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DPS issues two contracts, hires contractor as state employee, pays her $437,000 to improve DMV & $13K in airfare to S.C.

August 19, 2014 by tomaswell

In 2011, two agencies within the Louisiana Department of Public Safety (DPS) entered into a pair of contracts with a company called CTQ Consultants totaling $38,400 to eliminate waste and to increase efficiency in the Office of Motor Vehicles ($22,400) by employing a combination of a trendy management method and to decrease the average DNA purchasing process turn-around time ($16,000).

Taken at face value, $38,400 is not an exorbitant amount for two contracts given some of the contracts awarded by the state. The infamous $270 million CNSI contract comes to mind. So does that $7.4 million consulting contract the state awarded Alvarez & Marcel (A&M) Consultants to track down $500 million in savings.

But then DPS promptly placed CTQ’s only employee, Kathleen Sill, on the state payroll as a $140 per hour state employee and proceeded to pay her $437,000 in salary over the next 28 months.

That’s $437,000 for her personally, not for her company.

Additionally, DPS paid $12,900 in air travel for 21 flights for Sill between Baton Rouge and CTQ’s Columbia, S.C., home office between Jan. 6, 2012 and March 2014, according to records obtained by LouisianaVoice.

The first contract, for $16,000, was awarded to CTQ by the Office of State Police on Feb. 1, 2011. That contract expired three months later, on April 30, 2011.

On Aug. 1, 2011, the $22,400 contract was awarded by the Office of Management and Finance. That contract expired five months later, on Dec. 31. Among the objectives of that contract was one that called for CTQ to assist in “streamlining including the operations of the Office of Motor Vehicles (OMV).”

State Police Superintendent Mike Edmonson heads DPS in his dual role as Deputy Secretary and oversees, besides State Police, the Office of Management and Finance, the Office of Motor Vehicles, the Louisiana Highway Safety Commission, the Office of State Fire Marshal, the Louisiana Oil Spill Coordinator’s Office and the Liquefied Petroleum Gas Commission. http://www.dps.louisiana.gov/deputy.html

On Jan. 1, 2012, one day after the second contract expired, Sill was placed on the state payroll as an employee/consultant and remained employed until May 1, 2014, records show.

So, what is CTQ and who is Kathleen Sill?

Well, if McKinsey & Co. is considered the world’s premier business consulting company, Alvarez & Marsal might best be considered Mac Lite and CTQ as something several rungs down in the consulting pecking order. It’s a typical touchy-feely out-of-state organization that makes suggestions on to how local administrators can best do their jobs—after waltzing in, analyzing, discussing and writing expensive reports—all in a matter of a few weeks or months, as in the case of CTQ. Or, in Sill’s case, 28 months.

Sill formed CTQ in 2009 after spending more than 30 years with Bank of America as a “quality and productivity executive.”

The CTQ web page has an about us feature but when we clicked on it, only Sill’s profile appeared on the screen. No other employees of the firm are identified anywhere on the web page. http://www.ctqconsultinggroup.net/index.php?option=com_content&view=article&id=2&Itemid=5

CTQ and Sill specialize in something called Lean Six Sigma, which Sill says is an abbreviated form of Six Sigma that draws upon her Six Sigma training and hands-on experience “to identify and implement results-driven solutions for your business.”

Six Sigma is a set of techniques for process improvement that was developed by Motorola in 1986 and General Electric adopted the program for its business strategy in 1995.

The program attempts to improve the quality of process outputs by identifying and removing causes of defects by employing a set of quality management methods and creates a special infrastructure of employees within an organization (“Champions,” Black Belts,” “Green Belts and “Yellow Belts”) who are experts in infrastructure methods.

Lean_Six_Sigma_Structure_Pyramid.svg[1]

The name Six Sigma originated from terminology tied to manufacturing, especially terms associated with statistical modeling of manufacturing processes.

Sigma indicates its yield or percentage of defect-free products it creates while a six sigma process is one in which 99.00066 percent of the manufactured products are statistically expected to be defect-free (3.4 defective parts per million).

According to Wikipedia.org, Six Sigma doctrine asserts:

  • Continuous efforts to achieve stable and predictable process results are of vital importance to business success.
  • Manufacturing and business processes have characteristics that can be measured, analyzed, controlled and improved.
  • Achieving sustained quality improvement requires commitment from the entire organization, particularly from top-level management.

