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‘Deliberative process’ defense used to protect ALEC records in Texas; reminiscent of 2012 LouisianaVoice experience

September 11, 2013 by tomaswell

Because we have all the metaphorical snakes we can kill right here in Louisiana, it’s rare that we dwell on events in other states unless there is a direct link to developments in the Louisiana political arena.

But a request for public records in Texas pertaining to the American Legislative Exchange Council (ALEC) under that state’s Freedom of Information Act raised a red flag when a favorite but questionable phrase of Louisiana officials was invoked by a Texas legislator in an effort to prevent the release of records.

For the record, we do not believe it a coincidence that the “deliberative process” ploy, so popular with Gov. Bobby Jindal and his minions reared its ugly head in Texas over the issue of whether or not ALEC records are public.

It is our opinion, impossible to prove because of the veil of secrecy thrown over this organization in an effort to conceal its agenda from public scrutiny, that Jindal did not originate the deliberative process maneuver to protect public records from becoming just that—public.

But he certainly knows how to use—perhaps abuse is a better word here—the exception that he slipped into a law that he proudly points to in his national travels as the “gold standard” of transparency that he rammed through the legislature in 2009.

While that 2009 law requires elected and appointed officials to disclose their personal finances, it did little to open up the records of the governor’s office to public examination.

Now, the Freedom of Information Foundation of Texas (FOIFT) has filed a brief with the Texas Attorney General in support of a request for records by the Center for Media and Democracy (CMD).

That request challenges ALEC’s efforts to declare its communications immune from state public records law—even communications with Texas elected officials.

FOIFT’s brief, filed late last month, supports CMD’s position and raises additional arguments countering claims by Rep. Stephanie Klick that the lobbying organizations communications with lawmakers are not subject to disclosure.

Texas was the first state in which ALEC made a formal request of the Attorney General that its records should be exempt from Texas sunshine-in-government laws. ALEC has even begun stamping documents with a disclaimer that says materials such as meeting agendas and model legislation are not subject to any state’s open records laws.

FOIFT counters that assertion by saying the arguments by Klick and ALEC are “mutually inconsistent.”

“Rep. Klick invokes the deliberative process privilege, which involves policy discussions internal to a governmental body,” not between a legislator and a third-party special interest group funded by lobbyists trying to influence legislation,” the brief says. At the same time, it says, “ALEC invokes its members’ First Amendment right of association, which involves its internal discussions and membership.”

Accordingly, it says, because ALEC is communication with Klick in her official capacity as a state representative, the requested documents should be officials records to which the public has a First Amendment right of access.

All of which raises the question of which came first the chicken (Jindal) or the egg (ALEC) insofar as the origination of deliberative process?

Our opinion, for what it’s worth, is that Jindal devised that ploy straight from ALEC’s playbook—just as have so many of his policies, from privatization of prisons and hospitals to school vouchers and charters to pension, healthcare and workers’ compensation reform to massive layoffs of state employees.

Jindal and his legislative floor leaders are in lock step with ALEC and that’s a sad commentary on those officials’ inability to think and act for themselves. Their every move is dictated by ALEC, which writes “model legislation” for its members to introduce in state legislators and assemblies back home.

Sometimes, lawmakers even forget to change key wording in their bills, exposing their efforts for what they are—shams, sacrifices offered up at the altar of profiteering enterprise either by puppets or co-conspirators.

It’s no wonder that ALEC wants to protect its records at all costs.

The affair in Texas is reminiscent of our own experience with Rep. Joe Harrison (R-Gray) in July of 2012.

Harrison, the State Chairman of ALEC, sent out a letter on state letterhead soliciting contributions of $1,000 each from an unknown number of recipients of his form letter to finance the travel of Louisiana legislative ALEC members to an ALEC conference in Salt Lake City set for July 25-28.

The letter opened by saying, “As State Chair and National Board Member of the American Legislative Exchange Council (ALEC), I would like to solicit your financial support to our ALEC Louisiana Scholarship Fund.”

Not college scholarships, mind you, but to support “over thirty Louisiana Legislators serving on ALEC Task Forces.” Contributions, Harrison said, “will allow the opportunity (for legislators) to attend conferences funded by the ALEC Scholarship Fund.

