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Archive for the ‘Public Records’ Category

Former Jindal Executive Counsel Faircloth has history of losing state legal cases but gets big fees: $930K in 2 years

Posted in Boards, Contract, Contracts, Governor's Office, Judges, Politicians, Public Records, Transparency on July 23, 2013| 14 Comments »

BATON ROUGE (CNS)—It would seem that Jimmy Faircloth isn’t doing very well when representing the gret stet of Looziana in the various courtrooms around the state—either as an advocate of an unwinnable case on behalf of the state or as a candidate for the Louisiana Supreme Court.

Faircloth’s name has surfaced more often than bubbles in little Flatulent Filmore’s bath water, but always, it seems, on the losing end of the score.

The first time we heard the Louisiana Tech graduate’s name was when he was named in January of 2008 as Gov. Elect Bobby Jindal’s choice as his executive counsel.

Jindal’s pick was controversial from the get-go. Faircloth was still sticky from his three-year hitch as legal counsel for the Coushatta Indians, whom he advised to sink $30 million in a formerly bankrupt Israeli technology firm called MainNet for whom his brother Brandon was subsequently employed as vice president of sales.

It was not the first bad decision by the Coushatta Tribe. Three years earlier, they attracted undesired national attention when it was revealed that they had paid lobbyist Jack Abramoff $32 million to help promote and protect their gambling interests and got little in return.

Those same Coushattas also paid another $400,000 to Aubrey Temple of DeRidder, whom Jindal would later name to the Coastal Protection and Restoration Financing Corp. Temple was never able to account for the $400,000. Temple also was a key player in an attempt by another Jindal ally, Donald T. “Boysie” Bollinger of Lockport, to purchase Toledo Bend water from the Sabine River Authority for possible resale in Texas.

Okay, this is getting way too convoluted. Let’s get back to Alexandria attorney Faircloth.

Faircloth resigned as executive counsel in 2009 to run for the Louisiana Supreme Court. It was a race he lost by 53-47 percent.

Two years later he was fined $1,000 by the Louisiana Board of Ethics for violating state ethics laws when he entered into a contract to represent the Louisiana Tax Commission only six months after he resigned as Jindal’s executive counsel. State law required him to wait a full year before representing any state agency. He returned the $7,000 he had received in legal fees from the Tax Commission.

In December of 2010, Jindal appointed Faircloth to the University of Louisiana Board of Supervisors. In January of this year, Faircloth resigned and was replaced by his wife, Kelly.

The latest episode with Faircloth is yet another legal setback—this time at the hands of the First Circuit Court of Appeal which upheld a lower court decision that the LSU Board of Stupevisors must make public the names of the candidates for LSU president.

The Stupevisors withheld the names of all the candidates except the ultimate selection, F. King Alexander of California State University Long Beach and the Baton Rouge Advocate and the New Orleans Times-Picayune each filed suit to force the board to reveal the names of the three dozen candidates who were considered.

Faircloth, true to form and like his mentor Jindal, refused to admit defeat graciously. He described the matter before the appeals court as “not an appeal” but merely a question of what LSU owed in damages and legal fees. He added that LSU would “get its chance to appeal.”

Normally, only the losing party of a civil court matter would be required to pay damages and legal fees, so it’s somewhat confusing to understand where, exactly, Faircloth is drawing the line between winning and losing or what is and what is not an appeal.

No matter.

Faircloth, if nothing else is a trooper and the matter lives on in the courts—and Faircloth’s meter keeps running.

Other cases in which Faircloth has gone down in flames include a federal case in Tangipahoa in which a U.S. District Court Judge in November of 2012 ordered a halt to implementation of Jindal’s new voucher and teacher hiring laws in Tangipahoa because the state laws conflict with court orders in decades-old desegregation cases in Tangipahoa and at least 30 other parishes.

“They (the plaintiffs) can’t even describe the standard or what programs are affected” by the desegregation order, Faircloth sniffed.

