Petition for Judicial Review

7/24/2019 Petition for Judicial Review

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CHARLES AND PATSY BROWN * NUMBER:

and PREVAILING FAITH

MINISTRIES aka/dba and PREVAILING * 19TH

JUDICIAL DISTRICT COURT

FAITH CHRISTIAN ACADEMY aka/dba

* PARISH OF EAST BATON ROUGE

VERSUS* STATE OF LOUISIANA

LOUISIANA DEPARTMENT

EDUCATION and JOHN WHITE,

In his capacity as SUPERINTENDENT

OF THE DEPARTMENT OF EDUCATION

PETITION FOR JUDICIAL REVIEW, RULE TO SHOW CAUSE AND PETITION

FOR INJUNCTIVE RELIEF

The petition of CHARLES AND PATSY BROWN in their capacity as Administrators

of Prevailing Faith Christian Academy, of full age of majority and domiciled in the Parish

of Ouachita respectfully represents:

1.

Made defendant herein the LOUISIANA DEPARTMENT OF EDUCATION and John

White, a person of full age and majority of the State of Louisiana, individually and as the

State Superintendent of Education, STATE OF LOUISIANA DEPARTMENT OF

EDUCATION, domiciled in East Baton Rouge Parish.

2.

Plaintiffs CHARLES AND PATSY BROWN, the administrators of PREVAILING

FAITH CHRISTIAN ACADEMY hereinafter referred to as (PFCA), seek and are entitled

to judicial review as provided in La R.S. 49:964(A) of the determination by the Louisiana

Department of Education hereafter referred to as department that PFCA is ineligible to

participate in the Louisiana Scholarship Program in the 2016-2017 school year due to gross

fiscal irresponsibility. This final determination was made October 15, 2015 and is attached

to this petition.

Background

3.

PFCA is administered by Pastor Charles and Patsy Brown who are also co-pastors and

founders of Prevailing Faith Ministries. Prevailing Faith Ministries owns the building

located at 1111 Plaza Boulevard, Monroe, Louisiana 71201. Prevailing Faith Ministries

entered into a lease agreement with PFCA for 1111 Plaza Blvd at a rate of seven dollars per

square foot. During the 2014-2015 school years, PFCA had sixty students enrolled, forty

of which were scholarship students.


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4.

Pursuant to Louisiana Revised Statutes 17:4022, PFCA submitted to the Louisiana

Department of Education an independent financial audit performed by Postlewaite and

Netterville, annually. As a result of the audit performed by Postlewaite and Netterville, a

subsequent audit was triggered by the Louisiana Legislative Auditor.

5.

As a result of the 2013-2014 audit by the Legislative Auditor, the department withheld

$10,200.00 from PFCA. However, this adjustment was made based on a misstatement in

budgeted amount PFCA paid to Prevailing Faith Ministries per square foot pursuant to the

lease agreement. PFCA was paying seven dollars per foot; however the auditor from

Postlewaite and Netterville listed the lease payment as $6.15 per square foot, resulting in

an erroneous adjustment. Though requested by PFCA, those funds were never refunded.

6.

Once the Legislative Auditor concluded its audit, they determined that the lease

payments from PFCA to Prevailing Faith Ministries were invalid arguably because the two

entities were one in the same. A response was prepared by Dr. PATSY BROWN as an

administrator of PFCA. At the time the response was prepared, June 25, 2015, PFCA, was

not represented by legal counsel. Legal counsel was retained by PFCA on August 31, 2015.

On September 1, 2015, legal counsel for PFCA contacted Corey Lejeune, at the Louisiana

Legislative AuditorsOffice and requested a meeting to discuss the audit findings.

7.

That same day, Roger Harris at the Louisiana Legislative AuditorsOffice contacted the

legal counsel of PFCA and stated that the audit report would be made public September 7,

2015. Additionally he stated that PFCA would not be allowed additional time to submit a

response vetted and prepared by legal counsel or to address the issue of the lease payments.

Mr. Harris further advised the legal counsel for PFCA to prepare a response for the

Louisiana Department of Education and the media as he would be moving forward with

publishing the report.

8.

