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Archive for the ‘Public Records’ Category

3rd lawsuit filed over Jindal’s education reform bill; ‘Fasten your seat belts, it’s going to be a bumpy night’ (Bette Davis)

Posted in BESE, Charters, Education, Governor's Office, Public Records, Transparency, Vouchers on June 28, 2012| 7 Comments »

A third lawsuit was filed in state district in Baton Rouge on Thursday that charges Gov. Bobby Jindal and the legislature with violating the Louisiana Constitution when enacting Act 2 of 2012.

The action was taken on behalf of more than 30 local school boards working through the Louisiana School Boards Association, according to Robert Hammonds, legal counsel to LSBA and many of the local districts involved.

“All elected officials, including school board members, are required to take an oath of office that pledges to uphold the Constitution and laws of the State,” observed John Smith, president of LSBA and a school board member in St. Charles Parish.

“To the best of our ability, the members of LSBA operate mindful of our oath,” he added. “We have a right to expect that the Governor and members of the Legislature do likewise, and we have both a right and a civic duty to challenge them when we feel that they have failed to do so.”

“The Constitution was approved by the voters of the state”, according to Hammonds, “and, if the state wants to act contrary to its provisions, the Legislature should put before the voters the changes it wants to see. Until those changes are approved by the voters of the state, however, the existing provisions apply and cannot be disregarded by the Governor, the Legislature, or the school boards bringing this action.”

One of those constitutional requirements is that all bills receive majority vote of the membership of both houses to become effective. The vote on the MFP concurrent resolution (SCR 99) in the House of Representatives was 51 in favor, 49 opposed, and 5 not voting. House Speaker Chuck Kleckley, R-Lake Charles, ruled that the resolution had been approved. When he was questioned by other representatives about how it could have passed since it did not get majority vote of the 105 member House of Representatives, he stated that the House had a “long history” of violating the Constitution.

The LSBA-coordinated legal action is mounted against the Act 2 part of Gov. Jindal’s capitalist education reform package. Vouchers, legacy charter schools, and other parts of the reform program included in SCR 99 will siphon from the public school systems the limited dollars received from the state for public education. There has been no increase in state funding of public education for the last four years, despite ever increasing costs to the school systems for state-mandated retirement and group health insurance costs, among other expenditures.

“The lawsuit alleges that Act 2 and SCR 99 violate the Constitution by diverting money to non-public schools when the Constitution mandates the funds be allocated to public elementary and secondary schools to insure a minimum foundation of education in those public schools,” said Hammonds. The suit also alleges that part of the public dollars to be distributed to non-public schools, groups, and programs in Act 2 and SCR 99 comes from locally generated tax revenues. The tax propositions passed by the voters in each local school system call for the funds generated by those measures to be used for the benefit of the students and employees of that system, though, and not for the support of private and parochial schools and their employees.

Gov. Jindal claims that Act 2 gives parents the opportunity to escape failing schools. He has touted the state’s RSD schools as models of educational reform despite the fact that 100 percent of direct-run RSD schools have received grades of “D” or “F” and 79 percent of the RSD charter schools have received grades of “D” or “F”, according to Smith. “It makes no sense – educationally or financially – to take more than $150,000,000 from public school systems in the state to fund state-run and state-supervised programs that are less successful than those operated on the local level.

A preliminary hearing on the LSBA case, which will be consolidated with the cases filed by the Louisiana Federation of Teachers and the Louisiana Association of Educators, is expected July 10, Hammonds said. “It is significant that the LSBA, the LFT, and the LAE have similar concerns about Act 2 and SCR 99 and the impact of such legislation on the future of public education in this state. We will be working together to bring those concerns to the attention of the court in the clearest and most concise fashion.”

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Notable Quotables (in their own words)

Posted in Higher Education, Notable Quotables, Public Records, Transparency on July 11, 2011| 1 Comment »

“The institution will require reimbursement for the associated costs for conducting this research and for preparation of documents necessary to satisy your request. To perform the research and to compile the information, we estimate that the task will take a MSU employee approximately two hours to complete. We estimate the total cost to the university to be approximately $36.”

—Eddie P. Meche, CPA and Vice President of Business Affairs for McNeese State University, in reply to LouisianaVoice request for records of the number and costs of state cell phones issued to McNeese personnel. After some rather intense negotiations over principle (not one other state agency tried to extract funds for compliance with our request), the powers that be at McNeese acquiesced and provided the information at no charge.

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How to request a public record from any local or state agency

Posted in Public Records, Transparency on June 19, 2011| 1 Comment »

We have been asked to post instructions that our readers may follow so that they may request public records.

