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Archive for the ‘Transparency’ Category

Jindal hospital privatization plans just won’t go away; Baton Rouge attorney files appeal of Huey P. Long Hospital closure

Posted in Ethics, Fraud, Governor's Office, Health Care, Huey Long, Lawsuits, Layoffs, Legislature, Legislators, Privatization, Senate, Transparency on April 25, 2016| 12 Comments »

There’re few feelings worse than a hangover and when the hangover contains remnants of the eight-year drunjeb privatization binge of the Bobby Jindal administration, the pain is particularly excruciating. In this case, it’s the state hospital privatization fiasco that keeps on giving us the dry heaves.

It may not rank up there with the 50-page blank contract http://www.forward-now.com/2014/01/09/as-the-la-hospital-privatization-biomed-worms-turn/ but the less-than-transparent and most probably more than a little illegal closure of one hospital has prompted a Baton Rouge attorney to file an APPEAL with the First Circuit Court of Appeal in Baton Rouge. His appeal follows the State Civil Service Commission’s denial of his Civil Service appeal on behalf of eight employees who lost their jobs when the Huey P. Long Hospital in Pineville.

Arthur Smith III initially also represented Edwin Ray Parker, president of Council 17 of the American Federation of State, County and Municipal Employees (AFSCME), and Brad Ott, a public hospital patient from New Orleans. Upon being informed they had no standing in a civil service matter since they were not state employees, however, they requested that their claims be dismissed.

In all, some 200 employees lost their jobs when the Jindal administration shuttered the facility on June 30, 2014.

Ott and Parker initially sued the state as soon as the closure was approved, claiming legislators did not comply with the Louisiana State Constitution in authorizing Bobby Jindal to close the LSU-run hospital. A retired state judge sitting in for the presiding judge in the case, in a curious ruling noted that the Senate violated the open meetings law when the proposed legislation was heard by its Health and Welfare Committee and said the closure was unconstitutional—but nevertheless allowed the closure to go forward. http://www.nola.com/politics/index.ssf/2014/06/lsu_hospital_closure_ruled_unc.html

The open meetings law violation claim came into play when the Senate committee published a meeting notice two days before its hearing, with an agenda that did not include the hospital closure legislation. But on the afternoon prior to the meeting, a revised agenda was posted that included the legislation, a ploy most likely designed to blindside opponents of the closure by not giving them sufficient time to mount an organized opposition.

Judge Robert Downing said he made his ruling so that the matter would fast track a direct appeal to the State Supreme Court, which ultimately denied a stay order, thus allowing the closure. At the same time he sharply criticized Jindal for “turning down billions” of federal dollars through Medicaid Expansion—even as Jindal was (wink, wink) claiming the hospital closure would improve health care for the uninsured in the 16-parish area served by the hospital.

Smith filed his appeal with the First Circuit following the Civil Service Commission’s seven-page DENIAL of his civil service appeal issued on April 6.

State Civil Service Director Shannon Templet was quoted in the commission’s decision as saying a “lack of funds” was the reason for the layoff. That, of course, played directly into Jindal’s hands as he had been systematically starving health care for the indigent since long before he became governor—as Secretary of the Department of Health and Hospitals under former Gov. Mike Foster.

In his appeal, Smith argues that the Civil Service Commission erred in approving the cooperative endeavor agreement (CEA) pertaining to the medical center by failing to comply with the rules set forth by the Louisiana Supreme Court in Civil Service Commission v. City of New Orleans. http://caselaw.findlaw.com/la-supreme-court/1274405.html

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Two more members of LSPC quit over political contributions while pondering its investigation of LSTA for same offense

Posted in Campaign Contributions, Ethics, Governor's Office, Politicians, Public Records, State Police, Transparency on April 14, 2016| 5 Comments »

The second and third members of the Louisiana State Police Commission (LSPC) resigned Thursday in the wake of earlier reports by LouisianaVoice that they had contributed to political campaigns in violation of the Louisiana State Constitution.