The Investigative report was not made public on September 7, 2015. At the request John

White, according to Mr. Harris, the public issuance of the report was delayed in order to

give the department time to include a formal response. This delay was not communicated

to PFCA. Nor was PFCA offered the additional time granted to the department to include a

vetted legal response to the audit report.


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9.

Legal counsel for PFCA attempted to contact the Louisiana Department of Education by

email on September 9, 2015 and September 24, 2015 and by phone on September 14, 2015.

All attempts were unsuccessful. A petition for injunctive relief was filed on September 25,

2015 to enjoin the Legislative Auditor from publicizing the report until PFCA had an

opportunity to adequately respond and to enjoin the department from withholding funds

from PFCA first quarter payment until the PFCA had an opportunity to provide receipts.

Consequently, legal counsel for the department contacted PFCA through its attorney of

record to schedule a conference call the same day the petition was filed. The call was

scheduled for September 28, 2015.

10.

Despite the scheduled conference call, The Louisiana Legislative Auditor published its

report September 28, 2015. They stated in its executive summary that PFCA did not

maintain adequate financial records for the period of July 1, 2013 to June 30, 2014. We

found $84,924 of expenditures in the Student Education of Educational Excellence

Program bank account where the school either could not or would not provide supporting

documentation for the expenditures or the expenditures did not meet the criteria for

educational purpose. The Department of Education also included in the Legislative

Auditors report a response to the audit dated September 21, 2015 accepting the findings of

the Louisiana Legislative Auditor and further agreeing to withhold $74,724 in scholarships

funds from PFCA determining that $10,200 had already been withheld from SY2013-2014.

11.

During the conference call on September 28, 2015, PFCA was notified that the

Department of Education was also terminating PFCAs participation in the scholarship

program citing gross fiscal irresponsibility. During that call, PFCA assured department

personnel that expenditures were used for scholarship purposes and the department agreed

to receive receipts from PFCA evidencing proper use of scholarship funds. Despite the

determination that the lease payments were not valid, which PFCA refutes, the funds were

still expended for costs that were valid under the program rules. Once submitted, the

department agreed to refund the funds originally withheld. In an effort to address the

matters and proceed amicably PFCA dismissed it Petition for Injunctive Relief on

September 29, 2015.


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12.

Parents and families were notified the following day of PFCA removal from the

program. As expected, the families were devastated and flabbergasted at the notion of

having to up root their children overnight from a school where they were comfortable and

flourishing. Many parents felt as if the students needs were not considered first, since

students were being forced to make such a grand adjustment in the middle of the school

and with little to no notice. In addition, media outlets in the local area published the

findings of the audit and PFCA was branded as a misuser of state funds. PFCA assured the

media, families and students that they were working with the department to address all

concerns and was working to be reinstated into the program.

13.

On Oct 7, 2015, PFCA submitted to the department receipts amounting to $42,448.00 in

mortgage expenses. In addition, on October 22, PFCA submitted to the department

additional receipts amounting in $33,475.68 of expenditures qualified under the program.

All receipts were submitted to Charlotte Stevens, the Director of Finance, by email. On or

about October 13, PFCA applied to participate in the Scholarship Program for the 2016-

2017 school years. On October 15, 2015, the department determined that PFCA was

ineligible to participate in the scholarship program citing gross fiscal irresponsibility. As

of November 11, 2015, the department has not responded to any requests for updates, or

meetings and has not issued a refund of the scholarship funds originally withheld.

Averments

14.

PFCA avers that the departments final determination that PFCA is ineligible to

participate in the scholarship program for the 2016-2017 school year is in violation of

constitutional and statutory provisions and was made upon unlawful procedure because the

PFCAs was denied Equal Protection under the law. The Fourteenth Amendment of the

United States Equal Protection Clause requires that all persons similarly situated be treated

alike under the law. Article I, Section 3 of the Louisiana Constitution provides that no

person shall be denied the equal protection of the laws and that no law shall arbitrarily ,

capriciously or unreasonably discriminate The Legislative Auditor, charged with the

responsibility of impartially and conducting a fair and equitable audit, discriminated against

PFCA, when it unjustly denied their request for additional time to respond to the audit

findings before they were final and made public but granted to the Department of

Education an additional two weeks to respond to the same audit findings. Once the

Legislative Auditor agreed to delay publishing its report to allow the Department of


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Education to include a response, PFCA should have been granted that same opportunity.