Whether you wish records from your municipal government or the state makes no difference: the law is the same. For state records from the Division of Administration and any agency under the DOA umbrella, make your requests to:

mark.brady@la.gov
dirk.thibodeaux@la.gov
doacommissioner@la.gov
lesia.batiste@la.gov

Address your emails to each one of these individuals. Remember, state law stipulates that they must make records available for inspection immediately or notify you as to why they are not available.

Begin your request with:

Pursuant to the Public Records Act of Louisiana, R.S. 44:1 et seq., I request a copy of the following information:

Then explain in specific detail what information you are requesting.

You may also want to attach the Public Affairs Research Council publication on public records (Citizens’ Rights Card) which you may access at:

http://www.la-par.org/rightscard.cfm

PAR’s Sunshine Law Fact Sheet offers a plain-language explanation of the state’s sunshine laws with practical tips on how the public can participate in open meetings and request public records. The documents are designed to be distributed by citizen groups as one-page, double-sided reference tools for guidance through the sometimes complicated process of gaining access to records and meetings of state and local government bodies.

CITIZENS’ RIGHTS UNDER THE PUBLIC RECORDS LAW (R.S. 44:1-41)
Anyone 18 or older has the right to examine, copy or obtain a copy of a public record (unless specifically exempted) of any public body including any state, parish or municipal agency or board (including the Legislature). Public records requests may be submitted by mail (by court ruling). Generally anything “having been used, being in use or prepared” for use in the conduct of public business is a public record, regardless of physical form. Public records include such things as drafts of documents, statistics, maps, letters, memos, budget requests, budgets, tapes, electronic data, payrolls, certain retirement information, and tax assessment rolls.

No fees may be charged for inspecting records during regular business hours. A requester may be asked to pay in advance if overtime is required to make a public record available.

Enforcing The Public Records Law:

A custodian who determines a record is not public, must provide written reasons, including the legal basis, within three working days. If a requester is denied a public record by a custodian or if five business days have passed since the initial request and the custodian has not responded, the requester may file a civil suit to enforce his right to access. the custodian bears the burden of proving that the record is not subject to disclosure because of either privacy rights or a specific exemption. The law requires the courts to act expeditiously in such suits and to render a decision “as soon as practicable.”

If the requester prevails in the suit, the court will award reasonable attorney’s fees and other costs. If the requester partially prevails, the court may, at its discretion, award reasonable attorney’s fees or an appropriate portion thereof. (The custodian and the public body may each be held liable for the payment of the requester’s attorney’s fees and other costs of litigation; however, the custodian cannot be held personally liable for these fees and costs if he acted on advice from a lawyer representing the public body.)

The court may also award the requester civil penalties of up to $100 for each day the custodian arbitrarily failed to give a written explanation of the reasons for denying the request. In addition, if the court finds that the custodian arbitrarily or capriciously withheld a public record, it may award actual damages proven by the requester to have resulted from the custodian’s action. (The custodian may be held personally liable for the actual damages unless his denial of the request was based on advice from a lawyer representing the public body.)

In addition to civil remedies, the law also provides criminal penalties. Anyone with custody or control of a public record who violates the law or hinders the inspection of a public record will be fined $100 to $1,000, or imprisoned for one to six months upon first conviction. For a subsequent conviction, the penalty is a fine of $250 to $2,000 or imprisonment from two to six months, or both.

Sample Letter to Request Public Records:

Dear Custodian of Public Record(s):

Pursuant to the Public Records Act of Louisiana, R.S. 44:1 et seq., I/we request the following public records be made available for inspection and/or copying:

[List either specific document(s) you are requesting or if you don’t know, describe the information you are requesting as specifically as possible.]

Under the provisions of R.S. 44:32, if you raise a question as to whether the record requested is a public record, you are required to notify in writing the person making the request of your determination and the reasons, including the legal basis, therefor. Said notice shall be made within three days of the receipt of the request, exclusive of Saturdays, Sundays, and legal public holidays.

Under the provisions of R.S. 44:33, if the public record is not immediately available you are required to certify this in writing promptly, and in your certificate fix a day and hour within three days, exclusive of Saturdays, Sundays, and legal public holidays, for the exercise of the right granted in the Public Records Act.

Under R.S. 44:34, “If any public record applied for by any authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by this Chapter.”

If you are invoking R.S. 44:34 to deny this request, please answer the following questions in detail.

