The District Attorney has found no evidence that former LUS Director Terry Huval broke any laws.
The Current broke the story earlier today, and KATC Investigates has confirmed the story with documents obtained from District Attorney Keith Stutes.
To read The Current's story, click here.
KATC reached out to the Guillory administration for a comment, but a spokesperson said he had no comment at this time.
At issue is a program called POMS which was to connect LUS sewer lift systems to LUS Fiber, which would detect the disruption of service at the customer level. What has been questioned is how many sites LUS Fiber was paid to service, how many sites were actually in service, and how much LUS Fiber was paid for the program.
UPDATE: We've also received another letter that Stutes wrote to the Guillory administration just a week or so ago.
In the September 8 follow-up letter, Stutes reiterates the failure of Mayor President Josh Guillory and City Attorney Greg Logan to provide him with any evidence that Huval or any other unnamed LUS employees broke the law.
"I am now even more convinced that your “complaint”, continues to be driven by opinions and conclusions only that crimes have been committed and those you accuse are “guilty”. The “evidence” received and reviewed, however, suggests to the contrary," Stutes writes.
Stutes writes that Logan sent him a copy of a forensic audit, which Guillory had commissioned despite the fact that LCG auditors had examined the issues repeatedly over the past several years, and marked that audit as "confidential."
Stutes said he believed that classification until he received a late-night text from someone at a local radio station asking for a comment on it. He said the contents of the "confidential" report also were revealed in great detail on a radio show the following morning.
He also met with the LCG auditor - a local accounting firm that has handled the city-parish audits for years - who disagrees with almost every conclusion made in the forensic audit. And the pricing structure in place, as well as potential issues with it, was well-known within LCG for years, he added.
"Though the question of “full-cost accounting” was raised in 2011, annual attest audits done by the PSC and by auditors on behalf of LCG never addressed the specific question of whether, when, or how, a true cost of services study is done. Early on, in or about 2012, emails among LCG attorneys and LCG finance and budget opined that a “cost allocation study” may or may not be necessary in the future. Until very recently, no one, whether LCG legal, finance, or budget, or the PSC or external auditors, has opined as to what “full-cost accounting” is and its application to decisions made ultimately by many in and out of LCG, beginning in or about 2010-2011," Stutes wrote.
Stutes points out that the forensic audit, which directly contradicts the opinions of LCG's long-time auditor, does not prove the case. Instead, it creates reasonable doubt that would criple any criminal case.
"Regardless of any other factors, the competing opinions of (LCG's auditor) and your privately retained forensic auditors commissioned by you, create, if nothing else, additional “reasonable doubt” which would defeat a criminal prosecution," Stutes writes.
Stutes also raises an issue for Guillory and Logan: if they continue to advocate that LUS employees broke the law, that's a conflict of interest. Because then-Mayor President Joel Robideaux and Huval self-reported this issue to the state Public Service Commission about a year ago, there's a possibility LUS might be found in violation of PSC rules, Stutes writes.
"Due process requires LCG to advocate a position in favor of LUS and LUS Fiber (and in opposition to the finding of a “violation”), rather than against LUS and LUS Fiber (capitulating to a finding of a “violation”, ultimately resulting in serious economic consequences to be suffered to LCG and/or the City of Lafayette). Ignoring the position of (LCG's auditor) and the arguments that should be made in opposition to a finding of “violation”, the position taken by your “complaint”, would appear to be a conflict of interest, contrary to your responsibility to represent the best interest of LCG and/or the City of Lafayette and in engaging in the due process critical to the adversary nature of the determination to be made by the PSC," Stutes writes.
You can read the letter for yourself by scrolling down.
The first letter, a 15-page missive sent to Mayor-President Josh Guillory and City Attorney Greg Logan by Stutes back on August 10, details are revealed that had not been public before now.
He begins the letter by explaining to the two men - who are both attorneys - that to prove a crime has been committed there must be facts that support the elements of the crime laid out in the law. He also refers to the administration's complaint multiple times with quotes around it. In fact, much of the letter includes elementary explanations of how criminal law works.
In the letter, Stutes writes:
- Guillory submitted a complaint to Stutes and State Police one day after he went on a local radio station to describe a "raid" and imply that a police investigation was underway into LUS, LUS Fiber and Huval.
