Louisiana Voice: Appointee Above the Law!

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Louisiana Voice-Btnby Tom Aswell

Our friend C.B. Forgotston was first to point out the apparent violation when the Louisiana Department of Children and Family Services (DCFS) hired a legislative liaison and agency advocate/lobbyist. Article Here

Circular Logic of Ethics
Circular Logic of Ethics

Now, LouisianaVoice has come upon a recent opinion by the Louisiana Board of Ethics in Absentia (formerly known simply as the Board of Ethics before Gov. Jindal set the “gold standard of ethics” when he gutted the board’s powers a month after taking office in 2008) which would seem to validate Forgotston’s cynicism.

The Baton Rouge Advocate published a brief, five-paragraph story a week ago (March 10) in which it announced that the Department of Children and Family Services had hired a new legislative liaison in the person of Dave Pearce at a salary of $75,000 a year.

How can I get that job?
How can I get that job?

Pearce, who previously worked as assistant director of constituent services in Jindal’s office (yes, they’re bailing out over there), moved into the unclassified position where he will serve as “executive lead on all federal and state legislative matters for DCFS,” the Advocate said.

But the most revealing part of the story was contained in the last paragraph in which the newspaper pointed out that documents submitted to Civil Service indicated that the position serves as a lobbyist and advocate on behalf of the DCFS.

Forgotston was quick to point out say that Pearson is in violation of two state laws, assuming the newspaper account is correct. He cited two statutes to support his position:

  • La. R.S. 24:56(F) provides: No state employee in his official capacity or on behalf of his employer shall lobby for or against any matter intended to have the effect of law pending before the legislature or any committee thereof. Nothing herein shall prohibit the dissemination of factual information relative to any such matter or the use of public meeting rooms or meeting facilities available to all citizens to lobby for or against any such matter. (Emphasis Forgotston’s.);
  • What about NO don't you understand?
    What about NO don’t you understand?

    La. R.S. 43:31(D) provides:   No branch, department, agency, official, employee, or other entity of state government shall expend funds of, administered by, or under the control of any branch, department, agency, employee, official, or other entity of state government to print material or otherwise to urge any elector to vote for or against any candidate or proposition on an election ballot nor shall such funds be used to lobby for or against any proposition or matter having the effect of law being considered by the legislature or any local governing authority. This provision shall not prevent the normal dissemination of factual information relative to a proposition on any election ballot or a proposition or matter having the effect of law being considered by the legislature or any local governing authority. (Emphasis Forgotston’s.)

Playing for ethics
Who pays for ethics?

“In other words, no state employee shall lobby nor shall any public funds be used to lobby,” he said.

Jindal, with the sage legal counsel of Jimmy Faircloth, might well respond with the classic line, “I understand the situation but I don’t see the problem.”

Well, we did a little checking of our own and found that even though lobbyists are required to be registered with the Board of Ethics Emeritus, Pearce’s name is nowhere to be found on the lengthy roster of state lobbyists.

Right-Wrong?
Right-Wrong?

And then, we did a little more digging and found a fairly recent opinion of the Bored of Ethics that addresses that very scenario. (We’re being a bit unfair to the Ethics Board because it was Jindal’s legislation in 2008 that removed the board’s enforcement powers, thus reducing its status to that of an advisory board only.)

In a Sept. 24, 2013, two-page letter to Brian Begue, legal counsel for the Louisiana State Board of Dentistry (LSBD), ethics staff attorney Aneatra P. Boykin responded to a number of questions posed by Begue:

  • Are (dentistry) board members considered state employees under state law?
  • Are state employees and public servants considered the same?
  • What is the effect of state statute which defines public employees as board officers and its employee(s)?
  • What is the effect of state statutes which sate that employment does not include appointed officials?
  • May the members approach their own legislators regarding legislation affecting the practice of dentistry or dental hygiene?
  • May (board members) approach their own legislators regarding legislation having nothing to do with the regulation of dentistry or dental hygiene?
  • Must (board members) register as lobbyist(s) if the answer to the questions is in the affirmative?

“The (Ethics) Board concluded and instructed me to advise you that the lobbying laws under the jurisdiction of the Board of Ethics apply to members of the Dentistry Board,” Boykin said. She said state statutes provide “that no state employee in his official capacity or on behalf of his employer shall lobby for or against any matter intended to have the effect of law pending before the legislature or any committee thereof.”

She further said state statute “defines ‘public employee’ to include anyone, whether compensated or not, appointed by an elected official to a post to serve the governmental entity or an agency thereof or anyone performing a government function” and that a section of that same statute “defines public servant as a public employee or elected official.”

Members of the LSBD—and members of any other board appointed by the governor—are state employees under state law.

Accordingly, “Dentistry Board members may not have any direct communication with legislators regarding legislation affecting the practice of dentistry or dental hygiene or any other matter intended to have an effect of law pending before the legislature,” she said.

Nothing prohibits board members from disseminating factual information relative to dentistry or dental hygiene, she added.

So, if those same standards are applied to Pearce, he could have a definite problem in carrying out the duties of his new position.

But Forgotston, never one to leave his flank unprotected, has an answer for that as well, even if his suggestion is offered with tongue planted firmly in cheek:

“In the past, we know that Jindal appointees often believe that they are above the law. Without any repercussions, they have failed to follow laws such as having valid La. driver’s licenses, having Louisiana license plates on their personal vehicles and payment of the Use Tax on vehicles brought into Louisiana from other states.
Solution:

  • A legislator should file and pass legislation during the 2014 Regular Session to repeal the above two provisions of the law.

Problem solved.

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