Features that set Six Sigma apart from previous quality improvement initiatives include:

  • A clear focus on achieving measurable and quantifiable financial returns from any Six Sigma project.
  • An increased emphasis on strong and passionate management leadership and support.
  • A clear commitment to making decisions on the basis of verifiable data and statistical methods, rather than assumptions and guesswork.

Just how all this applies to the Department of Public Safety and how it justified an expenditure of $450,000 remains unclear.

Asked why Sill was placed on the state payroll as an unclassified employee instead of being retained as a contractor, DPS explained that the department “utilized a Civil Service hiring option to employ Ms. Sill as a WAE (when actually employed) due to the length of proposed projects underway or planned. This allowed her to perform projects across various state agencies as a state employee.”

One explanation might be the $50,000 plateau for contracts. Any contract of $50,000 or more must be approved by the Office of Contractual Review.

A better reason could be that contracts are easier for prying eyes to spot and more susceptible to prompting questions from nosy reporters than an otherwise low key state hire.

But if the results of “streamlining operations of OMV” can be used as a barometer, the efforts of CTQ and Sill are less than auspicious. One need only make a trip to one of the local DMV offices gutted by Gov. Bobby Jindal’s employee layoffs to witness the interminable delays brought on by his privatization obsession. And while you’re waiting, don’t take it out on the overworked, stressed-out employees. Just remember to thank Jindal—and Lean Six Sigma.

And bring a good book to read while you wait.

Posted in Civil Service, Contract, Contracts, Public Records, State Police | 16 Comments »

Nine of 11 Senators who contribute to Cassidy through Leadership PACS have interesting political baggage

August 18, 2014 by tomaswell

Because The Hayride political blog that tilts slightly to the right of Attila the Hun appears to be fixated on Edwin Edwards and those who contribute to his congressional campaign, we thought it only fair to offer the identities of a few contributors to the U.S. senatorial campaign of Congressman Bill Cassidy, the man Edwards is trying to succeed.

Cassidy, meanwhile, is attempting to unseat incumbent U.S. Sen. Mary Landrieu.

Unlike The Hayride, we opted not to concentrate on individual contributors (though we are reserving that as an option) but rather to peel the cover back on contributions of political action committees, or PACs.

The reason for this is simple: Small donors make good press but big donors get you reelected and PACs tend to be far more generous than individual donors.

There are three types of PACs:

  • Connected PACs are established by businesses, labor unions, trade groups or health organizations. They receive and raise money from a “restricted class,” usually sharing a common interest. Of the 4,600 connected PACs, 1,598 are registered corporate PACs, 995 are trade organizations and 272 are related to labor unions.
  • Non-connected PACs consist of groups with an ideological mission, single-issue groups and members of Congress and other political leaders. These organizations may accept funds from any individual, connected PAC, or organization.
  • Leadership PACs are set up by elected officials and political parties and may make independent expenditures, provided the expenditure is not coordinated with the other candidate. Unlike the other types, spending by leadership PACs is not limited. A leadership PAC may not use funds to support the official’s own campaign but can fund travel, administrative expenses, consultants, polling and other non-campaign expenses.

Cassidy has received $77,500 from 11 of those leadership PACs, including $5,000 from U.S. Sen. David Vitter’s Louisiana Reform PAC. Vitter, who apparently was able to find some spare change that was not be used for social contacts in Washington or New Orleans, is a candidate for governor in 2015.

Of the 11, only two, Sens. Roger Wicker of Mississippi and Lamar Alexander of Tennessee have exhibited any willingness to work with Democrats on legislation, records show.

He also receive about half a million dollars from a cluster of connected PACs, mostly medical professional groups, according to campaign finance records.

In all, Cassidy has received more than $4.7 million through Aug. 2, about 40 percent of which came from PACs, records show.

Other contributions from leadership PACs include:

  • $5,000 from the 21st Century Majority Fund of U.S. Sen. Johnny Isakson (R-Georgia). Besides voting in favor of the war on Iraq as a member of the U.S. House, he even gave a speech on the House floor in which he said he had personally considered the facts and felt it essential that Iraq’s weapons of mass destruction be destroyed. A 1990 supporter of abortion rights, he soon swerved to the right, becoming a pro-life candidate a decade later.
  • $10,000 from the Alamo PAC of U.S. Sen. John Cornyn (R-Texas), one of “Big Oil’s 10 favorite members of Congress,” according to MSN Money. Cornyn has received more money from the oil and gas industry than all but six other members of Congress. Cornyn once compared the Supreme Court’s refusal to hear arguments for sustaining Terri Schiavo’s life with the murders of two judges, a statement that received widespread condemnation and for which he later apologized.
  • $5,000 from the Bluegrass Committee of U.S. Sen. Mitch McConnell (R-Kentucky). McConnell, among other things, voted against a bill that would help women earn equal pay for performing the same job as men, opposed a Senate bill that would have limited the practice of corporate inversion by U.S. corporations seeking to limit U.S. tax liability, attempted twice to get federal grants for Alltech, whose president made subsequent campaign contributions to McConnell, to build a plant in Kentucky for producing ethanol from algae, corncobs and switchgrass, only to criticize President Obama in 2012 for twice mentioning biofuel production from algae, and requested earmarks for defense contractor BAE Systems while the company was under investigation for alleged bribery of foreign officials.
  • $5,000 from U.S. Sen. Richard Shelby’s Defend America PAC. Shelby (R-Alabama), who in 2000, took a hard line on leaks of classified information, in 2002, revealed classified information related to the 9-11 attacks to Fox News.
  • $5,000 from the Freedom Fund PAC of U.S. Sen. Mike Crapo (R-Idaho). Crapo, who claimed to be a Mormon who abstained from using alcohol, pled guilty to DWI in 2013, was fined $250 and received a one-year suspension of his driver’s license. That same year, he voted against passage of a bill that would have expanded background checks for all gun buyers.
  • $2,500 from Lindsey Graham’s Fund for America’s Future. The South Carolina Republican described himself in 1998 as a veteran of Operation Desert Shield and Desert Storm when in reality, he never left South Carolina. He did, however, serve in Iraq for a few weeks in 2007 and during the Senate’s August recess in 2009. In 2010, he alleged that “half the children born in hospitals on our borders are the children of illegal immigrants.” A Pew Foundation study, however, gave that number as only 8 percent. In 2009, he supported a climate change bill, calling for a green economy. A year later, he flipped, saying, “The science about global warming has changed. I think they’ve oversold this stuff.” He added that he would vote against the climate bill that he had originally sponsored.
  • $10,000 from the Heartland Values PAC of U.S. Sen. John Thune (R-South Dakota). A name to watch, Thune was considered as John McCain’s running mate in 2008 but lost out to Sarah Palin (ouch!). He was also considered a possible candidate for president in 2012 (because he “looked presidential”) but opted out. He also was considered to be on the short list for Mitt Romney’s running mate in 2012 but lost out again, to Paul Ryan.
  • $10,000 from Next Century Fund PAC of U.S. Sen. Richard Burr (R-North Carolina). Burr voted against the financial reform bill of 2010 which regulates credit default swaps and other derivatives, saying, “I fear we’re headed down a path that will be too over burdensome, too duplicative, it will raise the cost of credit….The balance that we’ve got to have is more focus on the products that we didn’t regulate….more so than government playing a bigger role with a stronger hand.” During the financial crisis of 2008, he told his wife he wasn’t coming home for that weekend and instructed her to withdraw as much as the ATM would allow. “And I want you to go tomorrow, and I want you to go Sunday (and do the same thing).” He said he was convinced “that if you put a plastic card in an ATM machine (sic) the last thing you were going to get was cash.” Apparently he now keeps his money in his PAC.
  • $5,000 from Responsibility and Freedom Work, the leadership PAC of U.S. Sen. Roger S. Wicker (R-Mississippi). Wicker appears to be one of the few in Congress willing—and able—to work across the aisle with Democrats. He served as a member of the Helsinki Commission monitoring human rights and helped to pass a bill imposing tough penalties on Russians accused of violating human rights and he also supported the Bipartisan Sportsmen’s Act of 2014 aimed at improving the public’s ability to enjoy the outdoors. In July of 2013, a letter addressed to Wicker tested positive for the poison ricin.
  • $10,000 from Tenn PAC operated by U.S. Sen. Lamar Alexander (R-Tennessee). Considered one of the most bipartisan members of Congress, Alexander received a letter a year ago from 20 Tennessee tea-party groups calling on him to retire in 2014 because “our great nation can no longer afford compromise and bipartisanship, two traits for which you have become famous.” Among his bipartisan votes were two to confirm Harold Koh as legal adviser to the State Department and for President Obama’s nominee for the U.S. Supreme Court, Sonia Sotomayor.

Posted in Campaign Contributions, Congress, Elections, House, Senate, PACs, Politicians, Senate | 19 Comments »

New ‘Friends of’ web page leads to speculation of PSC member Scott Angelle’s entry into 2015 governor’s race

August 15, 2014 by tomaswell

Does Scott Angelle have his eye on the 2015 governor’s race?