1. Is a copy of the requested public record usually located in your office?

2. Why is your copy of the requested public record absent from your office?

3. Where is your copy of the requested public record?

4. Who has received your copy of the requested public record?

5. How and from whom did the present custodian gain control of your copy of the requested public record?

6. What was the exact time your copy of the requested public record was taken from your custody and control?

7. When will your copy of the requested public record be returned to your office?

8. Is there any other public official who has a copy of the requested public record?

9. State the name or names of anyone who has a copy of the requested public record?

10. State the location(s) where the requested public record can be viewed.

11. State the hours and dates when the requested public record can be viewed.

Penalties for violating the Public Records Act include criminal prosecution.

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Jindal consistent on transparency: reveals little, redacts contract amount. Is ACS the secret DHH contractor?

Posted in Governor's Office, Health Care, House, Senate, Legislature, Legislators, OGB, Office of Group Benefits, ORM, Office of Risk Management, Public Records, Transparency on June 8, 2011| 2 Comments »

When attorneys for the Louisiana Department of Health and Hospitals last week refused to disclose the name of the firm awarded a multi-million-dollar contract, it wasn’t the first time the Jindal administration has withheld key information normally considered to be public record.

There is, of course, the infamous Chaffe Report prepared by Chaffe and Associates of New Orleans in March under a $49,999.99 contract to conduct a quickie financial assessment of the Office of Group Benefits so that Gov. Bobby Jindal could factor the information into his executive budget submitted on March 19.

Contents of that report, however, were not included in the executive budget, leading many to believe the report did not provide data that the administration wanted to hear. Refusal by Commissioner of Administration Paul Rainwater to release the report to legislators after first promising he would do so also fueled speculation that the administration was not satisfied with the report’s recommendations.

But even before that, the administration which touts itself at every opportunity as the “most transparent” and “most ethical, most accountable” administration in Louisiana history, has shrouded its contractual and financial machinations in a cloak of secrecy.

In 2009, DHH entered into a contract with ACS State Healthcare, a subsidiary of Xerox. That contract was to have run from July 1, 2009 through Dec. 31, 2009. It called for ACS to provide information and eligibility screening to individuals seeking services through the DHH Office of Aging and Adult Services (OAAS). The contract also called for ACS to provide assessment and care planning to individuals seeking and receiving long term care and personal care services, and to operate a telephone hotline for the office.

A copy of the contract is contained on the DHH web page but the amount of the contract and monthly payment terms are redacted, or blacked out. No reason was provided for censoring the contract amount in the document. There certainly no legal basis for the action.

An online search turned up the same contract information in another document, however, and while the contract number (679532) was the same on each document, the dates of the contract were not.

What began as a six-month contract turned into two years (July 1, 2009 through June 30, 2011) and the contract amount is $20 million. It has since been renewed at a higher contract amount.

ACS is one of four firms that submitted proposals for the most recent (but anonymous) DHH contract, expected to go for something in the neighborhood of at least $34 million. That’s what it now costs the state to operate its Medicaid Management Information System. It’s one of the nicest neighborhoods in the state, contractually speaking.

Other firms submitting proposals were HP Enterprise Services, Molina Medicaid Solutions, and CNSI.

DHH Secretary Bruce Greenstein served as vice president of Health Care for CNSI from June 2005 to September 2006, leading some to believe that CNSI will be named as the contractor. Greenstein said he took himself out of the selection process because of his past connection to the company.

LouisianaVoice, however, isn’t buying into conventional wisdom. To choose CNSI would simply be too obvious. We’re going with ACS—for eight reasons. That’s eight as in six contracts totaling $148.3 million and two contributions of $5,000 each to Jindal from ACS.

Besides that $20 million contract already alluded to, there is another contract with OAAS (July 1, 2011through June 30, 2014), which is simply a renewal of the present contract, for $26.6 million.

Other contracts include:

• $74.5 million with the Division of Administration (DOA), Office of Community Development that runs from Mar. 27, 2009 through Mar. 26, 2012 to assist hurricane damaged parishes recover rental units;

• $14 million with the Department of Children and Family Services from July 1, 2010 through June 30, 2016 to prepare ad-hoc reports;

• $7.2 million to provide management services to several DHH programs, including Community CARE, KidMed, and long term personal care;

• $6 million with the Office for Coastal Restoration for environmental science consulting services.

The latter two contracts each ran from July 1, 2009 through June 30, 2010.

The decision by DHH to withhold the identity of the contractor who, in all probability, will be handling claims processing and information systems for the state’s $6.6 billion Medicaid health insurance program for the indigent, remains unclear.

Former DHH Secretary David Hood said the decision sounded like an administrative one to him. “I’m not aware of any provision in the law that prevents release of a name,” he said.

