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Thursday, December 20, 2012

OPP consent decree: Gusman wants $5 increase in per diem payments [UPDATED]

Posted By on Thu, Dec 20, 2012 at 5:17 PM

Orleans Parish Sheriff Marlin Gusman has filed a motion in federal court requesting that the city's per diem payments to the Orleans Parish Sheriff's Office be readjusted to reflect inflation. The current rate, $22.39 per Orleans Parish Prison inmate per day, was set in 2003, pursuant to a settlement in federal court case Hamilton v. Morial (opened in 1969 as Hamilton v. Schiro).

The 2003 settlement provided that the sheriff's office couldn't challenge the rate until the end of 2005. A 2008 court ruling dismissed most of Hamilton — as requested by both the sheriff's office and the ACLU, which represented the plaintiffs — but kept in place the financial agreements.

Hamilton was reopened last month in the midst of another lawsuit, Jones v. Gusman, that appears likely to result in the implementation of a federal consent decree for the jail. Gusman initially requested a "modification" to the rate. But today, he specifies what that modification might be.

(More after the jump)

Here are the relevant paragraphs:

Paragraph 6 of the [2003] Settlement Agreement provides that until December 31, 2005, neither the Sheriff nor the City would file any motions to increase or decrease this $22.39 housing and board per diem. That date lapsed nearly seven (7) years ago, but the $22.39 housing per diem remains in effect.

Since July 1, 2003, the Consumer Price Index has increased by 25.19% through November 2012. If this increase were to be applied to the original per diem, it would increase to $28.03.

City Hall anticipates an average daily inmate count of about 1,950 in 2013. So a $5.64 per diem increase would cost more than $300,000 in added funding per month. Based on recent developments, the city seems likely to object to this request. (See update below)

The filing goes on to say that any modification to the rate would only be in effect until Jones v. Gusman — the consent decree case — is complete. Judge Lance Africk has scheduled two trials in that case. One, to begin in February, will focus on the conditions in OPP and reach an agreement (maybe the one that's already been drafted). Another, beginning in April, will determine the jail's funding needs.

This Amended and Restated Motion seeks only an adjustment in the housing and board per diem pending a definitive judgment regarding such funding in the matter of Lashan Jones v. Gusman, et al, EDLA No. 2:12-cv-00859, now pending in Section “I” of this Court.

WHEREFORE, the Sheriff prays that after the evidentiary hearing already scheduled herein for January 16, 2013, this Court enter an Order in conformity with the evidence adduced therein compelling the City to pay to the Sheriff an increased housing and board per diem which reflects an adjustment equal to the increase in the Consumer Price Index from July of 2003 through November of 2012, such adjustment to remain in effect until rendition of a definitive judgment in the Lashan Jones case identified above.

A hearing on the proposed per diem rate modification has been set for January.

Read Gusman's motion: GusmanMotion.pdf

UPDATE (5:17 p.m.): The city has filed a motion requesting that Gusman not be allowed to present any expert or factual testimony during the January 16 hearing on the rate.

The reason is that Gusman has thus far failed to live up to the discovery schedule set by the court. Court filings show that Gusman was supposed to produce an expert report on his funding needs by Dec. 17. The city also asked for budget information dating from 2006 from the sheriff's office, a public agency, so it might get an idea of the office's current and recent budget needs and how it has been using its public dollars.

Among the city's completely unreasonable requests, from today's court filing:

...the City requested the Sheriff to produce audits of his office (Request No. 4); budgets and draft budgets he prepared (Request No. 5); documents evidencing the cost of housing inmates (Request No. 6); documents regarding the Sheriff's so-called 'Fund' (Request No. 8); invoices from professionals (Requests No. 10 and 11)...

But the sheriff's office, a public agency that receives city, state and federal tax dollars, objected to the discovery requests, calling them "overly broad" and "irrelevant." And, the objection says, they would place a burden on the already overburdened office.

It reads, in part:

In addition to the broad and irrelevant time span for which documents are sought, the nature of the documents requested by the City encompass essentially every document generated or received by the Sheriff. Included in the City’s ninety (90) requests are: all documents pertaining to the booking, charge, and release of every inmate booked since 2006 (which would consist of complete inmate folders of over three hundred fifty-one thousand (351,000) individuals), as well as every document evidencing the cost of medical care provided to each and every of those individuals ...

Gusman also claims that the expert's report will not be available until Jan. 20, four days after the hearing date.

The city counters:

Putting aside the conflicting public statements about the use of a per diem, the January 16th hearing is not limited to Sheriff Gusman's post-Christmas wish list for fund from the City. First, he must prove if any adjustment is needed...

Without production of any documents Sheriff Gusman should be precluded from offering any witnesses or documents during the January 16th hearing.

The city's filing: CityMemoInSupport.pdf

Full list of budget information sought by city: BudgetInfoRequest.pdf

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