“The conferences are packed with educational speakers and presenters, and gives (sic) the legislators a chance to interact with legislators from other states, including forums on Medicaid reform, sub-prime lending, environmental education, pharmaceutical litigation, the crisis in state spending, global warming and financial services and information exchange. All of these issues are import (sic) to the entire lobbying community.

“I, along with other members of the Louisiana Legislature, greatly appreciate your contribution to the scholarship fund. Your $1,000 check made payable to the ALEC Louisiana Scholarship Fund can be sent directly to me at 5058 West Main Street, Houma, Louisiana 70360.

LouisianaVoice submitted a public records request to Harrison requesting, since the contribution solicitation was written on Louisiana House of Representatives letterhead, that Harrison provide the identities of every person to whom the solicitation was sent.

Harrison never responded to the request but House Clerk Alfred “Butch” Speer jumped into the fray, responding, “I have looked further into your records (omitting the word “public” from our request). Rep Harrison sent that one letter to a single recipient,” he said, overlooking the fact that it was a form letter that opened with “Dear Friend.” Not a very personal way for a letter to be sent to a single recipient.

Also unexplained by Speer was how a single $1,000 contribution might cover the travel expenses of “over thirty” legislators to attend the conference.

Speer, ignoring that the letter was printed on state letterhead, said, “The origin of a document is not the determining factor as to its nature as a public record. Whether the letter was or was not composed on state letterhead…does not, per force, create a public record.

“What Rep. Harrison was attempting is of no moment unless he was attempting some business of the House,” he said.

Speer again apparently ignored the fact that the House and Senate routinely pay per diem, travel and lodging for lawmakers to attend ALEC conference. In fact, between 2008 and 2011, the House and Senate combined to pay 34 current and former members more than $70,000 for attending ALEC functions in New Orleans, San Diego, Washington, C.C., Phoenix, Atlanta, Chicago, Dallas and Austin.

If those ALEC trips were not for state business, why in hell were the House and Senate shelling out that money for legislators’ expenses and per diem?

Mr. Speer’s reasons for protecting the names of the recipients of that letter was, to say the lease, quite disingenuous and his effort to protect that information goes against the grain of everything for which a public servant is sworn to uphold, protect and serve.

What’s more, his arguments don’t even come close to accurately defining what is and what is not a public record. We don’t claim to be attorneys at LouisianaVoice, but we can read the public records act.

For Mr. Speer’s erudition, it can be found in LA. R.S. 44:1-41 and Article XII, Section 3 of the Louisiana Constitution.

Posted in ALEC, American Legislative Exchange Council, Governor's Office, House, Senate, Legislature, Legislators, Public Records, Transparency | 7 Comments »

Notable Quotables (in their own words)

September 7, 2013 by tomaswell

“A lot of people know they owe money. This gives an opportunity for them to save some money and get the debt cleared.”

—Senate President John Alario (R-Westwego), on the two-month tax amnesty program that goes into effect on Sept. 23 and which will allow delinquent taxpayers to save 100 percent on penalties and half of the interest on their late taxes.

“By creating the Office of Debt Recovery and better collecting funds owed to the state, we can use taxpayer dollars more responsibly and ensure that we continue funding critical services like education and health care.”

—Gov. Bobby Jindal, on signing HB 629 (Act 399) into law, creating the Office of Debt Recovery within the Department of Revenue.

Posted in Governor's Office, Legislature, Legislators, Notable Quotables, Revenue, Taxes | 2 Comments »

Trying to reconcile spending millions to collect overdue state debts with granting amnesty to 300,000 deadbeat taxpayers

September 7, 2013 by tomaswell

Some things are just downright difficult to understand;

  • Item: On June 20, Gov. Bobby Jindal signed HB 629 (Act 399) into law. The bill, passed during the 2013 legislative session, created the Office of Debt Recovery within the Louisiana Department of Revenue for the collection of delinquent debts owed to certain government entities—taxes that one source said far exceed the official estimates.
  • Item: A month later, on July 21, Jindal signed HB 456 (Act 421) into law that created a tax amnesty program whereby those owing taxes to the state may have 100 percent of their penalties and half the interest waived. The letters being sent out this week to delinquent taxpayers, however, could provide them with an argument on a legal technicality that also won’t have to pay the tax principal amounts.

