Baton Rouge DA: We Can’t Prosecute The Crooks At The East Baton Rouge Council On Aging

Rather than offer much commentary on the report released today by the District Attorney’s office in Baton Rouge, we’re just including the whole thing in full and letting our readers sort out for themselves what it says. This report is in response to an audit by the Louisiana Legislative Auditor’s office, which earlier this year made six separate findings of wrongdoing by the thoroughly corrupt East Baton Rouge Council on Aging, most of them involving efforts to pass a referendum on an $8 million tax increase dedicated to its funding.

And here’s what the DA’s office in Baton Rouge said today…

DISTRICT ATTORNEY’S REVIEW OF LOUISIANA LEGISLATIVE AUDITOR’S REPORT ON EAST BATON ROUGE PARISH COUNCIL ON AGING

Background Facts

The Louisiana Legislative Auditor released a thorough and comprehensive report May 3, 2017, detailing its conclusions following an investigation of East Baton Rouge Parish Council on the Aging, and specifically its transactions with Support Our Seniors (S.O.S.), a political action committee formed to support a November 2016 tax proposition which would increase the Council’s public funding.  The Auditor noted findings in six areas, alleging that: (1) management and staff performed political activities during work hours; (2) the Council improperly donated funds to S.O.S.; (3) the Council used public funds to pay S.O.S.’s expenses; (4) the Council improperly used its postage permit on behalf of S.O.S.; (5) Council workers may have improperly received reimbursements from the Federal Emergency Management Agency following the August 2016 flood; and (6) the Council inadequately documented expenses made on an organization credit card.  The Auditor further suggested that one or more of these activities may have violated Louisiana criminal statutes.

Legal Analysis

Findings Four, Five and Six do not present subjects suitable for state criminal investigation. As noted in the Legislative Auditor’s report, issues concerning the use of the Council’s postage permit are, at best, potential violations of federal regulations.  It appears that, having been notified of the error, the Council has reimbursed the U.S. Postal Service.  A review of the documentary evidence collected in the finding regarding FEMA reimbursements reveals substantial confusion, on the part of both the Council and FEMA, about the proper procedures to be used in determining what payments were authorized and appropriate.  The FEMA coordinator ultimately noted that it was easy to work with the Council and that she did not believe the Council had tried to improperly receive reimbursements.  The Auditor, for its part, couched its findings in terms that reimbursement would be appropriate should FEMA determine that payments had been made to ineligible recipients.  FEMA has made no such finding.  In light of these facts, there is no sound basis for charging intentional criminal conduct, and the Council has since taken steps to tighten its policies.  The last finding, concerning documentation of credit card expenditures, is a matter of enforcing proper bookkeeping procedures and does not suggest any intentional criminal activity.

Concerning the first three findings, the Legislative Auditor’s report suggested that Council on the Aging activities ran afoul of La. R.S. 18:1465, relative to the prohibited use of public funds, which provides:

  1.  No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization.  This provision shall not prohibit the use of public funds for dissemination of factual information relative to a proposition appearing on an election ballot.
  2.  Whoever violates any provision of this Section shall be fined not more than one thousand dollars or be imprisoned, with or without hard labor, for not more than two years, or both.

This statute is part of the Louisiana Election Code, La. R.S. 18:1 et seq., a series of laws governing Louisiana election practices passed in 1976 and effective January 1, 1978.  While this particular provision has been on the books from the beginning, and has generated a series of Attorney General’s Opinions over the years regarding its scope and meaning, in its over forty years of existence there are no reported cases indicating that it has ever been used as the basis for a criminal prosecution.  This lack of criminal prosecutions over the years is likely directly related to the exception created in the statute itself, which does not prohibit the use of public funds for disseminating factual information, a factual and evidentiary hurdle that practically swallows the general rule.  Thus, to prosecute an individual under this statute, the State must affirmatively prove beyond a reasonable doubt that the individual intentionally expended public monies on behalf of a candidate or proposition for purposes other than, or unrelated to, the dissemination of factual information.

The first finding, based on documentary evidence, alleges that political activity was performed during work hours.  The Council responds that its workers were aware of the prohibitions against performing political activity on public time and worked extra hours to account for time spent on these activities.  To support a prosecution, the State must affirmatively demonstrate a violation beyond a reasonable doubt.  The Council does not have to prove that it spent time appropriately—a criminal prosecution requires the State to prove the time was spent inappropriately, and not made up elsewhere.  The allegations are supported by documents obtained from the Council, including staff emails, but no surveillance was performed to account for the time of Council officers and staff, who may well have spent additional hours at work to complete all of their tasks.  The nature of the documentary evidence, and lack of countervailing physical evidence, results in the State lacking sufficient evidence to show otherwise.

The second and third findings concern the Council’s relationship with the PAC created to support the Council’s goal of passing a tax to support its activities.  It cannot seriously be disputed that the Council was lax in separating funds to be used for Council purposes and political purposes, a fact that the Council’s response to the audit acknowledges.  Two problems present themselves here for a successful criminal case.  First, the use of funds as noted by the audit was arguably to support the dissemination of factual information, the exception that makes otherwise prohibited expenditures of public funds, if not the most prudent use of such monies, at least not criminal in nature.  Second, as noted above, the State would be required to prove that the use of public monies was intended for a purpose unrelated to the dissemination of factual information.  The complained of activity: flyers, ads in the Council’s magazine, a rally, and other activities cannot be said to fall outside this rather broad exception.

Finally, to the extent that the relationship between the Council on the Aging and S.O.S. constitutes issues related to election campaign finance, the Election Code’s regulatory scheme places oversight with the Board of Ethics, which exercises broad authority to conduct investigations and levy fines or pursue other civil remedies, with a burden of proof substantially below that required in a criminal prosecution, La. R.S. 18:1481 et seq., 18:1511.1, or, should the results of the investigation warrant, to forward cases to the district attorney for criminal prosecution.  La. R.S. 18:1511.6.  While a complaint concerning these same allegations regarding the Council and S.O.S. was addressed to the Board of Ethics, the Board has not publicly announced any enforcement action, nor has it forwarded the case to the District Attorney, suggesting that no violation worthy of criminal investigation was found. Where the body with the primary regulatory responsibility and expertise in the field at issue declines to act, it is difficult for a criminal body to sanction the same activity, as the Council is provided with an extraordinarily cogent argument in its defense.

In sum, the State lacks sufficient evidence to prove beyond a reasonable doubt that the Council on the Aging or its officers committed any potential crimes referred to in the Auditor’s report.

 

November 8, 2019

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