How Cases of Legislator “Double-Billing” May Be Criminal Theft

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by Elliott Stonecipher

Elliott_StonecipherThe outstanding investigative journalism of Nola.com / Times-Picayune and partner WVUE Television into expense “double-billing” and other law breaking by some state legislators continues.  Now, WVUE’s Lee Zurik, Manuel Torres of Nola.com / Times-Pic and producer Tom Wright have provided details of a practice for which another official is currently being criminally prosecuted.

The latest installment in the continuing investigation explains a hidden source of unreported income to offending legislators.  The legislator pays expenses from his or her campaign account then turns in the expenses for reimbursement a second time from taxpayer funds via the legislature.

ethics_1Some in the media opine that perhaps these illegal acts should be investigated by our Ethics Administration.  I respectfully and strongly disagree.  Such might well prove an effective way and place to bury all of this. How these violations are not theft, to be prosecuted to the fullest extent of criminal law, is the question … along with how many other public officials are guilty.

Such double-billing and -payment of expenses led to the criminal indictment of BESE Board member Walter Lee by the DeSoto Parish District Attorney.  Lee’s double reimbursement was from one parish (DeSoto) and one state government (BESE) entity. (The original reporting was done by Vickie Welborn of the Shreveport Times, and is reported here by Nola.com’s Lauren McGaughy.)  Attorneys I have consulted note that the involvement of campaign donor money in these transactions may be a determinative legal difference. Another is whether or not an offending public official, after the second payment of the same expenses, immediately reimbursed the first. In some instances now reported to the public, these qualifiers are clearly moot, from the jump.

Ethis? Moral? DUH!
Ethics? Moral? DUH!

A specific example from the WVUE / Times-Picayne investigation perhaps makes the point, State Senator Rick Gallot.  Here is the journalists’ summary of his place in these latest discoveries:

The largest example of double dipping in the news organization’s latest review was $3,189 that the Senate reimbursed to Sen. Rick Gallot, D-Ruston, for travel, hotel and other expenses he first billed to his campaign for a 2012 trade mission to Panama, records show. Gallot, in a statement, said he used the Senate money after the trip to reimburse the campaign. But campaign filings with the state Ethics Board showed no evidence of the repayment. Gallot didn’t respond to a request for documentation of the reimbursement.

Attorneys I have consulted interpret the law, given those circumstances, as follows:

If the expenses have already been paid with campaign funds, then there is no expense to be reimbursed. You cannot be reimbursed for something that is not due. The State is being requested to pay an expense that is not due. That looks like basic Theft, (emphasis mine) R.S. 14:67, as follows:

Stealing_Democracy_acorn§67.  Theft

A.  Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

B.(1)  Whoever commits the crime of theft when the misappropriation or taking amounts to a value of one thousand five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

Gallot’s Particular Importance as an Offender

Gallot personifies the argument against involvement of the Ethics Administration since he, in 2008, played a crucial role in gutting that agency’s enforcement capability.  As a pro bono consultant to the Louisiana Ethics Board at the time, I can attest that his involvement had a particularly noxious result and effect.

It’s a "Gold Standard"...As Governor Bobby Jindal planned his “ethics gold standard” hooey for a special legislative session that year, he led a group of players which included his then Chief-of-Staff Timmy Teepell, Executive Counsel Jimmy Faircloth, and three legislators: then-Speaker of the House Jim Tucker (no longer in the legislature), then-Chairman of the Senate & Governmental Affairs Committee Robert Kostelka, and then-Chairman of the House & Governmental Affairs Committee Rick Gallot.

When the smoke cleared, legislators had passed, and Jindal signed into law, bills which meant enforcement of ethics laws, especially involving politically well connected violators, would be, at best, rare.  Two changes pretty much did us in.

First, the legal burden to find anyone guilty of an ethics violation was raised from a civil law standard — our ethics regime exists in Louisiana civil law — to one of criminal law.  Any notion that our ethics staff was trained or qualified to meet that criminal standard in civil law cases was and is ridiculous.  Second, the adjudication of violations of these laws was passed from the Ethics Board to administrative law judges.  These “ALJs” are controlled by a single unclassified state employee who may be fired at will by the governor.  In other words, adjudications, especially any which involve politically potent pols, can be controlled by any governor who elects to exert that pressure.

Worse yet, at the same time all of this law-making and passing was going on, Tucker and Gallot already had serious ethics complaints in the enforcement pipeline.  A separate law written earlier by legislators made it a crime for anyone to publicly report such complaints during their investigation.  By and with Jindal’s signature, these new laws neutered the case against Gallot.

Ethics GoldGiven the DeSoto Parish District Attorney’s current prosecution of Walter Lee, a claim that such malfeasance is not theft of taxpayer money should be discarded out of hand.  The only question, after all, is this …

… has Walter Lee been singled out for malicious prosecution, or — as I believe — are these practices by offending legislators exactly what honest women and men see immediately in the facts:  stealing from taxpayers.

— Elliott Stonecipher

Elliott Stonecipher’s reports and commentaries are written strictly in the public interest, with no compensation of any kind solicited or accepted.  Appropriate credit to Mr. Stonecipher in the sharing – unedited only, please – of his work is requested and appreciated.

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