As we said, some things just don’t make sense.

On the one hand, the legislature passes and Jindal signs into law a bill creating an agency whose specific purpose is to collect debt—lots of debts—owed to the state.

The new agency, according to the Legislative Fiscal Office will create 23 new state positions (the antithesis of the Jindal philosophy of government) at a cost of $1.7 million per year in salaries and benefits and another $4.4 million in administrative costs.

But with nearly $1.4 billion in payments owed to state government that are at least six months overdue, that would seem to be a good investment in that one estimate says that if the state increases debt collection efforts on such outstanding debts as delinquent college tuition installments and unpaid environmental monitoring fees by as little as 10 percent, it could generate an additional $100 million per year for the state.

On the other hand, Jindal’s new $250,000-a-year Secretary of Revenue and the Louisiana Legislature, by virtue of Act 421, will let delinquent taxpayers off the hook for all penalties and half the interest owed on those back taxes.

The Legislative Fiscal Office estimates about 300,000 persons and businesses who owe some $700 million in delinquent taxes will be eligible for the amnesty program, though only about 30,000 are expected to take advantage of the amnesty date, which will begin on Sept. 23 and end on Nov. 22.

The state anticipates receiving $200 million from the program for the current fiscal year with the revenues earmarked for health care bills. Any shortfall will result in even more health care cuts.

LouisianaVoice, however, has received information that indicates the amount of delinquent taxes, interest and penalties may be far larger than the $700 million estimate—almost three times that much, in fact.

Figures provided us shows that the total owed exceeds $2 billion. That includes taxes of $1.03 billion, interest of $687,000 and penalties of $301 million.

“It is amazing how many taxes are not paid,” said our source. “Amnesty will give us another few years in ‘garage sale’ money and then when it runs out, say four years from now in the middle of the next administration (the) Jindalites can cry foul and push for more of the same type programs.”

The amnesty letters are being printed this weekend and will be mailed out within the next few days. “The letter tells taxpayers what they owe and explains that they owe half the interest and no penalty,” the LDR employee said. “But it doesn’t mention anything about paying the tax. A good lawyer could mount a good argument on this.

“The word is that the error was discovered this week and the change would have been minimal (by) adding the words ‘tax and’ before the interest comment,” the employee said. “The really interesting thing is this form letter was put together some time ago and at the last minute someone decided to proofread it. Still, it seems as though someone, maybe in the legal department, would have been given this to read.”

Posted in Budget, Governor's Office, Health Care, House, Senate, Legislature, Legislators, Revenue, State Agencies, Taxes | 9 Comments »

Sur-prise sur-prise, Gomer: Deloitte wins IT contract after spending year consulting with state on consolidation plan

September 5, 2013 by tomaswell

As anticipated, Deloitte Consulting, which met regularly with state officials over the past year to assist in planning for a comprehensive consolidation of information technology (IT) services for the Division of Administration, was named winner of the contract for “Information Technology Planning and Management Support Services,” according to an email announcement by the Division of Administration (DOA) that went out to IT employees Thursday morning.

The announcement, which did not mention a contract amount, came only hours after LouisianaVoice indicated that Deloitte had the inside track for the contract on the strength of its working with state officials in the planning of a request for proposals (RFP) for the work.

The email said that the evaluation of proposals was complete and that work under the contract is slated to begin on Monday, September 16.

The announcement cited five other states with full IT consolidation. These included Michigan, Utah, Colorado, New Hampshire and New Mexico. It also listed eight other states with limited IT consolidation: Alaska, Arizona, Kentucky, Massachusetts, Minnesota, Nevada, New Jersey and North Carolina.

