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Archive for the ‘Transparency’ Category

There is an interesting story in today’s Baton Rouge Advocate (click HERE to read the story) about former Secretary of State Tom Schedler.

It seems that in addition to being forced from office by his settlement of a sexual harassment lawsuit, his successor, Kyle Ardoin, diverted $90,000 in state funds earmarked for computer upgrades to pay Schedler’s portion of the settlement.

That’s questionable use of public funds by practically any definition I know but beyond that little indiscretion lies a more fundamental question and that is just why was the state on the hook for the bulk of the payout for his behavior in the first place?

Schedler resigned in May of this year in the wake of accusations that he had sexually harassed a female employee for years.

The woman filed suit against Schedler and the state and the case was settled in August for $167,500, plus another $35,000 in attorney fees.

Of that $202,500 total, Schedler personally paid only $18,425 with state taxpayers picking the remaining $184,075–$90,450 covered by the secretary of state’s office and $93,625 by the Office of Risk Management, the state office that insures all state agencies in cases of legal liability.

But why would taxpayers be called upon to foot the bill for nearly $185,000 for personal actions committed by Schedler?

That was the question posed by a reader who said, “We need somebody to pass a law that anybody settling a sexual harassment case related to their employment with the state has to pay ALL of it from their own pockets. If Schedler wasn’t 100 percent responsible for this, who was, the state? And who, in this case, is the state?

Good questions all and an observation that cuts the heart of the legal issue.

To our reader’s advocacy that a law needs to be passed, he’s correct—except the law is already in place. It’s just not applied by judges who preside over these cases.

There is even a legal term (Latin, what else?) that addresses this very case.

RESPONDEAT SUPERIOR is the Latin phrase for “Let the master answer.” While it is an English Common Law doctrine (Louisiana’s laws are based on the Napoleonic Code), it would still apply in Schedler’s—and others’—cases if only the judges would apply the principle.

Established in the 17th century, the doctrine was adopted in this country and has been broadly applied in agency law. Literally, Respondeat Superior means the employer (in this case, the state) is liable for the injuries caused by an employee who is working within the scope of his employment relationship (emphasis mine). The person who does the work for the employer is the agent and the theory behind the law says the principal (employer, or agency) controls the agent’s behavior and must then assume some responsibility for the agent’s actions.

It means that if, as a state employee, your supervisor or legal counsel directed or advised you to do something later determined to be illegal, then the state would be liable for any fines, courts costs, etc. If, however, you did something illegal at work that was not work-related (harassment or assault of a subordinate, stealing from the coke machine, extortion, etc.), then you and you alone should be held liable for any damages imposed. If, the first case, the court had imposed a $50,000 fine, the Office of Risk Management would be responsible for paying the penalty. In the second case, if you were fined (whatever amount), the full responsibility for payment should fall upon you because what you did was not job-related, or within the scope and authority of your job responsibilities.

The question then becomes was the employee (Schedler) acting within the scope of employment during his off-the-rails behavior. The answer, of course, is certainly not.

That is the sticking point here and, in a case involving LouisianaVoice a few years back. We sued Commissioner of Administration Kristy Nichols over her failure to provide public records in the time prescribed by law. LouisianaVoice won the case and Nichols was personally assessed financial penalties. But she appealed, lost and eventually settled with LouisianaVoice. But the state paid for all her attorney fees at the state and appeal court levels as well as for the settlement itself.

The judge held her personally liable because she did not rely on the advice of the DOA legal counsel in dragging out her response to our records request. She was not, the court deemed, acting “within the scope of her employment” by delaying production of the records. Still, when push came to shove, it was the state, i.e. taxpayers, that paid in the end.

Same with Schedler. Sexual harassment certainly is never within the scope of anyone’s employment. Therefore, what Schedler did, he did as a freelancer, not as part of his duties as an employee (or in this case, the very head of the agency). Accordingly, he should have been held personally liable for all damages and legal costs.