Their resignations of William Goldring and commission Chairman Franklin Kyle came on the heels of a nine-page report prepared by Natchitoches attorney Taylor Townsend. Taylor was contracted by commission Executive Director Cathy Derbonne after LouisianaVoice and the Baton Rouge Advocate revealed that they and a third member, retired appellate court judge Freddie Pitcher, faced removal from the commission because of their political campaign contributions while sitting as commission members. http://theadvocate.com/news/15297801-173/three-members-of-louisiana-state-police-commission-may-be-ousted-over-campaign-contribution-issue

INVESTIGATIVE REPORT

Pitcher resigned several weeks ago prior to Taylor’s being contracted to prepare the report.

The violations of the prohibition against political activity was an even more volatile issue because the commission was debating whether or not to initiate an investigation of the Louisiana State Troopers’ Association (LSTA) over its laundering association money through its own executive director David Young. https://louisianavoice.com/2016/03/10/state-police-commission-members-probing-lsta-appear-to-have-committed-similar-campaign-contribution-violations/

In his report to Derbonne, Townsend noted that statements contained in his report were supported by public records maintained by the Louisiana Ethics Administration Program, the Louisiana Secretary of State, State Police Commission oaths, and the Federal Elections Commission—the same sources cited by LouisianaVoice.

Quoting from the Louisiana State Constitution, Townsend said, “Members of the State Police Commission and state police officers are expressly prohibited from engaging in political activity. More specifically, Section 47 provides that ‘No member of the commission and no state police officer in the classified service shall participate or engage in political activity…make or solicit contributions for any political party, faction, or candidate…except to exercise his right as a citizen to express his opinion privately…and to cast his vote as he desires.’”

Willful violation of the relative provisions, he said, “is a crime, a misdemeanor, punishable by a fine of not more than $500 or imprisonment for not more than six months, or both,” Townsend said.

“The integrity of the State Police Service requires your immediate action and attention,” he said in his conclusion. “The law, specifically the Louisiana Constitution…and State Police Commission Rule 14.2, are both clear: ‘Members of the State Police Commission are expressly prohibited from participating in political activity.’ The findings of fact outlined (in his report) clearly show evidence of multiple violations of the applicable law by Mr. Kyle and Mr. Goldring. As you know, the authority to remove members of the commission is invested in the Governor. Barring voluntary resignation by these members, I see no alternative but to ask the Governor to call a public hearing.”

At Thursday’s meeting it was learned that Kyle had submitted his resignation letter prior to the 9 a.m. meeting after reviewing an advance copy of the report. Goldring said through the brief meeting but submitted his resignation letter later on Thursday.

FRANKLIN KYLE RESIGNATION LETTER

In his letter, which was sent by email, Kyle said, “I was provided a copy of the report by Mr. Townsend last night regarding commissioners that (sic) have broken LSPC rules…

“Given this information, I think it proper to tender my resignation. Attached, please find a letter to the governor regarding such.”

Goldring wrote, “After reading Mr. Townsend’s legal interpretation of the rules and regulations for Louisiana State Police Commissioners, I respectfully have no issues with his interpretation. The work of the commission is extremely important and should not be distracted and, therefore, I believe it is in everyone’s best interest for me to resign immediately.”

GOLDRING RESIGNATION LETTER

Pitcher resigned by letter dated March 29. “Now that I am fully aware of the prohibition, I feel that I must step down as a commission member…” he wrote.

PITCHER CAMPAIGN CONTRIBUTIONS

With the resignations, the commission is far from finished with its work regarding the LSTA’s funneling nearly more than $45,000, including $10,000 each to Bobby Jindal and Gov. John Bel Edwards through Young to political candidates last year. Even though the LSTA is a private organization as opposed to a public entity, its membership is comprised of state troopers who, like the LSPC members, are prohibited from political activity.

Even with the resignations, the commission still has a quorum but will probably delay initiation of an investigation. Young and the LSTA are beyond the commission’s purview but it does have authority to conduct a probe of which members of the association made the decisions to reimburse Young for his contributions as well as the decision to endorse Edwards in last November’s runoff election between Edwards and U.S. Sen. David Vitter. Those responsible for the decisions would apparently be in violation of the constitution.

KYLE CONTRIBUTIONS

GOLDRING CONTRIBUTIONS

PITCHER CAMPAIGN CONTRIBUTIONS

 

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As clamor increases for access to public records, some, like Lafayette city marshal, starting to learn expensive lessons

Posted in Corruption, Elections, Ethics, Lawsuits, Legislature, Legislators, Politicians, Public Records, State Agencies, Transparency on April 8, 2016| 6 Comments »

Last of four-part series:

There are those isolated cases scattered across the legal landscape in which a citizen or member of the media goes to court and wins a public records case against a reticent public official but even those occasional victories in the interest of transparency are bittersweet at best.