The Public Service Commissioner, Democrat-turned-Republican, former interim lieutenant governor, erstwhile Secretary of the Louisiana Department of Natural Resources and one time member of the LSU Board of Supervisors would seem to be rounding out his resumé while carefully moving up the pecking order in Louisiana politics.

The governor’s race isn’t until 2015 and Angelle isn’t up for re-election to a new six-year on the PSC from the Second District until 2018. He was first elected in 2012 to succeed Jimmy Fields who retired after 16 years.

But an Internet web page created by an outfit calling itself Friends of Scott Angelle and apparently chaired by Gov. Bobby Jindal’s favorite fundraiser Allee Bautsch certainly looks like that of a candidate considering his options for higher office as opposed to that of one running for re-election to the PSC this far out. In other words, just another political opportunist who ducked out of his DNR responsibilities at the height of the Bayou Corne sinkhole crisis.

Scott Angelle

There is some speculation that Angelle may opt to run for lieutenant governor instead of governor. He is expected to announce next month. Qualifying for this year’s elections ends a week from today (Aug. 22). If he draws no opposition for his PSC seat, then his options are wide open without jeopardizing his current position.

A lieutenant governor candidacy, with the full backing of the governor, would be a smack-down double cross of State Sen. Elbert Guillory (R/D/R-Opelousas) who has faithfully served as Jindal’s lap dog and now wants his treat: the lieutenant governor’s office for himself.

Bautsch, it should be noted, also worked in the unsuccessful 5th Congressional District race of State Sen. Neil Riser (R-Columbia) last year. She also served as treasurer of the Supriya Jindal Foundation for Louisiana’s Children, the foundation of Jindal’s wife that attracted considerable national media attention because of the corporate donors who seemed to receive special treatment from the Jindal administration.

Friends of Scott Angelle contains two pages devoted to Angelle and his vision that Louisiana’s best days “are ahead of us,” followed by a third page that consists of campaign contributor information. That information includes blanks for the name, address, phone numbers and credit care information for potential donors and twice emphasizes that the $5,000 campaign contribution limit applies to each individual and company and that each member of a contributor’s family and each of his or family members’ corporate entities may give the $5,000 maximum.

It also includes the telephone number and email address of Bautsch.

The verbiage of the entire message is literally dripping with overblown praise for Angelle and ends with mom and apple pie flag-waving rhetoric worthy of a schmaltzy Lifetime Network movie:

“It is important that we, friends of Scott, send out a clear message and work to keep him in a position to serve Louisiana. He is one of the few that puts people before party, puts Louisiana before Washington, and focuses on the next generation, not the next election. Our state, more than ever, needs leaders at the highest levels that (sic) have prepared themselves to help the 18th great state of our union, and its people, reach its full potential. Scott is certainly one of those with the skills, the passion and the preparation to make a difference. Let’s show Scott we support his hard work to make Louisiana great!”

So just where would an Angelle gubernatorial run leave U.S. Republican Sen. David Vitter or Democratic State Rep. John Bel Edwards?

First, it’s important to note that Angelle would be Jindal’s hand-picked candidate, as evidenced by Bautsch’s involvement in his campaign just as Riser was Jindal’s man in the ill-fated 5th District congressional race.

Second, it’s pretty well known there’s no love lost between Jindal and Vitter. Still, Jindal stopped far short of demanding Vitter’s resignation from the Senate following his links to the Washington, D.C. Madam and claims of similar associations with a New Orleans prostitute while waxing indignant over Congressman Vance McAllister’s kissing an aide in his Monroe office and repeatedly demanding his resignation. (McAllister, by the way, is the one who defeated Jindal’s boy Riser, which could explain the personal rancor on Jindal’s part.)

So, if Jindal throws his ever-weakening political strength behind Angelle (something candidates may dread, given his abysmal success rate in past elections), and, depending on whether or not State Republican Party Chairman Roger Villere aligns himself and the party with Jindal or Angelle, it could split the Republican vote and Edwards could stroll into the runoff.

In the event of such a scenario, either Republican candidate would be so bloodied from the inter-party fighting that Edwards, with no political baggage and possessing a calm, thoughtful demeanor, could stand as an attractive option to voters.

All that speculation of course, hinges on whether or not Angelle commits to the 2015 governor’s race or to lieutenant governor, or decides to cool his jets for eight years.

But there’s still that Friends of Scott Angelle web page…

Posted in Campaign Contributions, Elections, Governor's Office | 7 Comments »

Report on Edmonson Amendment recommends increased benefits not be paid; was bill ‘hijacked’ by author Morrell?

