This article was produced in partnership with The Advocate, which is a member of the ProPublica Local Reporting Network in 2018.
It’s been nine years since the Louisiana Ethics Board first took up what its former chairman called “the most egregious case” to ever come before him.
In 2010, the board accused former state Sen. Robert Marionneaux Jr. of failing to disclose to the board that he was being paid to represent a company in a lawsuit against Louisiana State University. The lack of transparency was only part of the problem. Marionneaux offered to get the Legislature to steer public money toward a settlement, according to charges the Ethics Board later filed against him. The money would also help pay off his contingency fee, which an LSU lawyer pegged at more than $1 million.
Marionneaux, a Democrat from Maringouin, outside Baton Rouge, has denied wrongdoing and has filed multiple lawsuits saying the board lacked the authority to target him.
The case is pending, and Marionneaux hasn’t been punished. The Ethics Board is set to discuss the matter again in executive session on Thursday.
Watchdogs and ethics advocates say the glacial pace of the Marionneaux case and its limited scope exemplify the weaknesses of Louisiana’s ethics enforcement apparatus.
In 2008, the Legislature delivered ethics reforms that then-Gov. Bobby Jindal billed as a new “gold standard” that any state would covet. But more than a dozen people involved in the system said in interviews that the reforms have done the opposite, chipping away at and dragging out ethics enforcement.
The flaws in the system are particularly pronounced when legislators catch the attention of the Ethics Board, which polices conflicts of interest among state and local officials of all types and oversees campaign finance.
Since the 2008 reforms, just six legislators — Marionneaux included — have faced ethics and campaign finance charges or entered “consent opinions,” akin to plea deals.
Only one person interviewed for this story said the reforms had delivered the lofty standard Jindal promised: Jindal’s former executive counsel, who helped shepherd their passage. Jindal has not responded to requests for comment made through the Washington Speakers Bureau, which represents him, and through his former chief of staff.
Former Ethics Board Chairman Frank Simoneaux, an ex-legislator who served on the board for four years until 2012, said he was shocked to learn from a reporter that Marionneaux’s case is still unresolved. “I would classify it, and the board did also classify it, as the most egregious case we had seen,” he said.
Since its filing, the case has pingponged among administrative, district and appeals courts, and the files have mushroomed to more than 1,000 pages. Today, the scandal is a distant memory, and Marionneaux has been out of office so long that his successor is nearing the end of his second four-year term.
The slow pace of ethics cases isn’t the only indication that changes to the ethics rules may have created more loopholes than they closed. Last year, The Advocate and ProPublica documented how legislators found ways not to disclose public money that their private firms received; pushed bills that benefited their own businesses and those of their relatives and clients; and lobbied their old colleagues when their terms ended. But none of those actions violate state ethics laws.
Reached by phone at his Port of Greater Baton Rouge office, Marionneaux declined to comment. He said that he would not discuss the case during litigation, and that he could not talk while he was on “port time.”
Marionneaux’s attorney, former Ethics Administrator Gray Sexton, also said he would not discuss the specifics of the case. But he said he hopes to resolve the Ethics Board’s concerns and to have its actions against Marionneaux dismissed.
“I’m absolutely confident that if we go forward with this matter in district court, Sen. Marionneaux will be exonerated,” Sexton said.
It’s nearly impossible to measure how the state’s handling of ethics concerns has changed since the 2008 reforms. For starters, the Ethics Board doesn’t keep numbers on its caseload before 2008. And the rule changes, which were substantial, could have had an effect on which cases, and how many, it was asked to consider.
However, the data that does exist shows that the number of matters referred to the Ethics Board for investigation spiked in the years following the 2008 reforms, possibly as those required to fill out new forms adjusted to the rules.
The number of ethics investigations, meanwhile, has held fairly steady, at between 100 and 200 per year. (This figure excludes campaign finance investigations.)
But in recent years, the number of charges filed by the board has fallen precipitously. There were 140 charges filed in 2013, but just 20 last year.
That’s a drop of 86%.
Moreover, most of the 20 cases were against local officials. Some were flagrant conflicts of interest, like a school clerk who transferred $14,806 in school funds to her personal account. But the board also filed charges for such low-level offenses as substitute bus drivers not completing ethics training.
Some people admit their wrongdoing and agree to pay fines through consent opinions, which can be reached before or after charges are filed.
“We knew that Bobby Jindal was about to do the opposite of what he was saying,” said Elliott Stonecipher, a Shreveport-based political consultant who used to advise the Ethics Board. “We were watching a trainwreck on its way.”
The downturn in enforcement happened even though Jindal’s reforms more than doubled the Ethics Board’s budget from nearly $2 million to more than $4 million annually and increased the number of full-time employees from 23 to 39.