Likewise, Sen. Willie Mount, chairperson of the Senate Health Committee, calling the DHH interpretation “weird,” said the law cited by DHH attorneys does not indicate to her that the selection, once made, cannot be announced. “If you have already made the decision, why can’t you disclose it?” she asked.

She and Hood agreed that springing the name of the successful bidder on legislators at a public hearing would give committees no time for vetting the selection.

When F.A. Richard was chosen as the successful bidder to take over the state’s Office of Risk Management (ORM) in March 2010, not only was the announcement made before legislative approval, the announcement was actually made before (ORM) employees were told.

The refusal to divulge the identity of the contractor, the contents of the Chaffe report, and the amount of the ACS $20 million contract with DHH are consistent with the refusals by the Louisiana Office of Economic Development and DOA to provide information required by state statute to the Legislative Auditor.

If nothing else during his first term of office, the Jindal administration has shown beyond any doubt that it is unwavering in its resolve to flaunt its peculiar brand of transparency.

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Kipper out, Goldman Sachs back, Rainwater breaks word, Chaffe Report says bad deal, & transparency now opaque

Posted in Contract, Contracts, Governor's Office, House, Senate, Legislature, Legislators, OGB, Office of Group Benefits, Politicians, Privatization, Public Records, Transparency on June 6, 2011| 22 Comments »

BATON ROUGE (CNS)—Paul Rainwater is welshing on a promise, Scott Kipper is out as the CEO of the Office of Group Benefits (OGB), Goldman Sachs is back in the mix, the Chaffe report on the privatization of OGB doesn’t say what the administration wanted to hear, and OGB employees have been placed under a gag order.

LouisianaVoice learned that, in a nutshell, is what has transpired only days after Rainwater promised the Senate and Governmental Affairs Committee on Tuesday that committee member Sen. Karen Carter Peterson (D-New Orleans) would be provided a copy of a report done by Chaffe & Associates of New Orleans.

The most bizarre of a series of bizarre developments in the ongoing saga of Jindal’s efforts to privatize the agency that provides health coverage for more than 250,000 state employees, retirees and dependents is the apparent decision to take Kipper out of the decision-making loop until after adjournment of the current legislative session whereupon he will resign.

Deputy Commissioner of Administration Mark Brady and Kipper became involved in a standoff on Thursday after Kipper defied instructions to go back on Rainwater’s promise to make the Chaffe report available to legislators, according to sources.

The latest developments have prompted immediate reaction from State Sen. D.A. “Butch” Gautreaux (D-Morgan City), chairman of the Senate Retirement Committee.

“I intend to submit a joint resolution in the Senate on Monday or Tuesday urging Gov. Jindal not to privatize the Office of Group Benefits,” Gautreaux said Sunday. He said if the Senate approves his resolution it would go to the House for concurrence.

A resolution, as opposed to an actual bill, has no effect of law. Instead, its purpose would be to display a united front on a particular issue. But Gautreaux said he is also working on other action that might be legally binding.

He said the Senate legal staff is looking into a possible course of legislative action to block efforts by Jindal to sale or privatize OGB. He did not specify what type of action he is planning to block the administration.

Chaffe was awarded a $49,999.99 contract to do its report, apparently in an effort to develop figures in time for Jindal’s proposed state budget that was submitted on March 19. The contract amount was one penny less than the amount that would have required approval by the Office of Contractual Review, giving the appearance that Jindal was attempting to circumvent contract regulations.

Rainwater also assured the committee that the Chaffe report merely “validated” information that the Division of Administration (DOA) already had, thanks to Goldman Sachs, the Wall Street banking firm that assisted in the drafting of the original Request for Proposals (RFP) for a financial analyst to conduct a financial assessment of OGB and to help market the agency to potential buyers.

Rainwater may have fudged a bit in telling the committee during that same hearing that the report contained no significant information. It was learned Friday that the Chaffe report indicated the only advantage to privatizing OGB would be if the buyer retained the entire agency surplus of $500 million.

Some might consider that significant, especially in light that Rainwater first said the surplus would be attractive to a buyer but then denied the agency was for sale. Instead, he said the administration was simply seeking a third party administrator for the agency’s Preferred Provider Operation. He later added that the agency’s HMO, presently administered by Blue Cross/Blue Shield, might be included in the RFP.

Sen. Ed Murray (D-New Orleans) had posed the very scenario contained in the report last Tuesday when he asked why Kipper had not been provided a copy of the report. “What if that report says privatizing Group Benefits is not a good idea?” he asked. Kipper was provided a copy of the report following the hearing.

Rainwater, through Deputy Commissioner of Administration Mark Brady, instructed Kipper two days after Tuesday’s committee meeting to give the Chaffe report to no one, “not even legislators,” according to DOA sources.