August 14, 2014 by tomaswell

Thanks to the resourcefulness of C.B. Forgotston, LouisianaVoice has obtained a copy of the seven-page report on the Edmonson Amendment and it appears that State Police Superintendent Col. Mike Edmonson and trooper Louis Boquet of Houma are legally prohibited from taking advantage of a special amendment adopted on their behalf by the Louisiana Legislature.

Meanwhile, LouisianaVoice received an unconfirmed report concerning the origination of the amendment that if true, adds a new twist to the curious series of events leading up to passage of the amendment in the last hours of the recent legislative session.

The report, authored by Louisiana State Police Retirement System (LSPRS) board attorney Denise Akers and Florida attorney Robert Klausner, specifically says that Edmonson and Boquet are barred from accepting the retirement windfall because the amendment granting them the special exemption from the state’s Deferred Retirement Option Plan (DROP) is unconstitutional on no fewer than three levels.

Klausner and Akers also expressed concern that the source of funding for the increased benefits would have been the Employee Experience Account “which is reserved as the source of future cost of living benefits (for state police retirees and their widows and children) and payments toward the unfunded accrued liability.”

Edmonson, under the amendment would have seen his retirement income increase by $55,000 a year. The amount of what Boque’s retirement increase would have been is unknown.

The report, however, stopped short of recommending that the board file legal action to have Senate Bill 294, signed into law by Gov. Bobby Jindal as Act 859, declared unconstitutional.

Instead, it recommended that the LSPRS “simply decline to pay any benefit under Act 859” and that the matter “would only need to be litigated if someone benefitting from the act (Edmonson or Boque) filed to enforce it.” The reported added that both men “have indicated they do not desire to enforce it. Thus, LSPRS may incur no litigation cost in this matter.”

The report said that should either man attempt to collect the increase retirement benefits by challenging the board’s refusal to pay the benefits, “it would fall to the attorney general to defend the law, rather than expending (LSPRS) resources to pursue a costly declaratory relief action.”

The report noted that the Louisiana Supreme Court, in a decision handed down only last year, “made it clear that a pension law adopted in violation of constitutional requirements is void and of no effect.” That was the ruling that struck down Jindal’s controversial state pension reform legislation.

“It is our view that pursuit of a declaratory relief or other legal action seeking to declare Act 859 invalid is unnecessary,” the report said. “By determining that it will not enforce the act, the board acts consistent with its fiduciary duty.”

The board still must vote to accept the recommendations of Klausner and Akers and with Jindal and Edmonson controlling the majority of the 11 seats on the LSPRS board, such a vote remains uncertain.

The board is scheduled to take up the matter at its next meeting, set for Sept. 4 but likely to be moved up now that the report is public.

The report also noted that the amendment was not proposed in either the House or the Senate, but added during conference committee.

SB 294 was authored by State Sen. Jean-Paul Morrell and dealt only with administrative procedures in cases in which law enforcement officers came under investigation. State Sen. Neil Riser (R-Columbia) inserted the amendment during conference committee discussion of the bill but recent reports have surfaced that place Morrell, who also was one of the three senators—along with three representatives—who served on the conference committee, squarely at the center of the controversy as well.

Morrell authored the bill at the request of the Fraternal Order of Police (FOP) but was said to have subsequently told the FOP lobbyist that he would have to “hijack” the bill to conference committee in order to accommodate state police and Edmonson.

FOP President Darrell Basco, a Pineville police officer, said he had no personal knowledge of such events and lobbyist Joe Mapes did not return a phone call from LouisianaVoice.

Jindal, meanwhile, has remained strangely silent on the issue of his signing the bill with no apparent vetting by his legal counsel.

The Klausner report said the act was unconstitutional on three specific counts:

  • The amendment “does not meet the constitutionally required ‘one object’ requirement” which says, “The legislature shall enact no law except by a bill introduced during that session…Every bill…shall be confined tone object. Every bill shall contain a brief title indicative of its object. Action on any matter intended to have the effect of law shall be taken only in open, public meeting.” Conference committee proceedings occur in closed sessions.
  • The amendment “does not meet the germaneness requirement” of the Louisiana Constitution, which says, “No bill shall be amended in either house to make a change not germane to the bill as introduced.”
  • “No notice was provided as required by the constitution for retirement related bills and the bill itself never indicated that proper notice was given, all in violation of the Louisiana Constitution,” which says, “No proposal to effect any change in existing laws or constitutional provisions relating to any retirement system for public employees shall be introduced in the legislature unless notice of intention to introduce the proposal has been published, without cost to the state, in the official state journal on two separate days. The last day of publication shall be 60 days before introduction of the bill. The notice shall state the substance of the contemplated law or proposal, and the bill shall contain a recital that the notice has been given.”