That he was not speaks to the inexcusable laxity exercised by the court system in this case. This was the ideal chance for the judiciary to send a clear message to public servants—and employees in the private sector—that acting outside the boundaries of their job descriptions has consequences.

Sadly, that opportunity was missed.

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A state district court last week knocked down action taken by the Vermilion Parish School Board for violations of the state’s Open Meetings Law. In what must surely be a first, I find myself in agreement with Attorney General Jeff Landry on the whole affair.

Suffice it to say, however, that Landry waited until there was a judicial ruling to take his courageous stand, a ruling 10 months in the making, while LouisianaVoice took a similar position on the removal of a teacher from a board meeting immediately.

For that matter, why the hell did it take 15th Judicial District Court Judge David Smith 10 months to issue a ruling on a matter that is supposed to be fast-tracked: the issue of public meetings of governmental bodies? To take 10 months to decide what was obviously a violation of state law is somewhat ludicrous.

Be that as it may, Smith not only ruled the school board violated the Open Meetings Law by having a teacher, Deyshia Hargrave, a Kaplan middle school English teacher, arrested and removed from the meeting because she questioned the board action of awarding Superintendent Jerome Puyau a $30,000 raise, from $110,190 to $140,188, while teachers have gone years without a pay increase.

Puyau, in an interview with a Lafayette television station, said, “By the time the teacher stood up in the audience to the time she was at the door, it was 53 seconds. During that 53 seconds, she was asked to sit multiple times, the gavel struck multiple times.”

Yes, she was asked to sit and yes, the gavel was struck multiple times in a desperate effort to keep Hargrave from further publicly embarrassing the board and Puyau. When the raise for Puyau came up on the agenda, Hargrave, the parish’s 2015-16 Teacher of the Year, attempted to ask how the board could award Puyau a raise “when you’re basically taking from the teachers.”

Board President ANTHONY HARGRAVE, an Abbeville attorney who should have known better, rapped his gavel while informing Hargrave she was not on the agenda and the item being discussed was the superintendent’s contract.

Hargrave was quick to point out that she was addressing the very issue the board was considering, his gavel-rapping notwithstanding. “This directly speaks to what you’re voting on,” Hargrave said as a city marshal moved in to slap handcuffs on her and lead her from the meeting.

To view the complete video, click HERE.

The video prompted a flood of outrage from throughout the country. News organizations, from the Charlotte Observer, to The Washington Post, to The New York Times, to US News & World Report, to NPR, to NBC, to the La Crosse (Wisc.) Tribune, and even the Baton Rouge Tiger Droppings picked up on the school board’s action.

Meanwhile, Fontana, referring to Hargrave as “the poor little lady,” said, “If a teacher has the authority to send a student, who is acting up and she can’t control, out of the classroom to the principal’s office, under our policy we have the same rules.” Apparently, Fontana believed he could treat teachers as children and that getting arrested is the equivalent to being sent to the principal’s office.

And perhaps Fontana, after 25 years on the board, should have retired before deciding he was the final authority on open meetings and freedom of speech First Amendment rights.

And while Judge Smith took his time in issuing his ruling, he did take it to its ultimate conclusion in negating the school board’s approval of Puyau’s contract and his $30,000 raise—because the action was taken in what Smith said was a meeting held in violation of the Open Meetings Law.

Puyau, obviously feeling he had been grievously wronged by the ruling (never mind the manner in which the board treated Hargrave—one of its teachers, no less), told Lafayette TV station KATC reporter Chris Wetly that he would appeal the decision.

“It has ruined myself and my family,” he sniffed. “It has broken me personally. It has changed me as a person…to understand that politics is ugly and they (whoever “they” is) will do anything they can to get rid of me as Superintendent.”

Hey, Puyau, trying getting arrested, being handcuffed, and led out a public meeting—for simply exercising your First Amendment right of free speech. Then you can talk about your life being “ruined” and your life “changed.”