It goes without saying anyone would rather win than lose; that’s a no-brainer. So prevailing in a case against an elected official or appointee bent on blocking the free flow of information always evokes a certain smug euphoria.

On the other hand, each victory in a public records lawsuit should prompt members of the media and governmental watchdogs alike to ask five basic questions:

  • Why was litigation necessitated in the first place?
  • Why aren’t officials more forthcoming with information?
  • Were they trying to hide something embarrassing or incriminating?
  • Or were they just being obstinate as a matter of general principle?
  • Was fighting disclosure worth the legal costs and the potential of fines for noncompliance—and even the possibility of criminal charges?

The IND, a Lafayette news organization has most likely asked each of those questions repeatedly in the case of Lafayette City Marshal Brian Pope and his determination to shield 588 pages of emails from Pope’s workstation at the Lafayette City Marshal’s office.

For his part, Pope must be dwelling on the final question: Was it worth it?

http://www.katc.com/story/30893257/independent-wins-public-records-suit-against-city-marshal

At issue is Pope’s alleged use of his office—and the city’s computer—to campaign for Lafayette Parish Sheriff candidate Chad Leger over his opponent in the October 2015 election, Mark Garber. Garber ultimately won that election.

But when The IND requested those emails, apparently withheld some records and deleted others that were nevertheless captured on the Lafayette City Government servers through which all emails to and from city departments are routed.

Fifteenth Judicial District Court Judge Jules Edwards on Dec. 14 issued an order enjoining Pope from withholding any requested records. The IND originally made its public records requests on Oct. 8 and again on Nov. 30 and on Jan. 4 of this year, Edwards ruled that Pope’s response was “woefully inadequate,” that his withholding of documents was “arbitrary,” and his failure to respond “unreasonable.” http://theind.com/article-22457-Judge-Marshal-Pope’s-response-still-‘woefully-inadequate’.html

By the time Judge Edwards was finished with Pope, the tally was nearly $100,000 in penalties (at $100 per day for each day Pope failed to respond to the requests, or $17,300), plus attorney and expert fees and court costs—and, get this: 173 hours (one hour for each day of non-compliance) of community service instructing government employees on public records law. Oh, the irony!

Just for good measure, Judge Edwards sentenced Pope to one month in jail for contempt of court, suspending all but seven days and reducing that to house arrest.

The judge’s ruling also held Pope personally responsible for all costs and penalties.

Former Lafayette City Attorney Mike Hebert testified during cross-examination that all email traffic “got routed through LCG (Lafayette City Government) servers, and thus is as much the property of LCG as it would be the marshal’s. As soon as we became custodians we became responsible for producing the records,” he added.

Pope, for his part, fell back on the tried and true “everybody does it” explanation for his using his office for political fundraising purposes. “I’m a political figure,” he said. “I can use my office for my campaign. My predecessor did it, too.” That argument apparently failed to impress Judge Edwards.

Edwards also came down hard on Pope when Pope showed up in court in uniform and armed with his handgun, both of which are contrary to Louisiana law regarding police appearing in court as defendants.

Edwards said that and his “everyone does it” defense provided “remarkable insight” into how Pope runs his office. http://www.theadvertiser.com/story/news/crime/2016/03/24/judge-sentences-lafayette-city-marshal-jail-contempt/82208738/

Appropriately enough, on April 1, Pope’s house arrest was postponed while he appeals his contempt conviction. http://theadvocate.com/news/acadiana/15361890-123/house-arrest-for-lafayette-city-marshal-brian-pope-postponed-during-appeal-in-public-records-case

The Lafayette case is one of the ugliest public records lawsuits in the state since the brouhaha over the LSU Board of Supervisors’ furtive selection of F. King Alexander as LSU President. But that doesn’t mean things can’t get nastier. With the explosion of Internet blogging generating more public records requests, any immovable objects (resistance or reluctance in complying) is certain to be met by the irresistible force (litigation).