Funding and staffing have stayed roughly the same since then, and Ethics Administrator Kathleen Allen said the extra employees are needed to handle paperwork filing requirements added in 2008.
Ethics Board members who’ve served since the reforms questioned why enforcement is so weak after changes that were supposed to improve Louisiana’s oversight. Scott Schneider, a Jindal appointee to the Ethics Board who served from 2008 to 2013, said it seemed easier for ethics officials to focus their attention on venial sins committed by minor players, rather than powerful targets that could also pose greater challenges.
“What it felt like was the goal was to go after the lowest-hanging fruit possible,” Schneider said. “It was never staffed with the idea that we’re going to go actively investigate and look for more serious ethical breaches.”
Marionneaux’s case stands out both for its lifespan and for the seeming gap between the serious misconduct of which he was accused and the mild nature of the charges filed against him.
The former senator got in trouble for his involvement in a dispute between Bernhard Mechanical Contractors Inc. and LSU over a power plant that Bernhard built on campus. The two parties sued each other, and in 2009, Marionneaux set out to craft a settlement.
Marionneaux invited both the president and chancellor of LSU to a meeting that typically would have only included attorneys.
In a Senate conference room, he laid out the plan: LSU would pay Bernhard $7.15 million to settle; the state would chip in another $5.5 million even though it was not a party to the suit. Marionneaux commanded enough influence to make that happen: He was chairman of the Senate Revenue and Fiscal Affairs Committee. Marionneaux stood to earn at least $1 million from his contingency fee, paid for with public dollars, according to Raymond Lamonica, LSU’s general counsel at the time, who rejected Marionneaux’s proposal.
“A non-lawyer legislator couldn’t get away with this,” said Lamonica, a former U.S. attorney for Louisiana’s Middle District. “Just think of a legislator who says, ‘I’m going to get an appropriation for $5.5 million to give to a constituent who’s going to give me a part of it for doing such a good job.’”
In contemporaneous emails, LSU’s former Chancellor Michael Martin and then-system President John Lombardi traded concerns about whether the Legislature might cut LSU’s funding because the university had not agreed to Marionneaux’s proposal. LSU settled the suit in 2010 by taking ownership of the power plant to eliminate maintenance fees and agreeing to pay Bernhard $9.6 million over four years. A company spokesman declined to comment.
Lamonica said LSU did not meet with Marionneaux again after the meeting at the Capitol, and that he did not believe Marionneaux received a contingency fee.
Two months before the Ethics Board charged Marionneaux, he sponsored an amendment to a bill that would have changed the disclosure requirement the board was considering using against him. The bill failed.
“The irony is that as a profession, the lawyer/legislator should have a higher standard of ethics and responsibility to the public than a non-lawyer legislator, not a lower standard,” Lamonica said.
Before the Jindal-era ethics laws took effect, lawmakers were occasionally disciplined for conflicts of interest.
Take the case of Charlie DeWitt, speaker of the Louisiana House of Representatives from 2000 to 2004. DeWitt proposed unsuccessful legislation in 2003 that would have helped the New Orleans Fair Grounds derive more money from a video poker formula. The Fair Grounds’ owners had previously given him a share in two race horses, named Voodoo Princess and Noinbetweeners, and DeWitt had a long history of pushing legislation that helped the racetrack, including bills to allow the Fair Grounds to add slot machines.
Less than a year after he came under scrutiny, DeWitt entered into a settlement with the Ethics Board. The deal cited him for accepting improper gifts, but it cleared him of improperly favoring the Fair Grounds. He agreed to pay a $5,000 penalty.
He now says he took the deal because it was expedient.
“To tell you the truth, the fine is cheaper than hiring attorneys,” DeWitt said in a recent interview.
Even so, DeWitt said he believes the ethics system in Louisiana is now worse than it’s ever been.
All but one Ethics Board member signed a letter on March 3, 2008, that implored Jindal to veto a key piece of the “gold standard” legislation that curbed its powers, saying the board was “an apolitical body whose authority, in our opinion, became a political target.”
A few months later, Ethics Board members resigned en masse in protest of the new system and predicted that ethics enforcement would be weaker and more cumbersome.
“I remember being taken aback that, as an Ethics Board member who had served for several years, we weren’t involved in the discussions,” said Gwen Hamilton, who was the first of 10 board members to resign in 2008. “The reform added another bureaucratic process to a process that already existed.”
Jimmy Faircloth, Jindal’s executive counsel at the time of the reforms, said in a recent interview that the outcry from by Ethics Board members underscored the need to curb their authority. Faircloth, who represented the Jindal administration in a number of high-profile lawsuits, including one challenging the governor’s private-school voucher plan, stood by Jindal’s ethics program.
“These aren’t legislators, they don’t make law, they don’t even make ethics code provisions,” Faircloth said. “They enforce them. They don’t make the law. And the fact that they say, ‘We’re outraged because we’re not making the law,’ demonstrated the proof of the conflict.”