And of course, there is Landry, always ready and willing to pick the low-hanging fruit. Here’s the headline from his news release on Monday:

Vermilion Ruling A Victory for Teachers, Public Declares Jeff Landry
AG Landry Pledges Continued Enforcement of Open Meetings Law 

“I applaud Judge Smith for remedying this injustice,” Landry said of the ruling, adding that Hargrave and her fellow teachers, “who have not received a pay increase in many years despite growing class sizes, should have absolutely been heard.”

Of course, that was an easy call to make for Landry, ever the politician on the prowl for votes wherever and whenever he can find them. “And I pledge to continue diligent enforcement of our Open Meetings Law,” he said.

That’s a curious “pledge” for him to make. The Louisiana Constitution prohibits his intervention in parish affairs unless specifically requested to do so by the local district attorney. And as attorney general, he represents state boards, commissions, and agencies, meaning he is mandated to protect their interest, not ours. That means that in litigation over open meetings or public records, rather than enforcing the law, he defends state boards, commissions and agencies.

As ample illustration of that important distinction, observant readers will note that while LouisianaVoice WEIGHED IN on the controversy immediately, Landry, once a ruling had been made, had an opportunity to characteristically grab the spotlight with his news release. Prior to Judge Smith’s ruling, however, he had absolutely zero to say about the matter.

Nothing.

Nil.

Zilch.

So much for “diligent enforcement.”

 

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On Monday (Nov. 13), Public Service Commissioner Foster Campbell issued a glowing PRESS RELEASE in which he announced what he described as a project to provide high-speed internet service to more than 54,000 homes and businesses in the 24-parish PSC District 5.

Yet, only two months earlier, Campbell had appeared before the Claiborne Parish Police Jury to publicly trash a proposal by Claiborne Electric Cooperative to provide even faster and more comprehensive internet service to an estimated 65,000 homes and businesses in its five-parish service area—at a comparable customer cost.

Campbell, an Elm Grove populist Democrat who lost to John Kennedy in the 2016 U.S. Senate race, who lost to Bobby Jindal in the 2007 governor’s election and who three times ran unsuccessfully for the U.S. House from Louisiana’s 4th congressional district, seems to be running for something again but there don’t seem to be any other offices for him to seek.

In September, he presented his timeline of events concerning the approval process for Claiborne’s proposed high-speed broad internet service. One cooperative member who was present for that performance described Campbell’s remarks as “hyperbole,” adding that many of Foster’s claims “were outright wrong.”

“Then when he had his say, for which he caught a lot of flak from citizens in attendance, he promptly left as (Claiborne CEO) Mark Brown was given the opportunity to present his side of the situation,” the member said, pointing out that he is neither an employee nor a board member of Claiborne Electric. He asked that his name not be used.

“There was a marked difference in the points of view with Mr. Brown’s position being a lot more straightforward and fact-based,” he said. “That Campbell made his accusations and factually incorrect statements and then left without hearing Mr. Brown’s EXPLANATION was one of the rudest displays I’ve seen in a public forum.”

In his press release, Campbell said the “Connect America” program of the Federal Communications Commission (FCC) “is helping fiber, wireless and satellite internet providers meet the need for broadband service in unserved or underserved areas of North Louisiana.”

He said that FCC records indicate that 54,580 homes and businesses in his PSC district are eligible for high-speed internet service funded by Connect America.

That represents just a fraction of almost a million people—325,000 households—in the 24 parishes.

What Campbell describes as “high speed” internet is a download speed of 10 megabytes per second and an upload speed of one megabyte per second at an estimated cost of $60 per month per customer.

Claiborne’s proposal calls for the same $60 monthly rate for 50 megabytes to one gigabyte of service for 10,000 more customers in the five-parishes of Bienville, Claiborne, Lincoln, Union and Webster than for Campbell’s entire 24 parish district.