Here is the full Klausner report:

Klausner Report on SB 294

Posted in Attorney General, Boards, Corruption, Ethics, Finances, Governor's Office, House, Lawsuits, Legislators, Legislature, Retirement, Senate, State Police | 7 Comments »

Baton Rouge attorney authors guest column rebutting recent LABI ‘fact sheet’ about state’s ‘unfavorable’ judicial climate

August 14, 2014 by tomaswell

Editor’s note: The following is a guest column by a Baton Rouge attorney who represents plaintiffs in civil litigation and who chooses to use the nom de plume of Edward Livingston, considered one of the fathers of Louisiana law. 

By Edward Livingston

The Louisiana Association of Business and Industry (LABI) has issued a “fact sheet” about “Louisiana’s Judicial Climate.” http://labi.org/assets/media/documents/JudicialClimateFactSheet_Reduced.pdf

It should not surprise you that big business, and particularly the oil and gas industry, are as much in denial about changes in Louisiana’s judicial climate as they are about changes in the earth’s climate.

The juridical, or artificial, “persons” http://www.legis.state.la.us/lss/lss.asp?doc=109467 who constitute Corporate America hate, hate, hate the civil justice system. When you compare the three branches of government, it’s easy to see why. Through lobbying, donations and favors, they easily influence the legislative branch. As an example, note that after the worst oil spill in history, which caused billions of dollars in personal, economic, and environmental damages, the oil and gas industry was able to derail congressional proposals to raise the meager $75 million damage cap under the Oil Pollution Act. They have similar influence on the executive branch through regulatory capture. Look no further than the Federal Communications Commission, purportedly established to protect consumers, but even under a Democratic president, it is run by a former (and likely future) telecom lobbyist. Is it any wonder that the FCC is working to do away with net neutrality? And of course, our own commissioner of insurance spends our money to run ads and buy billboards accusing us all of committing insurance fraud.

But the judiciary is another kettle of fish. The civil justice system is the one area where common, everyday natural persons have a chance to stand almost as equals to corporate behemoths. Because procedural rules are designed to ensure a fair trial, because ethical rules prevent ex parte lobbying of judges, and because corporate litigants do not know the identity of nor can they attempt to influence individual jurors, it is much more difficult for them to create the lopsided playing field that they are used to in their other dealings with government entities.

This horror at the notion of being subjected to actual justice gave rise to the so-called “tort reform” industry. This industry does two things: It attempts to convince the public, and lawmakers, that the judicial system is inherently unfair, and it tries to sell the notion that the civil justice system is somehow bad for the economy. These attempts, in turn, serve two goals: They seek to poison the minds of potential jurors by creating a bias in favor of defendants in civil cases, and, more importantly, they want to change the substantive rules of law and procedure to decrease corporate liability for wrongdoing.

Tort reformers’ arguments are rife with references to “frivolous lawsuits,” but that’s just a smokescreen. They know that frivolous lawsuits are both vanishingly rare (what in the world is the incentive for a contingent fee lawyer to spend her own money pursuing a lawsuit she probably can’t win?) and rapidly dismissed, usually with sanctions http://www.legis.state.la.us/lss/lss.asp?doc=112283 for the lawyer who filed them. What they’re really concerned about are the lawsuits that have merit, because those are the ones that cost them serious money to repair the damage they’ve done. Whether it’s a person rendered quadriplegic in crash with an 18-wheeler being driven by a drunken driver or a worker burned beyond recognition in an industrial explosion, those are the kinds of cases that the purported “reformers” are really trying to limit.

With that background in mind, let’s turn to LABI’s description of our judicial climate. Its fact sheet focuses on three issues that it contends are harming Louisiana. First, LABI is concerned about legacy lawsuits, that is, lawsuits brought by landowners against oil and gas producers for damage to their land caused by the oil and gas production. They are worried that these lawsuits hurt the oil and gas industry, and by extension the economy, by discouraging production companies from drilling in the state, or by discouraging them from entering the state in the first place. Second, LABI is also worried about the lawsuit brought against ninety-seven oil and gas producers by the Southeast Louisiana Flood Protection Authority-East. Again, the concern seems to be that the oil and gas industry, and thus the state’s economy, will be harmed by the mere attempt to hold these companies liable for their alleged wrongdoing. Finally, LABI is appalled that defendants cannot request jury trials unless there is more than $50,000 at issue in the case. This deprivation of access to jury trials, due to a threshold that is much greater than that in other states, is said to lead to excessive litigation. The implication is that the judges who try these small cases are giving claimants too much money.