Had PFCA not been denied the right to submit evidence, the same receipts that were

submitted to the department could have been submitted to the Legislative Auditor

preventing PFCA termination from the program. The reputation of PFCA among the local

community and among parishioners has been irreparably impacted due to this grave

injustice.

15.

PFCA further avers that the departmentsfinal determination that PFCA was ineligible

to participate in the scholarship program for the 2016-2017 school year was in violation of

constitutional and statutory provisions and was made upon unlawful procedure because the

PFCAs was denied due process under the law. The Fourteenth Amendment of the US

Constitution provides for due process rights by providing that no person shall be deprived

of life, liberty or the pursuit of happiness without due process of law. The Department of

Education determined that PFCA was ineligible to participate in the scholarship program

for the 2016-2017 school year without a hearing to refute the audit findings of the

Legislative auditor from which they relied in their decision to deny PFCAs participation.

Had the department allowed PFCA a hearing to address the findings of the audit, PFCA

could have submitted the same receipts they have since received and prevented the

premature termination PFCAs participation in the program.

16.

PFCA further avers that the Department of Education determination that PFCA was

ineligible to participate in the scholarship program for SY16-17 was arbitrary or capricious

or characterized by abuse of discretion or a clearly unwarranted exercise of discretion since

the department had agreed to receive receipts from PFCA evidencing adequate use of

scholarship funds. The department had already begun receiving receipts at the time the final

determination was made that PFCA would be ineligible for the 2016-2017 school years.

This was clearly an abuse of discretion and the measures of a bully since PFCA was

being allowed to submit the receipts evidencing that PFCA was not grossly fiscally

irresponsible. The department had the complete discretion to impose a less detrimental

sanction on PFCA while the records were being submitted. A probationary eligibility

would clearly have accomplished the charge of the department of protecting the state

interest and observing PFCA constitutional rights.

17.

PFCA further avers that the Department of Education determination that PFCA was

ineligible to participate in the Scholarship program for SY16-17 was not supported and

sustainable by a preponderance of evidence. The Louisiana Legislative Auditor nor the


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Department of Education had evidence to support that PFCA did not use the funds in

question for scholarship purposes. The department had the burden of determining whether

the findings of the audit report were substantiated. The Legislative Auditor never

determined how the funds were expended. The department made its determination without

assuring there was valid evidence to support the audit findings. This notion has even more

so been solidified since PFCA has furnished evidence to the department of over $75,000 in

receipts from the 2013-2014 year.

Designation of Record for Appeal

18.

PFCA designates the following as the record in appeal in this matter the entire public

recording regarding PFCA as of the date of the filing of this Petition for Judicial Review,

including but not limited to the legislative auditors report and related files and records, the

report submitted by Postlewaite and Netterville and all related files and records, emails and

or transmissions.

Relief Requested

19.

PFCA respectfully requests this Honorable Court immediately reinstate PFCA into the

scholarship program until a contradictory hearing can be held on the matter of PFCA eligibility to

participate in the scholarship program for the 2016-2017 school year. Irreparable harm would

further occur to PFCA if they are not able to participate in the lottery system by which students

are assigned. This process occurs in early January. If not able to advertise and participate in this

process in January 2016, PFCA would not be able to receive scholarship students until the 2017-

2018 school year. This delay would cause additional irreparable harm to PFCA as significant

economic burdens have been placed on PFCA by the school not functioning.

20.

PFCA also respectfully requests that this Honorable Court order the department to

immediately remit payment of the $75,923.68 as substantiated by receipt of qualified scholarship

expenses to PFCA.

21.

Due to the almost certain irreparable economic harm to PFCA, pursuant to LSA-R.S.49:950 et seq, PFCA further desires and is entitled to the issuance of a temporary restraining

order, without bond, and in due course same issued as a preliminary injunction restraining,

prohibiting and enjoining the department from disallowing the PFCA from participating in the

program pending further order of this court and said restraining order to remain in full force and

effect until a hearing on this matter can be had to prevent irreparable harm and injury to PFCA

due to the necessity of PFCA to be enrolled in the scholarship program by January 2016 to allow

PFCA to participate in the lottery system by which students are assigned.