Campbell claims that if the Claiborne project fails, customers would be on the hook for the costs, ignoring the fact that the proposal calls for a construction phase-in that would allow the project to be scrapped if it did not meet projections.

“Foster Campbell ignores the fact the 69 co-ops around the country have already done projects like that proposed by Claiborne and none of those have failed,” the Homer member said. “He also ignores that about 75 other co-ops around the country are in the process of starting fiber optic systems.”

(CLICK ON IMAGE TO ENLARGE)

Foster’s behavior is a strange reversal of traditional Democratic support for electric cooperatives begun under the administration of Franklin Roosevelt and championed by such notables as Lyndon Johnson. In fact, Foster’s rhetoric is reminiscent of Bobby Jindal’s REJECTION of that $80 million Commerce Department grant to install high-speed broadband internet for Louisiana’s rural parishes back in 2011.

In that case, Jindal was in lockstep with the AMERICAN LEGISLATIVE EXCHANGE COUNCIL (ALEC) which in 2010 had staked out its opposition to federal encroachment onto the turf of private business despite the fact that private business had been painfully slow in responding to the needs of rural America dating back to the early days of electric power and telephone service.

And therefore, since AT&T was a member of ALEC and since AT&T was opposed to the grant, therefore, so was Jindal. In Jindal’s case, AT&T had also made a six-figure contribution to his wife’s charitable foundation, giving Jindal another reason to take up the ALEC banner.

AT&T, in fact, even took the City of Lafayette to court to fight the city’s efforts to construct its own fiber optic high speed broadband internet system. It was a costly fight for both sides but Lafayette eventually emerged victorious despite AT&T’s best efforts.

Foster Campbell, in his press release noted that AT&T would be responsible for $17.2 million, or 79 percent of the FCC-funded broadband expansion into PSC District 5 while CenturyLink of Monroe would have responsibility for $3.9 million (18 percent) of the cost and satellite provider ViaSat would spend $1.5 million (3 percent).

So, why is Campbell now sounding so downright Jindalesque in his opposition to Claiborne Electric?

For that answer, one would have to take the advice FBI agent Mark Felt, aka Deep Throat, gave to reporter Bob Woodward during the Washington Post’s investigation of Nixon and Watergate:

Follow the money.

  • CenturyLink made two $1,000 contributions to Campbell’s various state campaign fund in 2011 and 2012, according to Louisiana Ethics Commission records.
  • Glen F. Post, III, of Farmerville in Union Parish, is President of CenturyLink. He personally contributed $11,500 to Campbell between 2003 and 2014.
  • Stacy Goff is Executive Vice-President of CenturyLink. He chipped in another $500 for Campbell in 2005.
  • AT&T gave $10,000 to Campbell in campaign contributions between 2003 and 2010.
  • William G. “Bud” Courson and James W. Nickel of Baton Rouge are registered lobbyists for AT&T. Their firm, Courson Nickel, LLC of Baton Rouge, contributed $2,000 to Campbell from 2002 to 2014.

CENTURYTEL

COURSON NICKEL

Post contributed another $3,000 to Campbell’s unsuccessful Senate campaign in 2016 and Nickel and Courson also contributed $500 and $1,000, respectively, to that campaign, federal campaign finance records show.

Altogether, Foster Campbell had at least 30,500 reasons to oppose Claiborne Electric’s proposal to provide high speed broadband internet service to its members.

Because he indisputably had skin in the game, he should have recused himself from the discussion in order to avoid any conflict of interests.

Therein lies the problem of regulators accepting contributions from those they regulate.

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What in the world’s going on in the sleepy town of Mansfield up in DeSoto Parish?

Usually, the political shenanigans are kept pretty much in-house, meaning what happens here generally stays here. We’re family here, after all, and the family doesn’t air its dirty laundry.

The normal procedure is for everyone to just shake their heads and to go on about their business, secure in the knowledge that this is Louisiana and that’s just the way it is. Always has been, always will be.