In March of this year, a Baton Rouge district court judge negated the teacher tenure and evaluations section of Gov. Jindal’s education reform.

Faircloth had no comments about that ruling but Jindal had plenty to say. “We expect to prevail in the state Supreme Court,” he said.

Two months later, in May, the Louisiana Supreme Court shot down the Jindal administration’s method of funding the statewide school voucher program, ruling that it diverted money from each student’s per-pupil allocation to cover the cost of private or parochial school tuition.

The very next month, the Supremes struck down a change to the state retirement system that had been pushed through the legislature by Jindal—because the measure had not been approved by the constitutionally-required two-thirds vote.

Ironically, State Rep. Kevin Pearson (R-Slidell), who sponsored the retirement changes in the 2012 legislature, was the same legislator who pushed for the constitutional amendment the previous year that required that any retirement plan which results in an actuarial cost to the state to be passed by a two-thirds vote.

So Faircloth must really feel bad about all those losses, right? After all, those TV lawyer ads say you pay nothing unless you win, right?

Nope and nope. Taking the second question first, those lawyer ads are for plaintiff attorneys who work on contingency. Defense attorneys like Faircloth get paid, win or lose.

That should take care of the first question; Faircloth gets paid, win or lose. And he certainly gets paid well.

LouisianaVoice made our customary public records request. On July 9, we asked the governor’s office, the Office of Risk Management (ORM) and the Division of Administration (DOA) for an accounting. The answer finally came on July 19, eight days late under the state’s public records laws.

There was a caveat with which we take issue: The response from DOA attorney Joshua Melder said, “Some information has been redacted pursuant to the Office of Risk Management’s pending claims privilege.”

The public records law, as we understand it, does protect matters of attorney-client privilege or details of ongoing litigation such as settlement negotiations. Attorney fees would not, as we interpret the law, be protected but we let it pass for now. After all, we don’t possess the knowledge of the great legal minds who protect the state’s interests so proficiently.

The figures for fiscal years 2012 and 2013, exclusive of the figures redacted pursuant to ORM’s pending claim privilege, show that the Faircloth Law Firm pulled down an eye-popping $931,000 in those losing causes–$843,300 of that in FY-2013.

Not a bad return on Faircloth’s $23,000 in campaign contributions to Jindal campaigns in 2003, 2006 and 2010.

Now if he would just win an occasional case, Jindal might be a little happier with his favorite attorney.

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Sexual harassment in DPS rewarded by promotion of guilty party, reprisals against employee who witnessed, reported it

Posted in Ethics, Public Records, State Agencies, State Police on July 21, 2013| 13 Comments »

A state employee who witnesses any incident of sexual harassment is required to report what he sees or hears immediately.

The Civil Rights Act of 1964 made sexual harassment illegal in the workplace and today, in theory at least, federal laws regarding sexual harassment protect virtually all private and public employees in the U.S.

The Louisiana Department of Culture, Recreation and Tourism (DCRT), for example, has a complaint procedure clearly defined in writing which says, “Any employee experiencing or witnessing sexual harassment by anyone in the Office of the Lieutenant Governor and DCRT, including any manager, supervisor, administrator, co-worker, vendor, client or visitor shall immediately report the inappropriate conduct.”

The departmental regulation further says that under most circumstances, complaints should be made to the employee’s supervisor but “if the complaint involves the employee’s supervisor or someone within the direct line of supervision, or if the employee for any reason, is uncomfortable in reporting to his/her supervisor, he/she may contact any other supervisor” or contact the agency’s human resources director.

But if an employee who witnesses sexual misconduct and dutifully reports it he may find himself with a target on his back and he may well end up as the one who finds himself the subject of investigation, punishment and possibly even termination.

Take the case of Dean Vicknair, a former information technology employee of the Department of Public Safety and Corrections (State Police), who was responsible in part for the five-day suspension of his supervisor for sexual harassment of a female co-worker in 2005 but who ended up paying for his actions with his career.

