Duplantis v. Louisiana Bd. of Ethics

Decision Date23 March 2001
Docket Number No. 2000-CC-1956., No. 2000-CC-1750
Citation782 So.2d 582
CourtLouisiana Supreme Court
PartiesChrista DUPLANTIS v. LOUISIANA BOARD OF ETHICS. Breazeale, Sachse, & Wilson, L.L.P., v. Louisiana Board of Ethics.

782 So.2d 582

Christa DUPLANTIS
v.
LOUISIANA BOARD OF ETHICS.
Breazeale, Sachse, & Wilson, L.L.P.,
v.
Louisiana Board of Ethics

Nos. 2000-CC-1750, 2000-CC-1956.

Supreme Court of Louisiana.

March 23, 2001.


782 So.2d 583
Jude C. Bursavich, Anthony T. Caruso, Gordon A. Pugh, Andrew T. McMains, Counsel for Respondent (No. 2000-CC-1956)

Charles J. Fulda, IV, Carolyn A. McNabb, Ramona N. Wallis, Danna E. Schwab, Counsel for Respondent (No. 2000-CC-1750).

Jennifer G. Magness, Maris L. McCrory, R. Gray Sexton, Counsel for Applicant.

VICTORY, Justice.

We granted writs in these two unrelated cases, consolidated for oral argument, to consider whether it was proper for the court of appeal to have reviewed advisory opinions issued by the Louisiana Board of Ethics (the "Board"). After reviewing the record and the applicable law, we hold that the provision of La. R.S. 42:1142 which provides that "[a]ny advisory opinion issued to any person or governmental entity by the board or panel ... is subject to the supervisory jurisdiction of the appellate court ..." is unconstitutional; therefore, the appellate courts are without jurisdiction to review such advisory opinions.

FACTS AND PROCEDURAL HISTORY

Duplantis v. Board of Ethics

On August 30, 1996, Christa Duplantis, through the Assistant Attorney for the Terrebonne Parish Consolidated Government, sought an advisory opinion from the Louisiana Board of Ethics. The substance of that request was as follows:

I have been requested by Council member, Christa Duplantis, to obtain an opinion from the Board of Ethics for Elected Officials regarding her potential employment with two local hospitals.
Christa Duplantis was elected in 1995 to serve as a Terrebonne Parish Consolidated Government council member for a four year term which began in January 1996. Christa Duplantis is a Registered Nurse who desires to obtain employment with the Terrebonne General Medical Center ("TGMC") or the Leonard Chabert Medical Center ("LCMC"). TGMC is owned and operated by Hospital Service District No. 1 of the Parish of Terrebonne ("hospital district"). LCMC is a State owned and operated facility.

782 So.2d 584
Particularly, Duplantis wanted the Board's opinion as to whether such employment would be prohibited by La. R.S. 42:1113(A). That statute provides, in pertinent part
No public servant ... or member of such a public servant's immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction that is under the supervision or jurisdiction of the agency of such public servant.

La. R.S. 42:1113(A).

On October 7, 1996, the Board of Ethics responded with Advisory Opinion 96-147 which contained two principal conclusions. First, the Board concluded that La. R.S. 42:1113(A) would prohibit Duplantis from providing nursing services to Terrebonne General because it was part of the Terrebonne Parish Consolidated Government. Second, the Board found that the Code of Ethics would not prohibit Duplantis from seeking employment from Leonard Chabert because it was an agency of the state, not an agency of Terrebonne Parish Consolidated Government. On November 12, 1996, Duplantis applied for a writ of certiorari from the First Circuit Court of Appeal pursuant to La. R.S. 42:1142(A) as it read at that time.1

In 1997, while the case was pending before the First Circuit, this court handed down its original opinion in Transit Management of S.E. La. v. Commission on Ethics for Pub. Emp., 96-1982, p. 2 (La.12/2/97), 703 So.2d 576, 577 [hereinafter TMSL], which found that an advisory opinion was not a "preliminary, procedural, or intermediate action" within the meaning of La. R.S. 42:1142(A). Consequently, this court reasoned: "There is no constitutional or legislative authority for judicial review of an advisory opinion rendered by the [Board of Ethics]." Id. Following that original opinion in TMSL, the First Circuit dismissed Duplantis's writ on December 30, 1997. See Duplantis v. Board of Ethics for Elected Officials, 96-2416, p. 1 (La. App. 1 Cir. 12/30/97) (per curiam) (unpublished opinion).