Bloggers like Elliott Stonecipher, Jason France, and yours truly, along with citizens like James Finney, Barbara Ferguson, and Charles Hatfield, some members of the media, and legislators like State Rep. Jerome “Dee” Richard are going to keep pushing for more sunshine so long as there continues to be contracts with 50 blank pages or superficial “investigations” like the charade recently carried out by State Police in the Burl Cain and Angola State Penitentiary episode.

We are going to keep digging as long as we have officials attempting to sneak illegal retirement benefit increases into legislative bills during the closing minutes of legislative sessions. We will keep making public records requests into questionable methods of investigation and punishment carried out by autonomous boards and commissions like the State Dentistry Board and State Board of Medical Examiners. We will continue to ask questions when we observe a double standard in how we are expected to comport ourselves as citizens and how public officials are allowed to conduct themselves in their official capacities—be they agency heads, elected officials, regulatory boards and commissions or law enforcement agencies.

And when we encounter that immovable object, that resistance to transparency, we will continue to haul your butts into court until we are on a first-name basis with every judge in Baton Rouge. Reluctance or denial on your part will only strengthen the resolve on our part.

After all is said and done, we deserve two things from our government:

  • An even playing field where all live under and abide by the same rules;
  • The right to see, hear, and know that even the most obscure agency carries out its business in an upright, honest and fair manner.

We will accept nothing less.

And we shouldn’t have to sue someone to earn that right

 

 

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Why are public records laws enacted? Why don’t judges enforce laws? Perhaps Deshotels case will bring change

Posted in Corruption, Education, Ethics, Judges, Lawsuits, Media, Politicians, Public Records, State Agencies, Transparency on April 7, 2016| 9 Comments »

Third of four-part series:

Given the reluctance to impose meaningful fines in cases of blatant public records compliance violations, one has to wonder:

  • What is the purpose of going through the time consuming procedure of passing laws if they are not going to be enforced?
  • What is the purpose of a judge donning a robe and sitting on the bench if he/she has no intention of upholding so even the minimum penalty for violations of the law?
  • Is there some sort of unwritten agreement among certain judges and public officials that says judges must merely wink at violations and hand down only token penalties?

Louisiana laws, we can only assume, were enacted for a reason and that reason was to ensure strict compliance and to lay out proper punishment for violators. To that end, Louisiana Revised Statute (L.R.S.) 44:35 (E) (1) clearly says:

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

That’s certainly clear enough but L.R.S.) 44:35 (E) (2) then goes on to say:

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

LOUISIANA PUBLIC RECORDS ACT

We have already seen in earlier posts this week how judges, through some form of convoluted rationale, are able to substantially reduce that $100 per day fine to insignificant amounts and in at least one case, to nothing at all.

First there was the case of the Baton Rouge Advocate and the LSU Daily Reveille. The two publications sued the LSU Board of Supervisors over its refusal to provide a list of candidates for LSU President. They won and the district court judge awarded more than $50,000 in penalties calculated on the $100-a-day formula for non-compliance only to see the monetary award overturned and negated in full by the Louisiana First Circuit Court of Appeal.

Then came our own lawsuit against the Division of Administration and Commissioner Kristy Nichols. DOA delayed responses to numerous requests by LouisianaVoice for several months only to be hit with a penalty of only $800 plus court costs and attorney fees.

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

And in the case of Barbara Ferguson and Charles J. Hatfield and their lawsuit against the Department of Education on behalf of their non-profit research organization, Research on Reforms, the court’s ruling was even more egregious. Three full years of non-compliance came to 684 days by the plaintiffs’ estimation (we calculated the number to be closer to 745 days) and they requested the full application of the penalty of $100 per day, or $68,400 plus attorney fees ($29,779) and court costs ($3,121).

FERGUSON REQUESTED JUDGMENT

Baton Rouge District Judge William Morvant first denied the plaintiffs’ claim outright but was overturned by the First Circuit which remanded the case back to Morvant for the imposition of penalties. Morvant not only cut the attorney fees in half to $15,000, but he completely disregarded the penalties for DOE’s—and Morvant’s apparently—disregard of the law.

FIRST CIRCUIT RULING ON FERGUSON

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

So now comes Mike Deshotels and his public records lawsuit against veteran defendant John White and his Department of Education.