LABI’s fact sheet is full of footnotes and citations, but that should be taken with a grain of salt. While it cites a number of public bodies for raw numbers on suit filings, trials, judges and the like, the raw meat on the effects of these numbers comes almost exclusively from professional tort reform institutions. The primary, if not exclusive, purpose of these organizations – groups like the American Tort Reform Association, American Tort Reform Federation, the U.S. Chamber of Commerce, its Institute for Legal Reform, and Louisiana Lawsuit Abuse Watch – is to complain that the civil justice system hurts the economy and is unfair to corporate defendants. It would be shocking if their work product didn’t support those positions. But if you believe them, I’m sure BP would like to share with you their studies showing how inconsequential the Deepwater Horizon disaster was.

If you’ve made it this far, it probably won’t surprise you to find that LABI’s three big concerns are each, to use a technical legal term, baloney. Let’s start with legacy litigation. In these cases, landowners complain that their oil company lessees acted unreasonably and damaged their land. The underlying problem here – the fact that oil companies have polluted a lot of land in Louisiana – is hardly new (the Louisiana Supreme Court held oil companies liable for land damage as early as 1907), and it resulted from two things: weak rules, and even weaker enforcement of those rules. There’s a marvelous timeline of oil company documents dating back to the 1930s showing that the oil companies knew very well that they were breaking the law and could someday be held accountable for it. http://jonesswanson.com/slfpaecase/timeline/

But the Department of Natural Resources did not promulgate strong rules, and they didn’t even enforce the weak rules they had. The difference? Courts are now actually enforcing both the leases and the regulations, requiring the land to be cleaned up, and that’s costing oil companies a lot of money. Some oil companies are getting popped with huge damage awards to clean up the tremendous messes they made. If you’re a really big landowner in these cases (like former governor Mike Foster), you’ve got some leverage, and the producers will settle with you. If you’re a little guy, not so much.

According to the oil and gas industry, these cases are a huge problem, hampering new oil and gas exploration and putting the state’s economy at risk. Their proposed solution to the problem won’t surprise you – they’ve gone to the legislature and sought repeatedly, and successfully, to take the decision-making on cleanups out of the courts and put it back in the hands of their old pal, the Department of Natural Resources. The legislature has gone along with this, especially this last session when the big landowners (whose cases have already been settled) gave their go-ahead on it.

So, to put it in context, the oil and gas companies are basically like the college kids who trash your rental house during the semester, and then whine when you keep their deposit and otherwise seek to hold them accountable for the damage they’ve done. The difference is the legislature actually listens to these deadbeats.

Perhaps the final irony on legacy cases involves Don Briggs, the head of the Louisiana Oil and Gas Association (LOGA), a big-time tort reformer who for years has been telling anyone who would listen that legacy litigation was killing the oil and gas industry. That was working great for him until he actually filed a lawsuit, and he got put under oath, subject to the penalties for perjury. At that point, as one news outlet put it, “Briggs was forced to admit that he knows of no oil companies that have left or will be leaving Louisiana because of its legal climate. He also has no proof companies even consider the legal climate and was unable to cite any data to back up his long-held claims.” http://www.acadianabusiness.com/business-news-sp-416426703/oil-a-gas/16586-read-briggs-depo-here

If you’re curious about what a tort reform advocate has to say about the legal climate when they’re placed under an oath to tell the truth, you can read his entire deposition here. http://www.theind.com/extras/Official-Transcript-Briggs-Depo.pdf

LOGA’s lawsuit brings us to LABI’s second worry – the SLFPA-E suit. Sometimes, those rowdy college kids didn’t just trash the place; sometimes, on the coast, they destroyed it altogether.   LOGA filed that suit to have the levee board suit declared illegal – LOGA lost. The same operative facts apply, and this suit was opposed by largely the same cast of characters, with the notable addition of Governor Bobby Jindal and his former head of the Coastal Protection and Restoration Authority (and now congressional candidate) Garret Graves. They both leapt to the defense of the poor, beleaguered oil industry against the terrible, greedy levee board that was trying to find some way to raise funds for a $50 billion dollar coastal restoration plan. Unfortunately, Graves has a problematic penchant for telling the truth. First, he admitted that the lawsuit isn’t frivolous at all, but that it has merit, stating, “I will be the first to admit there’s liability there.” [http://www.cleanwaterlandcoast.com/james-gill-graves-shows-lawsuit-needed-2/] Then he pulled the whole “reform” fig leaf off the operation, predicting, “I don’t see any scenario where this levee district doesn’t get gutted – or, say, ‘reformed’ – in the next legislative session.”   http://thelensnola.org/2013/08/22/levee-district-jindal-administration-remain-at-odds-over-lawsuit-a-week-after-hints-of-reconciliation/