One would think DPS would be the last place where sexual harassment would be tolerated.

Think again.

Even though DPS has an online State Sex Offender and Child Predator Registry site, it appears to have learned nothing from the 2004 incident involving Jeya Selvaratnam, then a supervisor but since promoted to Director of Information Technology and Communications.

In February of 2012, the State Probation and Parole Office, part of the Department of Corrections (DOC), settled a federal sexual harassment lawsuit involving a supervisor and a female employee of the Probation and Parole district office in Thibodaux in which the female victim was awarded $50,000 and the agency was ordered to initiate a sexual harassment training policy for its employees.

DOC spokesperson Pam Laborde said after the suit was settled that agency officials were “very quick and very swift to act” once the woman’s claims were reported to them. “If the (Probation and Parole) director didn’t know about the incident, how can you take action?” she asked. “We do have good policies in place. We’ll just brush them up where we need to.”

Despite her claim that the agency director was unaware of the supervisor’s actions, the Justice Department said at least four other department employees, including a part-time internal affairs investigator, knew about her harassment, which progressed from inappropriate comments to sexual assault,  but said nothing.

Perhaps that was because, even though that case involved a different agency, the DOC employees were aware of Vicknair’s experience at DPS which culminated in his forced retirement nearly six years after first reporting the incident by his supervisor.

In the end, an unblemished career spanning nearly 21 years meant nothing as he was forced out—while Selvaratnam was promoted.

In a seven-page letter of suspension to Selvaratnam dated April 26, 2005, State Police Col. Henry Whitehorn cited “overwhelming” evidence that Selvaratnam pursued the female subordinate over a six-year period, dating back to Nov. 16, 1998 and in December of 2002, while standing outside the State Police building with Vicknair, the female employee walked past and Selvaratnam told Vicknair he wanted to have sex with her (in the interest of decency, we paraphrased the exact quote provided in Whitehorn’s letter). Whitehorn is currently a U.S. marshal in Shreveport.

Soon after that conversation, Vicknair left DPS for the Department of Transportation and Development “because of problems he had with you,” Whitehorn wrote in his letter to Selvaratnam.

Vicknair did not report the conversation to the woman until more than a year later, in January of 2004, at which time the woman lodged a complaint against Selvaratnam, Whitehorn said. The following day, the woman attempted call out to Selvaratnam in a hallway and he turned and berated her verbally, reminding her, “You are my subordinate.”

Whitehorn also noted that until she filed her complaint against him, Selvaratnam repeatedly called the woman into his office for lengthy conversations and outside for frequent smoke breaks—all of which Whitehorn said forced other employees to take up the slack for the work the woman was unable to perform because she felt she had to acquiesce to Selvaratnam’s demands.

Both Selvaratnam and the female employee were married.

“Mr. Selvaratnam, the evidence is overwhelming that you did, over the course of several years, commencing on or about Nov. 16, 1998, repeatedly and for extended periods of time, keep (the woman) away from her duties as an IT Technical Support Specialist. Your behavior created a hostile work environment for (her) by increasingly interfering with her duties. You took (her) away from her duties to such a great extent that other employees had to perform (her) work for her. Your behavior created a gender-based hostile work environment for (her) and was particularly egregious in view of the fact that you were (her) second tier supervisor at the time. Your behavior was in violation of the Department’s Discrimination and Harassment Complaint Procedure…

“…Behavior which is offensive, inappropriate or in any way creates an unpleasant working environment for your co-workers will not be tolerated. Nor will any form of reprisal for retaliation against (the woman) or anyone involved in the investigative process be tolerated.

“Pursuant to Civil Service Commission Rules…you are hereby suspended for five eight-hour days without pay and allowances. Your suspension will begin at 8 a.m. on Monday May 9, 2005, and end at 4:30 p.m. on Friday, May 13, 2005.”

