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Archive for the ‘Public Records’ Category

Jindal administration’s ugly double standard in dealing with sexual harassment complaints—even within the same agency

Posted in ATC, Courts, Ethics, Governor's Office, Judges, Public Records on February 11, 2013| 25 Comments »

The administration of Gov. Bobby Jindal apparently has a double standard in the manner in which it handles complaints of sexual harassment against appointees.

When Kelli Suire accused her former boss, commissioner of the Louisiana Office of Alcohol and Tobacco Control Murphy J. Painter, of sexual harassment, it mattered little to Jindal and then-Chief of Staff Stephen Waguespack that she had already recanted those allegations. Painter was immediately called to the governor’s office and summarily fired from his job.

But when Painter’s successor, Troy Hebert, was accused of sexual harassment—and other transgressions—by an ATC agent nearly two years ago, it was the agent, Randall Kling, who was fired and the Jindal administration then threw its financial and legal resources behind defending Hebert, who remains employed.

But Kling may yet have the last word in what has now turned into a legal battle between him and the Department of Revenue, the agency under whose budget ATC is funded, but now the issue is retaliation against his right of free speech.

The First Circuit Court of Appeal on Jan. 25 overturned a lower court decision which found no right of action by Kling and which dismissed his lawsuit with prejudice.

Kling and other ATC employees initially submitted a complaint to former Revenue Secretary Cynthia Bridges about what they considered to be offensive behavior on the part of Hebert on March 10, 2011. Then on March 16, 22 and 25, Kling submitted additional complaints to Dee Everett, director of human resources at Revenue.

Among his complaints were claims of threats, hostile work environment, systematic intimidation and discrimination, favoritism, humiliation, harassment, inefficiency and morale problems at ATC.

On March 30, 2011, Kling was terminated and on May 26, he filed suit against the Department of Revenue, claiming that he had been fired in retaliation for his complaints regarding Hebert and his department.

The department filed objections of no cause of action, claiming that Kling’s allegations failed to set forth a cause of action for a free speech retaliation claim because his complaints did not involve “matters of public concern,” but rather were merely the complaints of an employee against his superior that were not entitled to constitutional protection.

Kling subsequently filed an amended petition in which he set forth 24 alleged violations of agency policy, procedure and law, including allegations that Hebert:

• Compromised the Civil Service Performance Planning and Review System;

• Operated the ATC in total disregard of State Civil Service rules;

• Used state resources for personal and political gain and in furtherance of his plan to seek elective office;

• Attempted to undermine ethics laws by attempting to form a non-profit entity whereby funding could be solicited and received from the alcohol industry which is regulated by ATC, and boasting that the alcohol industry would gladly donate funds to furnish his proposed new office suite at ATC;

• Schemed to build himself a new office in such a manner as to avoid legislative and Division of Administration oversight;

• Harassed employees who cooperated with the investigations conducted by the Office of Inspector General and the Louisiana State Police concerning the conduct of former commissioner Painter;

• Repeatedly violated sensitive computer policies (a charge for which Painter was indicted and is scheduled to stand trial on April 22), which violations had the potential to jeopardize sensitive law enforcement initiatives and compromised the safety of ATC agents;

• Was guilty of misconduct that threatened the ability of ATC to properly perform its duties;

• Subjected ATC employees to sexual harassment, gender discrimination, humiliation and systematic employment practices that placed ATC agents in potential danger, and

• Was responsible for a mass exit of qualified and experienced ATC agents.

The state, choosing to eschew the attorney general’s office in defending Hebert, instead contracted with outside counsel E. Wade Shows who promptly argued that Kling was attempting to assert a claim for retaliatory discharge due to complaints that were not made by him individually, but by at least 11 other employees of ATC.

It might appear somewhat unusual to argue that a single employee had no cause of action—because his claims were based on the complaints of 11 co-workers—since that argument would seem to acknowledge that agency problems were not confined to a single employee but instead were experienced by several others as well and that problems were agency-wide in nature.

Shows also argued that Kling’s amended petition failed to state a viable cause of action as the complaints he made were simply that of an “unhappy employee” and not a “matter of public concern,” and therefore not constitutionally protected.