On top of the effect of the reforms themselves, courts have also played a major role in shielding legislators from scrutiny — though lawmakers have done almost nothing to counteract the court’s carveouts.
In one key case, legislators Alex Heaton and Jeff Arnold were accused of violating ethics laws by writing and supporting bills to protect their family members’ jobs as elected New Orleans assessors. They argued that the Louisiana Constitution prevented the Ethics Board from penalizing them for that.
In May 2008, the First Circuit Court of Appeals sided with Heaton and Arnold, ruling that the Ethics Board could not punish the lawmakers’ actions taken within the “legitimate legislative sphere” because the Louisiana Constitution protects legislators from facing arrest or questioning for their speech. That meant lawmakers were free to write and advocate for bills in which they and their close relatives have “substantial economic interests.”
“That’s an example of the rulings by the courts that tend to check the aggressiveness of the Ethics Board,” said Terry Ryder, who was executive counsel to former Gov. Kathleen Blanco and special counsel and deputy chief of staff to former Gov. Mike Foster.
Courts have also neutered the Ethics Board when it comes to holding elected officials accountable for spending campaign money on certain personal items, like football tickets. When the Ethics Board filed a lawsuit in 2012 over former East Baton Rouge Mayor-President Melvin “Kip” Holden’s campaign spending, for instance, the courts sided with Holden. He had donated campaign money to a constituent’s funeral, to an ambassador program and to an educational trip for a councilwoman’s daughter.
The First Circuit ruled in 2013 that a lack of clarity about the definition of “personal use” for campaign funds meant Holden’s spending was, “in the broadest sense, related to the holding of public office.”
Jindal’s ethics laws were supposed to make the adjudication of charges speedier as well as more professional, by outsourcing the role to the Division of Administrative Law.
Instead, those changes have slowed the process dramatically.
Under the 2008 reforms, once the ethics board files charges in a case, people can contest them at the Ethics Adjudicatory Board. Whatever happens there can be appealed by either side at district and appeals courts. Ethics cases are unique in that rulings on motions filed before an administrative trial can be appealed, unlike other administrative law proceedings.
It can take a long time, and often does.
Of the seven cases the Ethics Adjudicatory Board resolved last year, it took a median of nearly four years between the filing of charges and a final ruling. At one of the most recent Ethics Adjudicatory Board hearings this May, defendant Ralph Johnson complained, “this has been ongoing for seven years; I think it’s a waste of this panel’s time and a waste of the state’s resources.”
Johnson served on Baton Rouge’s Alcoholic Beverage Control board while he was executive director of a community association. The Ethics Board in 2012 charged that he cut a side deal with a business to pay money to the community association while the business was seeking a liquor license. He denied wrongdoing at his hearing, and the panel has yet to issue a ruling.
Taking final decision-making away from the Ethics Board was intended to create more due process for people under investigation. But both sides — and even Faircloth — agree that cases need to be resolved quickly, preferably while the public still remembers them.
“When a final decision is made down the road, anybody who might have been very interested in it two years earlier might not be watching,” said Ryder, who worked for two governors. “And we lose the value of everybody getting answers and encouraging compliance.”
Some officials now question the Ethics Board’s authority to charge them, rather than argue against the facts of the case.
That’s been Marionneaux’s strategy: He has repeatedly challenged the Ethics Board’s standing. Even if he loses that gambit, Marionneaux’s case will join a long queue of cases awaiting hearing by the Ethics Adjudicatory Board. Sexton acknowledged that Marionneaux’s case is representative of how the system works now.
“When the Ethics Board lost the power to adjudicate, it resulted in a lengthy and expensive resolution process,” he said.
These days, Marionneaux is the Port of Greater Baton Rouge’s director of governmental affairs and outreach, which pays him $165,360 annually, on top of his law practice. And he remains active in politics: He was part of an entourage that visited Cuba with Gov. John Bel Edwards in 2016 on a trade mission, and he sometimes hangs out with the governor at Saints games.
If the district court does rule on Marionneaux’s ethics case, it could also affect a second unresolved ethics charge against him. That case, dating to 2012, alleges the then-senator failed to disclose he represented a woman in a lawsuit against the state’s Department of Transportation and Development.
For those who have filed complaints about Marionneaux, the former senator is Exhibit A in a lopsided system of justice.
“You need to resolve these things if the public is going to have trust in the system,” said Richard “Jerry” Dodson, who represented Marionneaux’s former law partner, Lewis Unglesby, when the pair’s practice split and a judge ruled in 2014 that Marionneaux improperly took $1 million from him. Marionneaux denied at the time that he had done anything wrong, but Dodson said Marionneaux has paid back the money.
“Just because you serve in the Legislature, does that give you a free pass for everything you do in the future?”