The female employee won a federal lawsuit against DPS, the details of which were ordered confidential by the court and she also received assurances that she would no longer be under the supervision of Selvaratnam. When he was subsequently promoted, he was once again supervising her and she filed a second suit in state court for breach of contract.

Vicknair, meanwhile, was called back to DPS following Hurricane Katrina to assist in Lotus Notes administration (email administration and trouble shooting) because of a lack of skilled employees in that section. He was assured that there was “no way in hell” Selvaratnam would ever be director of the section.

But Selvaratnam was indeed promoted to director at the insistence of State Police Superintendent Col. Mike Edmonson, Vicknair says, and the woman subsequently transferred to another section.

Vicknair said soon after his promotion Selvaratnam called him into his office and said he had read Vicknair’s transcript and that he “knew who his friends were and who his enemies were,” according to a federal lawsuit filed by Vicknair.

As pressure mounted on Vicknair, he filed grievances against Selvaratnam. When the DPS Grievance Committee investigated his complaints, Vicknair said, the committee interviewed Selvaratnam but none of Vicknair’s witnesses who he said could back up his allegations were called to testify.

Edmonson, who was best man at Selvaratnam’s wedding, was a member of the grievance committee that declined to interview any of Vicknair’s witnesses.

It should be noted here that LouisianaVoice recently received a comment on its June 28 post about the consolidation of 20 Executive Department IT operations from Selvaratnam’s state email address which said, “I don’t see the problem here. Why does everyone hate Governor Jindal? Is this a racial issue?”

When we pointed out that normally a state employee who uses his state email account to respond to political blogs would be reprimanded, Selvaratnam quickly fired off another email—again, from his state email address—denying that he was the author of the original comment. “I did not write to you,” he wrote. “I am not sure how you received this e-mail or who did it or their motive. I would appreciate it if you would remove this from your blog.”

Vicknair, who attempted to comply with requirements to report sexual harassment, only to subsequently find himself the subject of an investigation that left him jobless and which nearly cost him his home, was left disillusioned and more than a little jaded by his experience.

In a letter to DPS Internal Affairs, Vicknair said, “You stated that I failed to cooperate with the investigation” and was accused of inappropriate conduct. “Please explain to me how an attempt to protect a career of 20 years and (to) expose the internal corrupt actions of the current DPS administration warrants a charge of conduct unbecoming.

“My recent experiences have proven that integrity is not a foundation for the internal grievance process and is merely an established ‘feel good policy’ for the perception of adhering to state and federal requirements.

“I should never have been suspended and forced into early retirement after 20 years of impeccable, dedicated state service, but I went down swinging,” he said. “I continue to fight the good fight against corruption in an effort to prevent another person from facing a similar travesty.”

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Oops, DOE is onto us: probe of IT emails seeks to plug leaks, plant bogus stories; Ixnay noay tatesay omputerscay ipstay

Posted in ATC, Education, Governor's Office, Layoffs, Public Records on July 16, 2013| 26 Comments »

John White just doesn’t get it. A few months ago he went ballistic over information leaked to LouisianaVoice and sources inside the Department of Education (DOE) told us he launched an in-house investigation, including employee emails, in an effort to learn the source of the leaks.

We responded to that report by sending an email to White informing him that none of his employees were as careless with emails as he (remember the “Dude, you are my recharge” email he sent to Pete Gorman, senior vice president of News Corporation’s education division Amplify when Gorman asked White to dinner?).

We informed White that the information we received had been downloaded on a flash drive and passed along to us. We even offered to supply White with a blank flash drive in case he had any information he would like to provide. He never responded to our offer.

Then there was that mysterious email accidentally copied to us from DOE legal counsel Joan Hunt to Troy Hebert, director of the Office of Alcohol and Tobacco Control (ATC) as a result of one of our many requests for public records that DOE loves to ignore until they’re hauled into court and hit with fines, court costs and attorney fees. The message to Hebert, who apparently has wormed his way into Gov. Jindal’s inner circle, said, “Troy, we need to reply and say that.”

