Slippery Business IV - HCDC Violates Open Records Laws

Slippery Business IV
Judge Rules HCDC Violated Open Records Laws
Filed 2/12/04

By Keith Burton – GulfCoastNews.com

More troubles for the Harrison County Development Commission. This time a Harrison County Chancery Judge has ruled that the Commission violated the state’s laws regarding public records.

As a result of the ruling, the HCDC is to turn over within 30 days numerous records, including financial records connected to the Commission's director, Michael Olivier. These records include credit card receipts, Olivier’s salary details and reimbursements, and payments made to Olivier. The judge also found that the HCDC had destroyed some records after the lawsuit was filed where such records were part of the information in question in the lawsuit.

The ruling, issued Wednesday, Feb. 11th, by Chancery Judge James Persons, came as a result of a lawsuit initially filed in 2000 by the HCDC and F.E.B Distributing Inc. against Pass Christian resident Henry “Tut” Kinney.

The lawsuit was filed by the HCDC in response to numerous public records requests by Kinney. The HCDC and F.E.B. had sought a ruling saying they had fulfilled their obligations to provide the records. Kinney in turn, filed a countersuit saying they had not. Kinney was represented in the lawsuit by Gulfport attorney Reilly Morse.

F.E.B. was in the suit asking the court to rule that the documents on the transaction were confidential
commercial information and not subject to disclosure. Kinney had sought records on a land arrangement between FEB and the HCDC.

Kinney, who is an attorney whose office is in New Orleans, became interested in the HCDC in 1999 when the Commission helped establish a controversial aggregate distribution plant in the Long Beach Industrial Park that nearby residents said was noisy and inappropriate for the area. Residents later created CARD, or Citizens Association for Responsible Development Inc. in which Kinney is a member. Kinney then started attending HCDC meetings and requesting documents and became to the HCDC, a thorn in their side.

So much a thorn that the Commission, specifically its Director Michael Olivier, set out to thwart Kinney’s document requests by enacting an expensive fee for Kinney and told him that he would have to pay $65 an hour for the staff to get the documents. The judge ruled that the fee was improper. The judge said the HCDC's board never approved of the fee and state statutes do not authorize an employee of a public body to establish the costs for the public to have access to the documents.

“The Court finds and holds that requiring Kinney to advance an unspecified sum described as the cost of staff computed at a rate of $65.00 per hour is tantamount to the wrongful denial of Kinney’s request to inspect the documents….,”said the judges ruling.

Among the records Kinney wanted were credit card receipts showing entertainment purchases by Olivier and the Commission. In those receipts, the HCDC first concealed the names of people entertained. The judge ruled that the names will have to be revealed. Olivier had argued in court that such information was confidential, but “No such confidentiality agreements were introduced into evidence nor was there evidence that any of the prospects were advised by the HCDC of Kinney’s record request,” reads the judge’s ruling.

“The names of the persons entertained by Olivier in the course of his employment by HCDC and for which he was reimbursed cannot be considered as information of a proprietary nature belonging to Olivier,” said the judge.

In Kinney’s counterclaim, he sought the court to charge the HCDC for violating the state’s open records laws and for court costs. In both cases the judge ruled in Kinney’s favor. The fine, a ridiculously small $100 maximum will be accessed against the Commission. The HCDC will also pay for Kinney’s legal fees of $8,160.

While the costs may be low, the implications are huge and further disclosures will no doubt surface soon. The case may have also set a big precedent for all public bodies regarding open records, especially development agencies, which are known to operate in secrecy. That such agencies are vulnerable to lawsuits for concealing or preventing public record access to individuals that request them.

The HCDC by law had to ask F.E.B. Distributing to become involved in the lawsuit since some of the records Kinney was requesting dealt with the HCDC’s activity with F.E.B. State laws do protect proprietary information from public records laws but only at the request of a company, not a development commission.

Part of what is next will land in the hands of the Harrison County Board of Supervisors. Over the past several years, Supervisors Connie Rockco and Marlin Ladner have sought to make reforms at the HCDC only to be blocked by the other three board members and powerful special interests. More on this part of the story to come in the future. But the HCDC is only one of the county’s commissions that have been looked at so far. Rockco and others say the time for reforming all of the county’s various commissions is well overdue.

GCN readers will recall that the issues of improper recordkeeping, and lack of proper procedures were part of several articles published first and exclusively on GulfCoastNews.com written by former HCDC Commissioner Paige Gutierrez last summer. That was followed by another opinion article jointly written by Gutierrez and Commissioner Richard Bennett. Since that time, GCN has carried numerous articles on the HCDC under the Slippery Business headline, including reports by other news media and additional GCN Guest Opinion articles.

A big question that now becomes part of the story is where are the State Auditors? Since last spring investigators with the State Department of Audit have been in and out of the HCDC offices, but there has been no official report on their activities, why not?

Guest Opinion - Out of the Darkness - A Call for Accountability at the HCDC - by Reilly Morse

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