Clerk of court ordered to pay fees, penalties for public records violation

By KTBS Staff

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    MANSFIELD, Lousiana (KTBS) — The DeSoto clerk of court has been assessed over $15,000 in attorneys’ fees and civil penalties for violating the state’s public records law.

DeSoto District Judge Nick Gasper said Clerk Jeremy Evans must pay $10,648 in attorneys’ fees and cost of litigation plus $4,600 in civil penalties.

Coy Fortenberry, a LSU student who filed the records request, was pleased with the outcome.

“Today was a big win for the parish of DeSoto for accountability and transparency in their governmental offices. It’s a shame that this was a 5-month ordeal, and it ended up costing the taxpayers around $15,000 for something that could have cost $113 from my end. And I’m just so happy that the court ruled in my favor today and I’m very blessed,” Fortenberry said.

Evans’ attorney, Kenny Haines, said he will appeal the ruling.

In a statement through his attorney, Evans said he was surprised by the ruling. “We hope to seek our relief in the 2nd Circuit Court of Appeal and receive a more favorable ruling from the appellate court.”

Gasper’s decision in a less than hour-long hearing Wednesday hearing resulted from testimony presented Friday. Gasper gave Evans until today to hand over some of the records that were not included in Fortenberry’s records request.

Fortenberry filed the request in March seeking information such as office expenses, employee salaries, travel expenses and entertainment, outreach expenses, donations, advertising and legal fees. Fortenberry said he was given dates when the records would be ready, but they were not. He did not receive the information until after filing his lawsuit on June 26.

Then the records given to him on July 14 were not complete, he said. Names of the clerk’s office’s employees were redacted and six months’ worth of financial information was missing from some of the categories.

Haines gave Fortenberry an unredacted list of employees and their salaries at day’s end Friday. The rest of the information was compiled and sent by email to Fortenberry and his attorney, John Castille, Tuesday afternoon.

The Louisiana Public Records Law allows for the payment of attorneys’ fees and civil penalties for those found in violation.

“The clerk did not comply,” Castille said today.

Haines maintained Fortenberry wasn’t denied because he could have reviewed the records in person. Gasper said that’s not part of the law.

Haines said the clerk’s office did not produce the records for Fortenberry until payment was made. He also said there was one category – outreach donations — where no records were provided and that’s because they don’t exist.

Castille argued Fortenberry could not pay because he was never told how much the records cost. And he never went in person to review the records because he was not given a date when they would be ready.

‘POLITICALLY MOTIVATED’

Gasper prefaced his ruling by saying sitting in judgment of another public official was not something he wanted to be doing. That said, Gasper said the public records law is clear.

It was established in testimony Friday, he said, that Fortenberry requested the records on March 6. He should have been given a response by March 13.

There was some email correspondence with Evans’ office, but it did not include the cost of the records. And Gasper said nothing in the law required Fortenberry to keep checking with the clerk’s office.

“The ball was in the clerk of court’s office and the ball didn’t make it back to Mr. Fortenberry until later,” Gasper said.

A public records request has deadlines and is time sensitive, Gasper said. So, there was no valid reason for the delay.

Gasper said Haines did take responsibility for receiving the records from Evans’ CPA and having them in his office. But then he moved office locations.

“Is that a valid reason?” Gasper asked about the delay of almost two months.

But he concluded it wasn’t since Evans had a second attorney, Ron Miciotto, also on retainer.

It was only after Fortenberry filed suit that “things started rolling.” But it still took two weeks to get the records in his hands, Gasper said, and that’s why he was forced to hire an attorney and incur expenses.

And while Gasper said there was no evidence of damages in the testimony, he did find civil penalties appropriate since there was no reasonable explanation why it took from May 8 to July 14 to deliver the records.

Gasper did take note there was a lot of time spent Friday directing attention to two people – Lisa Lobrano Burson, who is challenging Evans, and Scott Wilfong, the campaign manager for Dean Register, who is also a candidate – and to any connections to Fortenberry.

“So what. … That is not a reason to withhold records,” said Gasper.

But it points to the belief the delay was politically motivated, Gasper said. “There is no valid explanation.”

APPEAL TIMELINE

Haines said it’s likely an appeal won’t be decided before the Oct. 14 clerk of court election.

Haines will file a suspensive appeal, which requires a bond to be posted and it prevents the execution of the court judgment until the appellate court hears the case.

The appeal can’t be filed, however, until Gasper puts the judgment in writing, which will be next week. Then a transcription of the hearing will have to be prepared.

The normal timeline is 45 days from when a judge signs the order to the granting of the appeal. After that, each side has additional time to file briefs and replies.

“I would doubt seriously this case gets heard or docketed before the election,” Haines said.

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