But occasionally, these dirty little secrets burst open like a festering sore and they become a little more difficult to ignore.

Thanks to the diligence of the Legislative Auditor’s office in Baton Rouge, that’s what has happened in the DeSoto Parish Sheriff’s Office over the past four years.

What began as an investigative audit in April 2014 that revealed a former deputy’s private business ran more than 41,500 BACKGROUND CHECKS through the sheriff’s office during an 11-month period between April 1, 2012, and February 28, 2013, eventually led to the RESIGNATION of long-time sheriff Rodney Arbuckle in March of this year. Arbuckle attributed his resignation to health problems encountered by one of his grandchildren.

And the saga continues.

State auditors are back for yet another investigative audit. Arbuckle’s successor, Jayson Richardson is resisting a subpoena by the auditor’s office and he is taking his fight into the courtroom.

State Auditor Daryl Purpera on June 13 had the subpoena served on Richardson. It sought to compel Richardson to produce “copies of the unredacted personnel files” of the sheriff and 12 of his deputies.

“The designated personnel files contain privileged and Constitutionally-protected private information,” says a PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF filed by attorney James Sterritt of the prominent Shreveport law firm of Cook, Yancey, King & Galloway. “Under the circumstances, forcing the sheriff to comply with the subpoena would cause the sheriff, who is charged with enforcing the law, to instead break the law by disregarding legally-protected privacy rights.”

Sterritt also challenged the legality of the subpoena which he says “was not issued under authority of any court.” Instead, he said, it is a “Legislative Subpoena Duces Tecum” and which was not reviewed or evaluated by a judge. “Instead, it was signed by the Louisiana Legislative Auditor (Purpera) and the Chairwoman of (the) Louisiana Legislative Audit Advisory Council (State Rep. Julie Stokes)

Not so, says Purpera. “We will be glad to argue this in court,” he said. “We have the power to subpoena records (and) we’ve been issuing subpoenas for the last 34 years that I know of.”

Purpera said he would seek to move the matter to the 19th Judicial District Court in Baton Rouge.

Sterritt, in typical legal fashion, included case citations in his motion in the hopes that something might stick.

“As an accommodation, the sheriff offered to remove or redact the protected information,” Sterritt said. “But the auditor, through its representatives and employees, refused. The only accommodation that the auditor would agree to was that medical records could be removed while the auditor supervised the removal of those records.”

But Richardson, aka James Samuel Baldwin (I’ll explain that momentarily), countered through Sterritt that “no law enforcement officer, no district attorney, no attorney general, no inspector general, and no other governmental official has the authority to obtain subpoenas without just, reasonable, or probable cause. There is no law that authorizes the auditor to do what others cannot.

“The affidavit used to obtain the subpoena is defective,” Richardson/Baldwin argues. “It contains conclusory, unsupportable legal arguments and opinions—not facts. It contains mischaracterization and/or misrepresentation of the auditor’s authority. It omits relative matters. It would not be sufficient to establish the foundation necessary for a subpoena issued by a judicial officer.”

Besides Richardson, personnel records sought include those for the following employees:

  • Monica Cason;
  • Black Woodward;
  • Karen Miller;
  • Robert Davidson;
  • Chato Atkins;
  • Kenneth Gingles;
  • Gregory Perry;
  • Stephanie White;
  • Patrick Jones;
  • Donnie Barber;
  • Carolyn Davis, and
  • Luther Butler.

And just for good measure, Sterritt said the subpoena is “overly broad and creates an unreasonable burden and unnecessary expense. The proposed production will be unduly time-consuming and expensive. It will not result in a legally-justifiable use of public resources.”

It took Sterritt six pages to say all that. If he gets paid by the word, he did quite well for himself and his firm.

State Judge Charles B. Adams of the 42nd Judicial District signed a protective order and a rule to show cause and scheduled a hearing for today (Thursday, June 21) at 9:30 a.m.