- Stutes learned there was no raid, just a police officer summoned to LCG to meet with then-President Joel Robideaux, as well as his CAO Lowell Duhon, HR manager Rick Zeno and two other LCG administrators, one of whom was a lawyer. The officer then sat in on interviews with LUS employees during an "internal investigation."
"The incident can hardly be described as a "raid" of any kind," Stutes wrote.
- The complaint consisted of a "notice" sent to Stutes by Logan which, according to Stutes, was not proper under the law, and did not meet the requirements of the law that Logan referred to in his notice.
- Along with the notice, Logan sent a two-page letter which claimed that the LCG investigation had revealed evidence that public records had been destroyed to cover up a crime.
- A press release issued by Guillory indicated that the goal of the "complaint" was an administrative one - despite the allegations in the letter sent to Stutes that crimes had been committed.
- During a February meeting with Guillory, Stutes and State Police, it became clear that - despite the allegations that LUS employees and/or Huval had destroyed public records - LCG had no proof of that and in fact had control over the equipment that would provide the proof of that, or lack thereof.
"You have recently stated that LSP refused to initiate the investigation of the LCG email archives. This is not accurate," Stutes wrote. "LSP cannot and should not utilize resources to initiate an unsubstantiated complaint. You were instructed that the e-mail servers and back-up tapes within the possession and control of LCG should be further examined by LCG to substantiate the allegation that the e-mails have been destroyed. In the interim, I was advised that the emails you suggested were destroyed or deleted may not have been."
Stutes may have been referring to Logan's comments during a July council meeting, when he said that the emails alleged to have been destroyed had, in fact, been located.
- After the February meeting about the case, it was the position of Stutes and the State Police that this issue was not a criminal one. Stutes writes that they both felt that, even if the allegations were true, they would constitute either a civil matter or a violation of Public Service Commission rules - and thus a matter for the PSC to investigation.
"You, however, have persisted in your request for a criminal investigation," Stutes writes.
- In fact, in May, Logan sent an interim report to Stutes, making numerous allegations that Huval broke the law. Those allegations, Stutes said, came without any evidence or proof.
"Again, strong rhetoric and advocacy do not supply the necessary proof to warrant criminal charges which must be established beyond a reasonable doubt. While awaiting the results of your continuing investigation for such proof, you continue as well to publicly proclaim your conclusions," Stutes writes.
- While the administration continued to accuse Huval of misappropriation of funds and malfeasance, no proof has ever been presented, Stutes writes. The same holds for the allegations that Huval or other LUS employees destroyed public records.
"As previously stated, despite numerous requests, there has not been presented any factual evidence that any documents have been destroyed. Rather, in what has been produced are a number of documents, emails, etc. which have a critical bearing on the further review of your complaint," Stutes writes. "Of course, due to the continuing nature of your investigation, should additional evidence become available to you, I will certainly review that evidence as well."
- Stutes points out that the LUS-LUS Fiber payments which form the basis of Guillory's complaint were presented in 2011 and approved by the council and administration at the time. In fact, a city attorney did research on the recommendation in 2011, he says. The payment process was carried out until 2018 with no complaints or issues raised by anyone at LCG, he says.
- Stutes also addresses the issue of "criminal intent," which is required to convict people of most crimes under Louisiana law; that is, the accused must have intentionally committed the act which constitutes a crime. He says there is no proof that Huval ever intended to commit a crime.
"There certainly might be some suggestion of inadvertence or negligence on the part of many; inadvertence, negligence, or even ethical violations and criminal negligence is insufficient to establish the crime of Malfeasance In Office," Stutes writes.
- Even if there was proof that Huval or any other employee committed the crime of malfeasance in connection with the pricing program, it's too late to prosecute, Stutes adds. Since the program was approved and instituted in 2011, the crime prescribed in 2015, he writes.
Here is the September 2020 letter:
Here's the full August 2020 letter:
If you'd like to read what was said publicly over the course of this situation, read our stories here:
The February "complaint" to state police: LCG officially requests state police to investigate Terry Huval, LUS
The request of Stutes that he investigate: https://www.katc.com/news/lafayette-parish/da-requests-documents-from-lcg-over-lus-internal-investigation
The results of the forensic audit: https://www.katc.com/news/lafayette-parish/forensic-audit-of-lus-fiber-shows-former-director-may-have-violated-state-law