That’s it. Nothing else. And when we tried to obtain a copy of that email, we were informed that it was subject to attorney-client privilege despite the fact that Hebert, as head of ATC, is not affiliated with DOE, is not an attorney, and certainly is not a client of Hunt.

But now, a new twist has surfaced that may be (or maybe not) related to that exchange between Hunt and Hebert.

Were they laying the groundwork to set up a couple of internet bloggers who have been an ongoing nuisance to White and DOE? If current reports are accurate, it could well be.

Word out of DOE is that administrative types (we have their names but we are not prepared to release them at this time) are leaning hard on DOE employees in the Information Technology (IT) section, even to reviewing all their emails and harassing them in attempts to learn who is leaking information to Jason France of the Crazy Crawfish blog and to Tom Aswell of LouisianaVoice.

Also part of the alleged game plan is to plant tantalizing—but bogus—stories in an effort to get our sources to leak the information to us and to get us to publish them so that we can be discredited publicly and revealed as hacks—and so the leakers can be nailed to the wall.

Silly rabbits, you can’t even devise a plan to plug leaks without the plan itself being leaked. You couldn’t plant petunias without growing a crop of ragweed. I’ve known mayonnaise farmers in Missoula, Montana, who were better at planting things.

As we said earlier, we know the identities of three of the administrative types at the center of this little high school stunt but we’ll keep them confidential for now with the option of releasing them down the road.

Finally, we would be remiss if we did not remind White that our sources are not stupid, nor are they careless. Anything they reveal to us will never be through a state computer—unlike the state employee (Department of Public Safety) who used his state email account to log a commit on our blog today (Tuesday)—at the bottom of our June 28 IT consolidation story—asking us if racism was at the root of our criticism of Jindal. (First of all, we’re anything but racist. Secondly, Lord knows we don’t need racism as grounds for offering legitimate criticism of this administration.)

Finally, Mr. White, we have already been investigated by the best (in Gov. Jindal’s eyes, apparently, and of course, in his own mind). Mr. Hebert ordered an investigation of us some months ago and that came up empty.

Seems we’re actually pretty boring but you’d never know it by the amateur sting operation being concocted by DFA (Detectives for America, the investigative arm of TFA— Teach for America).

Wonder if we should submit a public records request for interoffice emails dealing with planting fake news stories with a couple of pesky blogs?

ESSAGEMAY OTAY OURCESSAY: IXNAY NOAY HETAY TATESAY OMPUTERSCAY.

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Another Jindal Swindle in trouble: SELH, aka Northlake, loses Medicare eligibility nine months after privatization

Posted in Contract, Contracts, Governor's Office, Health Care, Layoffs, Privatization, Public Records, Transparency, Uncategorized on July 11, 2013| 21 Comments »

It’s been all of nine months since Meridian Behavioral Health Systems took over operation of Southeast Louisiana Hospital (SELH) in Mandeville in what we like to call the Jindal Swindle and already the facility has been notified that it has been found to have deficiencies serious enough to threaten its eligibility to continue participation in Medicare.

Meridian, a Florida-based company chosen to run SELH after Gov. Bobby Jindal chose to close the hospital, has been running the 58-bed facility under the name of Northlake Behavioral Health System.

Jindal announced last year that he was closing the hospital, effective Oct. 1, a move that left mental patients in all of southeast Louisiana, including the New Orleans, Houma and Thibodaux metropolitan areas, with no access to any state mental treatment facility. The move threw more than 300 SELH employees out of work.

Formed as a company less than a year before taking over the Mandeville hospital, Meridian had never handled a facility the size of SELH and in fact, listed no facilities it had ever run on its application.

And it didn’t take long for that inexperience to surface.

Northlake Behavioral Health System CEO Richard Kramer was notified by the Center for Medicare & Medicaid Services (CMS) on June 3 that Northlake no longer qualified for participation in Medicare.

