Pub/Laws/cfdasum.pdf

LSTA legal counsel Floyd Falcon told the commission that he did not know why the checks to various political candidates were made in Young’s name.

Young, however, admitted the maneuver was an attempt by LSTA to attempt to circumvent civil service and commission rules when he told the commission he made the contributions as a non-state employee so “there could never be a question later that a state employee made a contribution.” https://louisianavoice.com/2016/01/15/louisianavoice-exclusive-at-long-last-it-can-be-disclosed-that-the-reason-for-all-the-problems-at-state-police-is-us/

On Wednesday, an announcement was posted on the commission’s Web page by commission Chairman Franklin Kyle of Mandeville that said Thursday’s meeting was cancelled “due to the lack of a quorum.” http://laspc.dps.louisiana.gov/laspc.nsf/b713f7b7dd3871ee86257b9b004f9321/3723e021aee8206586256e9a004cf303?OpenDocument

But then Kyle went on to say, “I thought it proper to keep the public informed of the ongoing investigation into State Police Commission rules violations” requested by state police retirees.

Kyle said that on March 3, a rule to show cause was issued to the retirees “to produce the names of Louisiana State Troopers who allegedly violated State Police Commission rules in addition to any evidence they have that supports the allegations. Those gentlemen have until March 18, 2016, to do so, and additional subpoenas may be issued for any additional evidence that will assist the investigation. Upon receipt of sufficient evidence, a public hearing will be scheduled. There will be more information at the April meeting of the (commission), as well as subsequent meetings, until this investigation is completed.”

Wait. What?

Kyle is putting the onus on two retired state troopers to come up with the names of LSTA members who may have initiated the contributions? Isn’t that the job of the commission as an investigative board? The retirees have sought records from LSTA and their efforts have been thwarted at every turn, yet they are expected to come up with the names?

Mr. Kyle, it is the commission which has subpoena power, not a couple of retirees. Do your job and issue the subpoenas. That’s how investigations are conducted.

But then again, perhaps Mr. Kyle and a couple of his cohorts have good reason to delay the investigative process. After all, they are under the same rules as state troopers and civil service employees.

Yet, LouisianaVoice has obtained campaign finance records which show that commission members Kyle, Freddie Pitcher, William Goldring, the wives of Kyle and Goldring and one of Goldring’s companies (Magnolia Marketing) have been quite active in making their own political contributions during their time of service on the commission.

In fact, Kyle was appointed to replace shipbuilder-banker Boysie Bollinger of Lockport because of Bollinger’s political activity.

Now that we know of their own participating in making campaign contributions during their tenure on the commission, it will be more than a little interesting to see how the investigation of LSTA will be handled. Will they recuse themselves, leaving the investigation to the four remaining board members?

Or will the commission saddle the retirees with the impossible task of coming up with names of troopers involved in the decision to make the contributions through Young and to reimburse him for his trouble?

Of, as often is the case, will the probe simply quietly go away with no action taken?

This is Louisiana, after all, and we do have a long-standing tradition to uphold.

Here are the links to the campaign contributions of the three members, their wives and Goldring’s business:

FRANKLIN KYLE CONTRIBS FOR FIRST TERM

FRANKLIN KYLE CONTRIBS FOR SECOND TERM

MELISSA KYLE CONTRIBS

WILLIAM GOLDRING CONTRIB

JANE GOLDRING CONTRIB

MAGNOLIA MARKETING CONTRIBS

FREDDIE PITCHER CONTRIBS