Judge: LSU board could face jail if search records not released

“It certainly is high time for compliance. I want the production (of the records). They (the newspapers) are entitled to it.” District Judge Janice Clark

Saying daily $500 fines have not grabbed its attention, an unyielding state judge warned the LSU Board of Supervisors on Monday that it now faces additional sanctions, including possible jail time, if it does not immediately comply with her more than four-month-old order to make public the records of its secret presidential search.

Following a tense open court hearing and private conference, District Judge Janice Clark ordered the board’s attorney, Jimmy Faircloth, and lawyers for The Advocate and The Times-Picayune newspapers to return to her 19th Judicial District courtroom Tuesday morning so she can determine whether the board intends to finally comply with her April 30 order.

The Advocate sued after the university board refused to release the records, and The Times-Picayune joined the case a week later.

Faircloth argued during a hearing Monday that the board intends to appeal the judge’s April order and should not have to comply with it until higher courts have spoken.

“It certainly is high time for compliance,” an adamant Clark stated. “I want the production (of the records). They (the newspapers) are entitled to it.”

Later in the day, LSU spokesman Ernie Ballard said simply, “LSU does not have a comment.”

Clark ruled Aug. 14 that the board and its then-chairman, Hank Danos, have been in contempt for several months for violating her order requiring LSU to release the names of semifinalists and finalists in its presidential search. She fined LSU $500 a day for each day the records are not produced. The mounting fine currently stands at about $59,000. At Monday’s hearing, Clark said the board’s continued refusal to comply was very serious and she warned she would consider additional sanctions, including possible imprisonment.

Following the Aug. 14 ruling, LSU released a statement through Ballard saying, “LSU is committed to pursuing all available appellate relief and to obtaining a proper judicial resolution of a critical issue that can have substantial impact on the recruitment of the best qualified person for academic and other leadership positions throughout the state.”

The Louisiana Supreme Court on Aug. 29 refused LSU’s request that it overturn or stay Clark’s April 30 ruling requiring the board to make public the records. Faircloth has said LSU will file an appeal with the state 1st Circuit Court of Appeal in Baton Rouge once there is a final judgment in the case. Lori Mince, who represents the newspapers, has said there will not be a final judgment until Clark decides whether LSU will be forced to pay the newspapers’ damages and attorney’s fees.

LSU’s search for a new president ended in March with the selection of F. King Alexander, former president of California State University in Long Beach, Calif.

Advocate reporter Koran Addo asked for public records from the search, including the names of the 35 semifinalists the board considered. The board denied the request, claiming it was required to provide information only on those who applied for the position and Alexander was the only “applicant.” The board said the other 34 semifinalists never applied.

Clark, who ruled in April that those records are indeed public, stressed Monday that it makes no sense to give the public the right to demand records of its public bodies and institutions if there is no remedy available when those records are withheld from public view.

“The law does not intend for that consequence to occur,” she said.

Clark noted she is interested in compliance, not punishment, and added that Faircloth has not given her any rational reason why he has advised the board not to abide by a court order.

“The court has to enforce its order,” she told Faircloth. “The Board of Supervisors continues to defy the court’s order. The court is ordering you to comply with it immediately.”

The judge called for a complete and immediate delivery of the records.

“My client wants to exercise its constitutional right to appeal,” Faircloth replied to the judge.

Clark nevertheless persisted.

“This court intends for you and your client to comply with the order. This court intends to have compliance,” she said.

Faircloth apologized and said neither he nor the board are being disrespectful to the court.

At that point, the judge said she would consider additional sanctions, including possible jail time. She said it would be wise for Faircloth to strongly urge his clients to comply with her order.

A stunned Faircloth had little to say after the hearing. When asked if the threat of jail time could apply to him as well, Faircloth replied, “I’m not sure.”

“She’s merely laying out what additional sanctions she may consider,” Mince said.

In a separate suit, state District Judge Tim Kelley — one of Clark’s 19th Judicial District Court colleagues — ruled against the editor of LSU’s student newspaper, who also was seeking release of records in the search for a president. That ruling was not appealed.