“After a careful review of the May 23, 2013, survey report, we have determined that Northlake Behavioral Health System no longer meets the requirements for participation in the Medicare program,” wrote Greg Soccio, manager of the CMS Non-Long Term Care Certification and Enforcement Branch.

“Although the deficiencies do not constitute an immediate threat to the health and safety of patients, the deficiencies have been determined to be of such a serious nature as to substantially limit your hospital’s capacity to render adequate care and prevent it from being in compliance with all the conditions of participation for hospitals,” Soccio’s letter said. “Consequently, we plan to terminate participation in the Medicare program if compliance is not achieved within the given timeframes specified.”

Soccio, in his letter, gave Sept. 1, exactly 11 months after Meridian took over the facility, as the date of its termination in Medicare. “CMS will monitor your progress in correcting the deficiencies cited,” he said. “You must submit by June 14 a plan of correction with acceptable time schedule.” His letter, while imposing a July 3 deadline for completion of corrective action, listed criteria Northlake must meet for recertification:

• The plan must address correcting the specific deficiency cited;

• The plan must address improving the processes that led to the deficiency cited;

• The plan must include procedures for implementing the acceptable plans of correction for each deficiency cited;

• A completion date for the implementation of the plans of correction for each deficiency cited;

• All plans of correction must take a QAPI (Quality Assurance/Performance Improvement) approach and address improvements in its systems in order to prevent the likelihood of the deficient practice reoccurring;

• The plan must include the monitoring and tracking procedures to ensure that the plan of correction is effective and that specific deficiency cited remains corrected and/or in compliance with the regulatory requirements;

• The plan must include the title of the person responsible for implementing the acceptable plan for correction.

Subsequent to Soccio’s letter, Kramer submitted a 43-page plan of correction to CMS on June 14, the deadline given by CMS.

As serious as the letter may have been to Northlake and as welcome as it may have been to those opposed to the privatization, it did leave one gigantic loophole for Jindal:

“The Louisiana Department of Health and Hospitals (DHH) will conduct a focus Medicare survey of your facility to assess your hospital’s compliance with the conditions of participation that were found out of compliance and assess your corrective actions,” Soccio’s letter said.

“Compliance must be achieved at the time of this revisit if further action is to be avoided. If you remain out of compliance at the time of your revisit, you can expect to receive another letter advising you of the continuation of the termination process and your appeal rights.

“You will again be asked to submit an acceptable plan of correction to our office and we may conduct one final revisit before the termination date,” it said.

That July 3 deadline was more than a week ago and a CMS spokesperson in Dallas said on Wednesday that no new paperwork had been received on Northlake by his office.

But allowing DHH to make the determination of compliance? This is the same agency that, under former Secretary Bruce Greenstein, was allowed to manipulate specifications to allow Greenstein’s former employer, CNSI, to bid on and win a $280 million contract that is now the subject of a federal investigation.

Greenstein may be gone but his successor, like Greenstein, was appointed by Jindal and does anyone really doubt that the governor maintains an iron grip over DHH? And Jindal doesn’t like to admit he ever made a mistake.

Anyone care to take any bets on the outcome of that DHH focus Medicare survey of Northlake?

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Notable Quotables (in their own words)

Posted in Contract, Contracts, Ethics, Governor's Office, House, Senate, Legislature, Legislators, Notable Quotables, Politicians, Public Records, State Agencies, Transparency on July 10, 2013| 2 Comments »

“I believe that all elected officials should—as I have always endeavored to do—act with the interests of our citizens in mind.”

—State Rep. Chris Broadwater (R-Hammond), vice chairman of the House Labor and Industrial Relations Committee and former director of the Office of Workers’ Compensation, defending his work as attorney for insurance companies seeking to deny or reduce workers’ compensation claims and his admitted practice of routinely consulting with his successor OWC Director Wes Hataway on pending matters before OWC that directly affect his clients.

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