Apparently the trial court judge, A. William Morvant, agreed.

Morvant, at oral arguments held on Jan. 23, 2012, refused to allow Kling’s attorney to argue on the basis that the opposition brief was untimely and also refused to allow Kling to testify on the exception of no right of action, although he did allow Kling’s testimony to be proffered (offered into evidence).

Morvant subsequently ruled that Kling’s petition did not set forth a cause of action for retaliatory discharge because none of the allegations rose to the level of public concern, but were merely workplace criticisms by Kling in his role as an employee and not as a concerned citizen (see: Kelli Suire’s complaint against Painter for the contrast in the manner in which similar complaints are handled by the governor’s office—LouisianaVoice, Feb. 6 post https://louisianavoice.com/2013/02/06/emerging-claims-lawsuits-could-transform-murphy-painter-from-predator-to-all-too-familiar-victim-of-jindal-reprisals/).

Morvant signed his judgment a year ago, on Feb. 1, 2012, sustaining the exception of no right of action, thereby dismissing Kling’s lawsuit with prejudice (meaning final judgment as opposed to without prejudice which means the matter may be revisited).

Kling appealed and the First Circuit ultimately disagreed with Morvant—and Shows—and reversed Morvant’s ruling late last month.

The First Circuit, which appeared to offer a lesson in law to Morvant, said, “…In order to have an interest in asserting a retaliatory discharge claim, Mr. Kling does not have to be a direct recipient of the conduct complained of…”

“Mr. Kling claims that he was terminated from his position in retaliation for the exercise of his constitutionally protected right of free speech. His interest in prosecuting this lawsuit is not as a victim of harassment or discrimination, but as an employee who was fired in retaliation for complaining about Mr. Hebert’s conduct,” the appellate court ruling says.

“Thus, the fact that he may not individually have been a victim of some of the complaints in the amended petition, such as gender discrimination, is of no moment in determining whether he has a right of action to assert a retaliatory discharge claim.

“We find that (ATC) failed to meet its burden of establishing that Mr. Kling had no interest in prosecuting this retaliation claim….Therefore, we find that the trial court committed legal error in granting the exception of no right of action.”

The ruling then went on to address a little something contained in the First Amendment—the right of free speech:

“Article I, Section 7 (of the U.S. Constitution), on which Mr. Kling’s lawsuit is based, gives Louisiana citizens the right to speak, write, and publish their sentiments on any subject. It is well settled that an employee of a public entity may not be discharged for exercising his constitutionally protected right to freedom of expression despite his at-will status.

“The law has recognized that there are some types of speech, which by their very nature, address matters of public concern,” the ruling continued. “For instance, the disclosure of misbehavior by public officials is a matter of public concern and is therefore entitled to constitutional protection.

“These allegations of unethical and perhaps illegal conduct on Mr. Hebert’s part clearly are matters of public concern.

“We find that Mr. Kling’s petition does set forth a cause of action for retaliatory discharge and reverse the trial court’s judgment sustaining the exception of no cause of action and dismissing this lawsuit with prejudice.

“The judgment sustaining the peremptory exception raising the objection of no cause of action is also hereby reversed.

“This matter is remanded to the trial court for proceedings consistent with this opinion,” the ruling said, adding that all costs of the appeal were assessed against the Department of Revenue.

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Notable Quotables (in their own words)

Posted in ALEC, American Legislative Exchange Council, BESE, Charters, Education, Lobbyist, Notable Quotables, Privatization, Public Records, Transparency, Vouchers on January 30, 2013| 8 Comments »

“When it comes to K through 12 education, we see a $500 billion sector in the U.S.”

—Fox Network magnate Rupert Murdoch, commenting in 2010 on the enormous business opportunity in public education awaiting corporate America. http://www.inthepublicinterest.org/blog/jeb-bushs-education-nonprofit-really-about-corporate-profits?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+itpi-blog+%28ITPI+Commentary+Feed%29
“Testing companies and for-profit online schools see education as big business.” said “For-profit companies are hiding behind FEE and other business lobby organizations they fund to write laws and promote policies that enrich the companies.”