Jennifer Shaye, an attorney for the auditor’s office, was dispatched to Mansfield to argue on behalf of the state. LouisianaVoice will update this story as soon as it is learned whether or not Judge Adams rules or takes the matter under advisement.

Meanwhile, about the apparent confusion over the sheriff’s real name:

When Richardson divorced his first wife several years ago, it was revealed by his now ex-wife that when they were married, his legal name was James Samuel Baldwin but on May 9, 2005, he had his name legally changed to Jayson Ray Richardson but neglected to take steps to change his wife’s name.

No reason was given for the name change.

Nor has there been any explanation for an apparent discrepancy in Baldwin/Richardson’s announced promotion to Chief Deputy only months before Arbuckle’s resignation as opposed to his official appointment a year earlier.

By letter of Dec. 20, 2016, Arbuckle informed the Secretary of State’s office, “This letter is to inform you that I am appointing Jayson Richardson as Chief Criminal Deputy of my office.” Accompanying that letter was Richardson’s OATH OF OFFICE, signed and notarized that same date.

But Arbuckle did not get around to announcing the promotion until his former chief deputy Horace Womack retired in December 2017, a full year later.

Somehow, it always seems appropriate to quote the late C.B. Forgotston:

“You can’t make this stuff up.”

 

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In the 2013-2014 school year, Louisiana ranked 34th out of 50 states and the District of Columbia with average teacher earnings of $49,067 per year.

Since then, Louisiana is the only state in either the top 10 or bottom 10 to experience a wage decrease. As a result, the state has tumbled 10 places to 44th (that’s 8th WORST) for teacher salaries.

But since 2013, you’ll be happy to know that 20 unclassified employees in the Louisiana Department of Education (LDOE), including the husband of a state senator and State Democratic Chair, who were already making in excess of $100,000 received raises averaging 27.2 percent, according to figures obtained by LouisianaVoice from the Louisiana Office of Civil Service.

Altogether, the 20 unclassified (that’s political appointees, for those who might not know) employees combined for raises totaling $534,600, an average increase of $26,730 each from 2013 to 2018.

Three others who were not employed in 2013 were on the payroll in 2015 had combined pay increases of $49,500, or 18.3 percent.

In all, the 23 individuals had their pay increased from a low of 10 percent for Manager Lisa French and Assistant Superintendent Kunjan Narechania to 61.5 percent for Liaison Officer Dana Talley and a staggering 85.7 percent for Director Shan Davis.

Even Dana Peterson, a Recovery School District (RSD) Administrator and the husband of State Democratic Party Chairperson Sen. Karen Carter Peterson of New Orleans, is along for the ride, having seen his salary increased from $125,000 per year in 2013 to $148,500 in 2018, a bump of 18.8 percent.

The RSD is scheduled to revert back to the control of the Orleans Parish School Board by July but LDOE still lists 94 UNCLASSIFIED EMPLOYEES unclassified employees assigned to various positions with the RSD.

There were seven employees (Davis, Jules Burk, Tiffany Delcour, Jessica Baghian, Bridget Devlin, Rebecca Kockler, and Dana Talley) who received increases of 36.6 percent or more from 2013 to 2018 while three more received raises of 29.4 percent (Laura Hawkins), 29.5 percent (Jan Sibley), and 29.8 percent (Jennifer Conway).

Two employees, Director Jill Slack and Executive Counsel Joan Hunt, might be somewhat offended at all that money flying around since they received raises of only 2 percent and 3.8 percent during that same five-year period. Their raises, however, were more in line with what state employees receive in the way of pay raises—when they get them. Raises for state classified (civil service) employees have been static for nearly a decade now.

For a look at the spreadsheet for LDOE unclassified employees’ pay raises, go HERE. (The salaries for 2013 and 2015 are given as bi-weekly salaries. To get the annual pay, multiply those numbers by 26 (the number of times state employees are paid each year).

 

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