The email, however, made no mention of the massive cost overruns experienced by several states in attempts at computer conversion and IT consolidation, including North Carolina, one of those put forward by the administration as an example:

  • North Carolina, one of the states cited as a model by the email has seen costs of a contract to modernize only one system, one to process the state’s Medicaid payments, go from the original $265 million to nearly $900 million;
  • California pulled the plug on its court computer system that was to connect all 58 of the state’s counties when the price tag leapt from $260 million to more than $500 million—with only seven courts using the system before the project was terminated.
  • Tennessee experienced repeated delays, missed deadlines and cost overruns and finally stopped work after seven years of development of its Vision Integration Platform (VIP). As is becoming more and more common with bad news, the announcement came late on a Friday in order to have minimal political impact. Tennessee also experienced problems with its much ballyhooed IT state projects that affected the Department of Children’s Services, the Department of Labor and Workforce Development and the state’s Project Edison payroll system. Tennessee Republican Gov. Bill Haslam, by the way, announced last April that all of the state’s 1,600 information technology workers would be required to reapply for their jobs.
  • A consolidated service and network support project was supposed to consolidate IT services for 20 state agencies in Wisconsin at a cost of $12.8 million but cost overruns ran the price to more than $200 million, wiping out anticipated savings.
  • In Virginia a 10-year, $2.3 billion contract with Northrop Grumman to consolidate the state’s computer systems has been an ongoing nightmare of cost overruns and missed deadlines

The email touted lower overall operating costs through leveraging volume procurement, elimination of duplication, data center virtualization and standardization of IT architecture statewide.

It also said the project’s approach strategies would include capitalizing on vendor experience in other states, phased approach to consolidation of staff, agency involvement in the process and effective communication with agency staff regarding consolidation goals.

Now that Deloitte has been chosen for the contract, the next steps, according to the DOA announcement will be the selection of a project team, education of the vendor on Louisiana’s IT infrastructure and operations, survey and assessment, development of a plan of operational changes, and the request of software and hardware inventory.

Nothing was mentioned in the approach strategies about impending layoffs of state employees but that is a near certainty given the track record of other privatization/consolidation schemes rolled out by the administration.

And while DOA assures us that 36 states were reviewed in reaching the decision to consolidate the state’s IT services, one has to wonder if any time was spent examining other states in an effort to determine the cause of massive cost overruns, delays and missed deadlines.

Or is this simply yet another program fronted by Gov. Bobby Jindal but being pushed by the American Legislative Exchange Council?

This is not to say IT consolidation is the wrong thing but with the state’s budget already in the tank, it seems that a more open discussion, more sunshine as it were, would be appropriate before plunging into something that could ultimately break the bank—and still leave us with an inoperative system.

Posted in ALEC, American Legislative Exchange Council, Computers, Governor's Office, IT, Privatization, RFP, Request for Proposals | 10 Comments »

Deloitte Consulting representative said to have boasted company has inside track for IT consolidation contract

September 4, 2013 by tomaswell

Ten companies have responded to that request for proposals (RFP) calling for the consolidation of information technology (IT) but because of the number of submissions, the scheduled awarding of the contract was moved back “seven to 14 days,” according to an email to bidders by Neal Underwood, assistant director of Statewide Technology.

One of the vendors being mentioned as the potential winner of the contract, expected to be worth millions of dollars, is Deloitte Consultants, one of three companies that met regularly with Division of Administration (DOA) representatives and state IT executives over the past year in discussions of what services they could provide the state.

Moreover, a confidential source said a Deloitte representative has already confided in several persons that the company “had a good shot” at winning the contract because it had been meeting with state officials over the past year.

That scenario evokes memories of the privatization of the Office of Group Benefits (OGB) a couple of years back. DOA brought Goldman Sachs in to help formulate the RFP for the privatization and the Wall Street banking firm was subsequently the lone bidder—at $6 million.

Goldman Sachs subsequently withdrew from the project in a dispute over indemnification but re-bid when the RFP was issued a second time. Blue Cross Blue Shield of Louisiana eventually landed the contract to administer the agency’s claims.

So now we have Deloitte working with state officials for a year to help formulate the RFP and the company is now said to have the inside track to winning the contract. Déjà vu all over again.

At least two other companies, including IBM, were said to have held meetings with the state in the months leading up to the issuance of the RFP. One of those reported to have attended those meetings was Northrop Grumman but that company was not one of the 10 companies submitting proposals, sources say.