Rainwater may have had his change of heart as a result of persistence on the part of LouisianaVoice, which had been refused access to the report on four separate occasions prior to Tuesday. The first three times, Rainwater’s office simply said there was no report. When it became known that DOA received the report on May 25, DOA attorney Paul Holmes responded to a fourth request that the report was exempt from the public records law.

When Rainwater promised the report would be made available to Peterson, however, LouisianaVoice immediately fired off a fifth request for the report under the state’s Public Records Statute.

When Brady instructed Kipper to hold the report back, Kipper balked, saying that Rainwater had made a promise in an open committee meeting. Kipper even offered to resign.

At that, Brady made a brief telephone call, and then informed Kipper that his nomination for confirmation as OGB CEO would be withdrawn and that Kipper would remain on the job until June 24, the day after the current legislative session adjourns at which time he would tender his resignation.

Kipper was appointed to the OGB position on April 15, the same day his predecessor, Tommy Teague, was fired for a “lack of leadership,” according to Rainwater. Teague, in five years at the helm of OGB, had taken the agency from a $60 million deficit to a $500 million surplus.

Rainwater now apparently has found Kipper lacking in leadership, or more accurately perhaps, followship. Kipper previously had worked for the Louisiana Department of Insurance and prior to that, worked for insurance regulatory agencies in several other states.

Kipper will be out of the office Wednesday, Thursday, and Friday on vacation, a fact that further irritated Gautreaux, who said he does not like the timing of Kipper’s trip. “I am concerned and upset about the lack of answers from the administration and I particularly don’t like the idea of Mr. Kipper leaving the state at such a critical time,” he said. The deadline for proposals from financial advisors to conduct a financial assessment of OGB is Monday with selection of the contractor scheduled for June 15.

“I will instruct my staff to attempt to contact Mr. Kipper and have him call me. I want him to answer questions and I will keep attempting to reach him every day,” Gautreaux said.

LouisianaVoice also has learned that Goldman Sachs is back in the picture and is one of four companies which have indicated an interest in submitting proposals on the financial assessment project. The deadline for proposals is Monday with selection and notification of a contract award scheduled for June 15.

When Goldman Sachs, which assisted in drafting the original RFP was subsequently the only one to submit a proposal, Goldman Sachs withdrew after an impasse was reached over the company’s insistence on indemnification against any future litigation.

The proposed privatization has met with opposition from several different fronts. The most significant objection came from the Louisiana District Judges Association which adopted a unanimous resolution in opposition to the privatization at its annual spring judges’ conference in Lafayette on April 7.

Legislators also have received hundreds of phone calls, emails and letters as well, virtually all in opposition to the OGB privatization.

All this comes at a time when the Senate and Governmental Affairs Committee still must make its recommendation on confirmation of Rainwater, Brady, and ostensibly, Kipper to the full Senate. The Senate would then have to approve each of the Jindal appointees by simple majority votes.

Anyone who watched the debacle unfold at the Senate and Governmental Affairs Committee confirmation hearings On May 31 saw the callous manner in which Rainwater allowed Kipper to be hammered by committee members for his evasive answers, most likely at the behest of Rainwater himself. Friday’s action by Rainwater was merely the crowning display of arrogance that seems to have permeated the Jindal administration from the top down.

As bad as that performance was, the beginning of the end for Kipper most probably occurred on May 10. Kipper, testifying before the Senate Insurance Committee, was asked by Sen. Eric LaFleur (D-Ville Platte) how many OGB employees he would cut if OGB was not privatized.

“Let’s assume this RFP doesn’t go anywhere and we’re right back where we are right now, who…how many people would you cut from OGB.”

“If we continue to operate as we do now, there would be no significant cuts,” Kipper responded, visibly upsetting Rainwater seated next to him. “There’s not a lot of excess now,” Kipper said. Rainwater has insisted that the agency needs to cut at least 149 positions.

Now the question must be whether or not Kipper will have the courage to step up to the plate on behalf of his OGB employees, half of whom could lose their jobs if the agency is privatized, and make the contents of the Chaffe report public.

Or will he choose instead to protect his career and sacrifice his integrity by going quietly into the night?

He could refuse to resign and force the administration’s hand. In that event, whatever course of action Rainwater would take almost certainly would prove embarrassing and leave Jindal with egg on his face. In the event Rainwater and Brady end up firing Kipper, what would that say about the administration’s vetting of its choices to run OGB?

Firing two CEOs of OGB within six weeks, all in the middle of attempts to privatize such a large agency would not look good under any circumstances.

It’s a call only Kipper can make.

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