—Donald Cohen, chairperson for In the Public Interest, commenting on coordinated efforts by corporations, the Foundation for Excellence in Education (FEE) and ALEC to pass legislation favorable to corporate investors in public education. http://www.inthepublicinterest.org/node/2747

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Nonprofit group releases emails which depict connection between ALEC, education reform and corporate investors

Posted in ALEC, American Legislative Exchange Council, BESE, Charters, Education, Ethics, Governor's Office, Lobbyist, Privatization, Public Records, Vouchers on January 30, 2013| 14 Comments »

Any lingering doubts about the connection between public education, the American Legislative Exchange Council (ALEC) and for-profit education providers may have been erased once and for all with the release of thousands of emails that demonstrate that an educational foundation begun by former Florida Gov. Jeb Bush is “distorting democracy” by molding state education policies to benefit the foundation’s private corporate donors.

Stories about the emails were published in Wednesday’s Orlando Sentinel http://www.orlandosentinel.com/features/education/os-bush-foundation-criticism-20130130,0,7386113.story but no Louisiana newspapers had picked up the story.

Donald Cohen, chairperson of the nonprofit In the Public Interest, http://www.inthepublicinterest.org/blog/jeb-bushs-education-nonprofit-really-about-corporate-profits?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+itpi-blog+%28ITPI+Commentary+Feed%29 released the emails, which included correspondence between Bush’s Foundation for Excellence in Education (FEE) and a second group Bush founded called Chiefs for Change, whose members are current and former state education leaders who support Bush’s education reform agenda.

He said the emails “conclusively reveal that FEE staff acted to promote their corporate funders’ priorities, and demonstrate the dangerous role that corporate money plays in shaping our education policy. Correspondence in Florida, New Mexico, Maine, Oklahoma, Rhode Island and Louisiana paint a graphic picture of corporate money distorting democracy.”

That agenda includes school choice, online education, school accountability systems based on standardized tests, evaluating teachers on the basis of student test scores and giving schools grades of A-F on the basis of those test scores.

Louisiana Education Superintendent John White is a member of Chiefs for Change.

Some of the emails released by Cohen included correspondence between FEE and White and White’s predecessor, Paul Pastorek.

The emails provide conclusive evidence that FEE staff promoted their corporate funders’ interests in Florida, New Mexico, Maine, Oklahoma, Rhode Island and Louisiana. Those interests coincide with the agenda promoted by ALEC’s pay-for-play operation. Corporate donors work closely with state legislators and state education policy makers at ALEC conferences, seminars and annual meetings, according to the nonprofit Center for Media and Democracy.

The emails between FEE and state education officials show that FEE, at times working through its Chiefs for Change affiliate, wrote and edited laws, regulations and executive orders in such a way as to enhance profit opportunities for FEE’s corporate funders.

Bush’s organization is supported by many of the same for-profit school corporations that also provide funding for ALEC. Those corporations vote as equals with ALEC legislators on templates to change laws governing America’s public schools.

FEE also receives financial backing from many of the same conservative foundations striving to privatize public schools that also bankroll ALEC. FEE and ALEC lobby for many of the same changes to state laws, changes which benefit their corporate benefactors.

FEE and ALEC also have many of the same “experts” who serve as members or staff employees and the two organizations also collaborate on the annual ALEC education “report card” which grades states’ allegiance to their policies.

FEE acted as a conduit for ALEC model legislation for Maine Gov. Paul LePage which removed barriers to creating online K-12 schools and in some cases, required online classes.

LePage’s agenda was eerily familiar in its call for eliminating class size caps, student-teacher ratios, eliminating the ability of local school districts to limit access to virtual schools and allowing public dollars to flow to online schools and classes.

The emerging importance of education as a corporate cash cow was underscored in 2010 when Rupert Murdoch, who has his own education division called Amplify, said, “When it comes to K through 12 education, we see a $500 billion sector in the U.S.”

Amplify is one of FEE’s corporate donors, as are K12, the Pearson Foundation and McGraw-Hill.
Last February, FEE CEO Patricia Levesque urged state education officials to introduce StubHub, a communications tool, into their states’ schools. Jeb Bush is an investor in StubHub.