Several other companies reportedly requested permission to attend the pre-proposal meetings but were denied the opportunity.

The meetings would seem to fly in the face of a July 19 memorandum from Richard “Dickie” Howze, interim state chief information officer, to DOA section heads and Council of Information Services directors in which he cautioned against any contact with potential vendors during the RFP process at the risk of possible termination.

“During this procurement process it is crucial that you and your staff do not have any contact with vendors who are potential proposers or who may be part of a proposals as a subcontractor regarding this RFP or other related RFPs,” the memo read.

Besides Deloitte and IBM, companies submitting proposals included Dell Marketing, First Data, Gabriel Systems, Information Services Group (ISG), KPMG, Peak Performance Technologies, RNR Consulting and Tecknomic.

Even though the RFP was only for “Information Technology Planning and Management Support Services,” the state wrote into the RFP that the vendor awarded the planning RFP would not be precluded from the implementation of the consolidation, in effect guaranteeing the winner of the planning contract the contract for implementation of the plans.

It also alluded to recommendations for “potential legislation to support effective implementation and administration” for “effective governance models for the statewide centralized IT services organization.”

It was not immediately clear why “potential legislation” would not have been addressed during the 2013 legislative session and prior to the issuance of the RFP as opposed to issuing a contract and then attempting to address legislative issues as they arose during the course of the contract.

In conjunction with the RFP, DOA also issued a request for information (RFI) for business reorganization (and) efficiencies planning and implementation consulting services which would seem to be an exercise in redundancy given the fact that a similar efficiency study was conducted during the tenure of former Commissioner of Administration Angele Davis and that yet another such study is already underway using Six Sigma methodology.

Six Sigma is a methodology that employs tools and techniques for process improvement. The concept was pioneered by Motorola in 1981 and is widely used in different sectors of industry.

Just as with the RFP for the planning and management support services, several vendors responded with proposals. Oral presentations, as with the RFP, however, were limited to a select few companies, including Deloitte, McKinsey & Co., Alvarez & Marsal and CGI Technologies.

McKinsey & Co. is primarily an organization offering internships to trainees for conservative political causes. Gov. Bobby Jindal, who seems hell bent on privatizing virtually every agency and service in state government, worked for McKinsey & Co. for less than a year in the only private sector job he has ever held.

The RFI required that vendors, among other things, present their approach/methodology to identify operational efficiencies, experiences in other governmental settings, and the areas of governmental services “that would produce the maximum benefit.”

Portia Johnson, executive assistant to Commissioner of Administration Kristy Nichols, sent an email to companies who submitted responses to the RFI. That email said:

“Thank you for your interest in RFI 107:01-000001238 Business Reorganization Efficiencies Planning and Implementation Consulting Services. Due to the vast response and in the interest of time, the State has chosen several vendors representative of the industry to interview. Although you have not been selected to proceed in the process, we have taken any documents submitted by you under advisement.”

Said another way: “You have been eliminated for consideration because we have other vendors with whom we prefer to do business. But we are going to go through your proposals and we will probably steal some of your ideas and you won’t get a dime for your efforts. Thank you for your trouble.”

  • CNSI and the federal investigation of its $200 million contract with the Department of Health and Hospitals (DHH) and the ensuing resignation of DHH Secretary Bruce Greenstein, who had maintained continued contact with his old bosses at CNSI during the bidding, selection and contract awarding processes;
  • Biomedical Research Foundation (BRF) and its inside track advantage by virtue of its CEO/President also serving on the LSU Board of Stuporvisors, which issued the contract to BRF to run the LSU Medical Center in Shreveport and E.A. Conway Medical Center in Monroe;
  • Goldman Sachs helping to write the RFP for the takeover of OGB and subsequently being the only bidder on the RFP;
  • Meetings between state officials and vendors for a year leading up to the issuance of an RFP for the consolidation of IT services in more than 20 departments within the state’s executive branch;

Folks, we’re beginning to detect a pattern here.

Posted in Computers, Contract, Contracts, Governor's Office, IT, OGB, Office of Group Benefits, Public Records, RFP, Request for Proposals, State Agencies, Transparency | 8 Comments »

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