This one is pretty easy except for one minor snag:

Deshotels filed his lawsuit on April 10, 2015, after two months of back and forth communications between him and DOE failed to produce the requested Multi Stat report for all public schools in Louisiana which contained the actual total number of students enrolled in each grade.

MICHAEL DEHOTELS PETITION

Even though Deshotels never requested any personal information, DOE ultimately refused his request “because of their obligations to protect the personal information of the students pursuant to FERPA (Family Education Rights and Privacy Act),” according to Deshotel’s petition.

The case finally made its way to trial in Baton Rouge on Oct. 19, 2015, before 19th Judicial District Judge Todd Hernandez.

Hernandez broke with the pack when he held John White personally liable. More than that, he assessed White with attorney fees and court costs of $11,988.84. And then, applying the letter of the public records law he ordered the payment of $100 per day “from Feb. 16, 2015, until the requested records were produced.

DESHOTEL JUDGMENT

Despite his order, those records were not produced until more than five months later, when they were submitted along with a March 31, 2016, settlement offer. That additional delay brought the total cost, including attorney fees and court costs, to about $49,000, according to Deshotels’s Baton Rouge attorney J. Arthur Smith.

And Judge Hernandez, as if sending his own message, held John White personally liable, an indication that Hernandez had reason to believe White had withheld the records on his own volition and without the advice of legal counsel.

(Parenthetically, if more judges followed the example set by Hernandez, public officials might be more cognizant of the importance of complying with the law.)

Still White persisted in his state of denial. That March 31 settlement letter from DOE legal counsel G.M. Millet, Jr., was little more than an insult to Smith and Deshotels.

“After careful consideration, the Department of Education has decided to provide an unsuppressed copy of the October 2014 Multi-Stats Report to Michael Deshotels and to pay him $9,292.74 for attorney’s fees and litigation expenses pursuant to Judge Hernandez’s judgment,” the letter said.

SETTLEMENT OFFER

He then added the traditional legal verbiage that nevertheless appeared particularly absurd: “By complying with those portions of the judgment, in lieu of appeal, the Department is not admitting fault.” Not admitting fault? Really?

Millet also said that DOE planned to appeal the “portion of the judgement (sic) imposing fines against the Department for being arbitrary and capricious.”

Smith now says that the appeals have run, meaning the deadline has passed for White and DOE to appeal the judgment. Still, no payment has been made.

So Smith is now preparing to take matters to the next level.

He has prepared a Motion for Judgment Debtor Examination as the first step toward seizure of White’s assets, including his 2013 Infiniti and garnishment of his state wages.

In that motion, yet to be filed pending Hernandez’s ruling on a separate DOE motion, Smith asks “to examine John White, Defendant/Judgment Debtor and his income records, pay check stubs, W-2 forms, last year’s income tax returns, business papers, automobile titles and registration certificates (pink slips), records of accounts in banks and other financial institutions (checking and savings) on all matters pertaining to his income or property, in order that Plaintiff (Deshotels) may find means to execute the Judgment, and that the said Defendant (White) should be ordered to appear before this Honorable Court at such time as the Court assigns for said examination.”

MOTION FOR DEBTOR EXAMINATION

Now that should get someone’s attention, especially if Smith’s motion is granted.

If that’s what it takes to change the mindset of bureaucrats and elected officials, to hold them accountable to the laws of this state, to force them to cease furtive actions away from public observation, then so be it.

Tomorrow: Lafayette City Marshal Brian Pope has learned an expensive lesson for his refusal to make available 588 pages of emails Lafayette-based newspaper The Independent. Besides monetary penalties totaling almost $100,000, a state district judge tacked on seven days’ house arrest for contempt of court. That sentence has been postponed pending the outcome of Pope’s appeal of the conviction.

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

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

Second of four-part series:

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

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

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

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

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

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

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

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

FINNEY LAWSUIT

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

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

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

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

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

RESEARCH ON REFORMS LAWSUIT

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

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

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

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

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

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

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

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

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

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

In effect, it was none of our business.

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

FIRST CIRCUIT RULING ON FERGUSON

The decision by the three-judge panel was unanimous.

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

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

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

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

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

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

FERGUSON REQUESTED JUDGMENT

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

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

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

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

The Louisiana Public Records Law further says:

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

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

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

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

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

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

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

Now LDOE refuses to pay the judgment.

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

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

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

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

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