An April 26, 2011, email indicated that FEE, through Chiefs for Change project, had engaged John Bailey, a director of Dutko Grayling. Levesque wrote to Pastorek only two weeks before his resignation as state superintendent:

“John Bailey, whom you met over the phone, will be on the call to provide an update on reauthorization discussions on the Hill. He is going to be on contract with the Foundation to assist with the Chiefs’ DC activities in light of Angie’s departure.

Dutko has been accused of working with industry front groups in the past,” Levesque wrote. “For example, Dutko worked with AIDS Responsibility Project (ARP), an industry-supported effort described by an HIV/AIDS policy activist as a ‘drug industry-funded front group.’”

Cohen’s organization also uncovered FEE documents indicating the foundation reimbursed Pastorek and White, the two men who have led the state’s education department under Gov. Bobby Jindal, for their travel to Orlando and Washington, D.C., for events sponsored by FEE and the Chiefs for Change.

Dutko Grayling a K Street lobbying firm in Washington which has been struggling to maintain its position as one of the top firms in the nation’s capital.

“These emails show a troubling link between Jeb Bush’s effort to lobby for ‘reforms’ through his statewide Foundation for Florida’s Future, his national Foundation for Excellence in Education, and the powerful corporations who want access to billions of our tax dollars by re-shaping public education policies just to create markets for themselves—none of which are in the best interest of our children,” Public Interest quoted a Florida parent as saying.

“Testing companies and for-profit online schools see education as big business, said Cohen. “For-profit companies are hiding behind FEE and other business lobby organizations they fund to write laws and (to) promote policies that enrich the companies.”

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Dispute in Winn Parish over 55,000-acre hunting lodge reads like a Grisham novel with cast of Mike Foster, Dick Cheney and imprisoned former Winn sheriff Bodie Little

Posted in Governor's Office, Grant, Grants, Legislature, Legislators, Politicians, Public Records, Revenue on January 15, 2013| 16 Comments »

A wrongful arrest lawsuit filed in 8th Judicial District Court in Winnfield names as defendants a former Louisiana Wildlife Commission chairman and a Department of Louisiana Wildlife and Fisheries agent but the litigation is only the latest in an ongoing dispute whose roots go far deeper into the lush pine forests of Winn, Caldwell and LaSalle parishes.

Wyndel Earl Gough (pronounced “Goff”) and Gary L. Hatten filed the lawsuit on Jan. 10, naming William “Bill” Busbice of Broussard, former chairman of the Louisiana Wildlife and Fisheries Commission during the administration of former Gov. Mike Foster, as one of the defendants.

Also named were Terry Carr, identified as an overseer or manager of Busbice’s Deer Management Assistance Program (DMAP) land, and wildlife agent Rusty Perry after Gough and Hatten were arrested by Perry in December of 2010 for illegally hunting deer on DMAP land without Busbice’s permission.

It was not until April of 2012, however, that a bill of information was issued by the district attorney charging the two with one count each. On Oct. 24, those charges were formally dismissed by the district attorney’s office.

Both Gough and Hatten deny ever having hunted on DMAP property.

Busbice began purchasing some 55,000 acres in the three parishes, mostly in Winn, after Louisiana-Pacific shut down its operations at Urania in 2002. Louisiana-Pacific initially sold the forest land to Barrs & Glawson Investments of Atlanta, GA, to Roy O. Martin Lumber Co. and to Martin-Urania Corp. for $74 million. Barrs & Glawson re-sold tracts totaling 50,383 acres in Winn, 6,068 acres in LaSalle and 4,800 in Caldwell to Six-C Properties, headed by Busbice.

Since purchasing the land, Busbice has erected eight-foot fencing around the property and constructed a hunting lodge on the land that caters to high rollers who don’t mind ponying up a few thousand dollars for the privilege to hunt deer.

Six-C subsequently donated 1,500 acres of the land to Make A Wish Foundation, a nonprofit organization dedicated to granting wishes to children with life-threatening medical conditions.

Additional property owners in the area, including other members of the Gough family, claim that Busbice’s fencing in 55,000 acres in the three parishes, mostly in Winn, has deprived them of their hunting rights.