Despite all this, the legislature did everything it could do to reform gut the levee board lawsuit; we’ll see if it was successful in giving away the state’s chance to recover billions of dollars to pay for coastal restoration.

Finally, there is that horrible $50,000 jury trial threshold. A little background, and some inside baseball: As many know, Louisiana private law is based on Roman, or civil, law, as received through France and Spain. Unlike the English common law that prevails in the other forty-nine states, Louisiana has no tradition of civil juries. As a result, Louisiana is the only state without a constitutional right to a civil jury trial; Louisiana’s constitution is the only one that requires appellate courts to review both legal and factual findings (like amounts of damages) of trial courts in civil cases; and in Louisiana the litigants, rather than the state or local governments, have to front the money to pay for a civil jury trial.

Over the years, particularly since the adoption of the Code of Civil Procedure in 1960, civil jury trials became more common. Then, in the late 80s and early 90s, a certain insurance company decided that “good hands” required it to refuse to settle any small auto cases, no matter the facts, and to force claimants with such small cases into trial by jury. This had several effects: It made those small cases less economical to litigate, since they were more expensive, and, more importantly, it clogged the courts’ trial calendars with cases, because every case had to set for jury trial. After several years of this foolishness, the district court judges convinced the legislature that jury trials should be limited to relatively large cases; the $50,000 figure that was chosen was the threshold for federal diversity jurisdiction at the time. For truly big (and even not-so-big) cases, everyone still has a statutory right to a jury trial.

So why is this a concern for LABI? Because they don’t like the availability of relatively inexpensive and rapid dispute resolution. It drastically decreases the leverage of insurers, who want to force claimants into accepting lowball settlements. More importantly, by clearing the trial court dockets of small cases, it allows truly large and significant cases to get to trial much sooner, reducing the leverage of defendants in those cases by reducing the systemic delay in resolution of the cases.

How do we know that these are LABI’s concerns, rather than a reverence for the sanctity of the right to a jury trial? Easy. They have never proposed to change the state constitution to provide for a constitutional right to civil jury trials or to prohibit appellate review of facts. If those things were done by the legislature, those rights could be used to overturn things like damage caps, which are nothing more than pre-litigation (and usually pre-accident) findings of fact by the legislature. If they really believed that jury trials were a sacrosanct method of finding facts in a civil trial, they’d be talking about those issues.

So, what is the true judicial climate in Louisiana? Well, if you’re an injured person, a landowner, or a taxpayer, for the last forty years, it’s been changing for the worse. Examples:

 

I could go on; these are just the “greatest hits” of Louisiana tort reform. Every year, tort reformers try, usually with at least some success, to chip away at the rights of citizens and governmental entities to seek redress for corporate wrongdoing. For instance, this year, since the attorney general recovered several hundred million dollars for the Medicaid program from pharmaceutical companies, Big Pharma convinced the legislature to take away his power to hire outside lawyers without the legislature’s approval. http://www.legis.la.gov/legis/ViewDocument.aspx?d=915585&n=HB799%20Act%20796

If the legislator’s will bow to Big Pharma’s will on this, what are the odds they’ll let the attorney general ever hire outside lawyers? And every year, proposals to restore some of the historic rights of Louisiana citizens fall on deaf ears at the capitol.

Louisiana is a conservative state. Its conservative voters elect fairly conservative judges, and they make up fairly conservative juries. If one of those judges or juries should run amuck, there are multi-parish appellate courts, and a state-wide supreme court, acting as backstops for Corporate America.

But that’s never enough. Corporate America still wants to take away your rights. Ironically, these corporations are the true socialists. The only thing they want privatized is profit. They want the costs and risks of production to be borne by society at large: their victims and, ultimately, the taxpayers.

 

Posted in ALEC, American Legislative Exchange Council, Attorney General, Courts, Governor's Office, Judges, Lawsuits | 3 Comments »

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