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WHEREFORE, petitioner prays that

1. This Honorable Court immediately reinstate PFCA into the scholarship program until a

contradictory hearing can be held on the matter of PFCA eligibility to participate in the

scholarship program for the 2016-2017 school year.

2. This Honorable Court order the department to immediately remit payment of the

$75,923.68 as substantiated by receipt of qualified scholarship expenses to PFCA.

3. This Honorable Court issue of a temporary restraining order, without bond, and in due

course same issued as a preliminary injunction restraining, prohibiting and enjoining

the department from disallowing the PFCA from participating in the program pending

further order of this court and said restraining order to remain in full force and effect

until a hearing on this matter can be had to prevent irreparable harm and injury to

PFCA due to the necessity of PFCA to be enrolled in the scholarship program by

January 2016 to have students ready for the 2016-2017 school year.

4. The record designated by the PFCA shall be complied and forwarded to the Nineteenth

Judicial District Court by a day determined by the court.

5.

A rule to show cause issue herein directed to the department to show cause, if they can,

on a day determined by this court why PFCA should not be reinstated into the

scholarship program for the 2016-2017 school year under the terms and conditions

which this Honorable Court may deem prudent and necessary and why they should not

be liable for reasonable attorneys fees.

6. Awards any other relief as this Court finds equitable.

Respectfully submitted,

________________________________________

Nina S. Hunter Bar Roll # 29259

Law Office of Nina S. Hunter

301 Main Street, Ste 2200

Baton Rouge, LA 70801

(225) 224-6467 Office

(225) 224-6701 Fax

ATTORNEY FOR THE PETITIONER

PLEASE SERVE IMMEDIATELY

John White

State Superintendent of Education

Louisiana Department of Education

1201 North Third StreetBaton Rouge, LA 70802


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CHARLES AND PATSY BROWN * NUMBER:

and PREVAILING FAITH

MINISTRIES aka/dba and PREVAILING * 19TH

JUDICIAL DISTRICT COURT

FAITH CHRISTIAN ACADEMY aka/dba

* PARISH OF EAST BATON ROUGE

VERSUS* STATE OF LOUISIANA

LOUISIANA DEPARTMENT

EDUCATION and JOHN WHITE,

In his capacity as SUPERINTENDENT

OF THE DEPARTMENT OF EDUCATION

ORDER

1. IT IS ORDERED that PFCA is to be immediately reinstated into the scholarship

program until a contradictory hearing can be held on the matter of PFCA eligibility to

participate in the scholarship program for the 2016-2017 school year.

2. IT IS FURTHER ORDERED that the Louisiana Department of Education immediately

remit payment of the $75,923.68 as substantiated by receipt of qualified scholarship

expenses to PFCA

3. IT IS FURTHER ORDERED that a temporary restraining order issue, without bond,

and in due course same issued as a preliminary injunction restraining, prohibiting and

enjoining the department for disallowing the PFCA from participating in the program

pending further order of this court and said restraining order to remain in full force and

effect until a hearing on this matter can be had to prevent irreparable harm and injury to

PFCA due to the necessity of PFCA to be enrolled in the scholarship program by

January 2016 to have students ready for the 2016-2017 school year.

4. IT IS FURTHER ORDERED that the record designated by the PFCA shall be complied

and forwarded to the Nineteenth Judicial District Court by the __________ day of

_____________2015.

5.

IT IS FURTHER ORDERED that a rule to show cause issue herein directed to the

department to show cause, if they can, on the ____________ day of

_____________2015 at _________,why PFCA should not be reinstated into the

scholarship program for the 2016-2017 school year under the terms and conditions

which this Honorable Court may deem prudent and necessary and why the department

should not be liable for reasonable attorneys fees.


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6. Awards any other relief as this Court finds equitable.

Signed in Baton Rouge, Louisiana, this ______________ day of

_____________________, __________.

_________________________

DISTRICT JUDGE

Petition for Judicial Review

Documents

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