One of those, Michael Atkins, sued Busbice and his company, Six-C Properties, after Busbice erected a fence completely surrounding 10 acres of land owned by Atkins. His lawsuit, which he won at the trial court level but which was overturned in part on appeal, contended that the fence not only prevented him from hunting but also blocked access to his property.

The latest lawsuit, however, goes back more than a decade and involves principals other than Busbice and the two plaintiffs.

Names that have surfaced in what has become a conspiracy-laden story include imprisoned former Winn Parish Tax Assessor A.D. “Bodie” Little, former Gov. Mike Foster and former Vice President Dick Cheney.

Landowners, including the Goughs, maintain that Foster hosted Cheney on a hunting trip in 2002 and shortly afterwards a federal grant came through Foster’s administration which was used to purchase the land which eventually came under the control of Busbice and Six-C.

Efforts by LouisianaVoice to confirm that allegation have been unsuccessful, though an entry of more than $87.86 million was included on page 29 in Foster’s fiscal year 2003-2004 executive budget under the column heading of Federal Funds.

Marty Milner, fiscal officer for the Office of Facility Planning and Control, said in a 2008 email to investigator Art Walker that he had found the $87.86 million but some projects were funded through the Department of the Military and the Department of Transportation and Development but his office did not handle the accounting for those departments. Accordingly, he said, he was unable to determine the disposition of the money.

Michael Gough, one of the landowners in the area, likened the Six-C hunting camp to the state’s arrangement with the White Lake Preservation in Vermilion Parish. In that case, BP donated the 71,000-acre preserve to the state but retained mineral rights on the property—and received millions of dollars in tax breaks.

Foster, governor at the time, negotiated the deal with BP and subsequently appointed a board comprised of private citizens to manage the property.

Another controversy surrounding the Six-C property arose in 2008 when a group of Winn Parish taxpayers filed suit against then-assessor Bodie, claiming that the increase in their taxes was a direct result of their opposition to Bodie’s election as sheriff.

Bodie was sentenced to a 13-year federal prison term last August for drug possession with intent to distribute.

An Alexandria Town Talk investigation revealed that several of Bodie’s friends benefitted from under-assessments. Among those was Six-C, which was the beneficiary of an assessment that was $351,800 low, according to one local resident.

Under the $20 per acre forestland value, Six-C was billed $98,601 on its Winn Parish properties, then consisting of 31,600 acres. Winn Parish resident Grady McFarland, however, said Six-C should have paid taxes based on an $88.90 per acre value, or $450,410.

Almost as an afterthought to the whole affair, Glenn Austin, district conservationist for the Natural Resources Conservation Service, accompanied Michael Gough on a tour of several locations around the boundary of Six-C property to inspect where “flood flaps,” made from old conveyor belts, were stretched across the bottom of the fence where it crossed streams and creeks in the area.

The flaps, installed to prevent wildlife from escaping, impeded the water flow, causing flooding and erosion. “There was sediment deposited within the channel banks at almost every location,” Austin said. “This increase in sediment load and increased turbidity in the water channels could be degrading the water quality” within the streams, he added.

Austin told Gough that if the area was deemed to be a wetland, then the U.S. Army Corps of Engineers would have regulatory authority over the area.

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Notable Quotables (in their own words)

Posted in Governor's Office, Health Care, Notable Quotables, Public Records on December 10, 2012| 8 Comments »

“Certainly we believe that conducting public business, even when using personal means of communication, is subject to public records law.”

—Commissioner of Administration Kristy Nichols, apparently trying to explain that the administration never, ever intended to conceal informatin from the public—no way, no how.

“Please be careful to send stuff from Kyle (π-yush Jindal communications director Kyle Plotkin) like what you just sent….only to my gmail. May have accidentally hit my state addy (address), but they (the governor’s office) are very particular.”

—Department of Health and Hospitals Secretary Bruce Greenstein health policy adviser Calder Lynch, directing a DHH employee not to use a state government email account. (No word if this was cleared through Kristy Nichols.)

“People use private accounts to hide things. If government business is conducted or information about it is sent or received on personal computers or through personal email accounts, that does not keep it from being the public’s business.”

—Kenneth Bunting, executive director of the National Freedom of Information Coalition at the University of Missouri.

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