The original TMSL opinion had further reasoned that a "person who will be ultimately affected by a ruling of the [Board of Ethics], if and when a complaint is filed, can file an action for a declaratory judgment in the district court to determine the legal correctness of the [Board's] opinion on conduct or status." TMSL, 96-1982 at 3, 703 So.2d at 578. Based on this language, on February 3, 1998, Duplantis filed an action in the district court for a declaratory judgment that, if she were successful, would hold that the advisory opinion of the Board of Ethics barring her employment with Terrebonne General was incorrect.

On April 4, 1998, in response to the rehearing application by the Board of Ethics in TMSL, this Court otherwise denied the rehearing but withdrew the reference in the TMSL opinion to the availability of declaratory relief for a person in Duplantis's

782 So.2d 585
position, reciting that the statement was dicta. See TMSL, 96-1982, p. 1 (La.4/24/98), 710 So.2d 792, 792 (on rehearing). Instead, we stated that: "Issues as to other possible `remedies' for persons affected by advisory opinions were not before us, and problems with specific remedies are properly addressed when such issues are squarely presented." Id. On June 22, 1998, the district court in this matter sustained an exception of lack of subject matter jurisdiction filed by the Board of Ethics and dismissed Duplantis's case. She appealed to the court of appeal

While Duplantis's case was before the court of appeal, the Legislature, by Acts 1999, No. 252, § 1, effective June 11, 1999, amended La. R.S. 42:1142(A) to provide that:

Whenever action is taken against any public servant or person by the board or panel or by an agency head by order of the board or panel, or whenever any public servant or person is aggrieved by any action taken by the board or panel, he may appeal therefrom to the Court of Appeal, First Circuit, if application to the board is made within thirty days after the decision of the board becomes final. Any advisory opinion issued to any person or governmental entity by the board or panel or any preliminary, procedural, or intermediate action or ruling by the board or panel is subject to the supervisory jurisdiction of the appellate court as provided by Article V, Section 10 of the Constitution of Louisiana. The Court of Appeal, First Circuit, shall promulgate rules of procedure to be followed in taking and lodging such appeals. (Emphasis added.)

La. R.S. 42:1142(A). Following the statute's revision, the court of appeal, believing the Legislature had changed the law in TMSL, converted Duplantis's appeal to a supervisory writ and secured the record from the previous case (the 1996 dismissed matter) so that Duplantis could "have her day in court." Duplantis v. Louisiana Board of Ethics, 98-2056, pp. 6-8 (La.App. 1 Cir. 12/28/99) (unpublished opinion). Thereafter, on May 18, 2000, the First Circuit granted the writ with an order favorable to Duplantis reversing the Board's opinion. Duplantis v. Louisiana Board of Ethics, 00-0293 (La.App. 1 Cir. 5/18/00). We granted the writ sought by the Board of Ethics. Duplantis v. Louisiana Board of Ethics, 00-1750 (La.9/15/00), 767 So.2d 699.

Breazeale, Sachse, & Wilson, L.L.P. v. Louisiana Board of Ethics

On March 14, 2000, Breazeale, Sachse, & Wilson, L.L.P. ("Breazeale, Sachse") sought an advisory opinion from the Louisiana Board of Ethics. The substance of that request was as follows:

Breazeale, Sachse, & Wilson, L.L.P. ("BS&W") represents the Louisiana Community and Technical College System ("LCTCS") on a number of legal matters pursuant to employment by the Louisiana Attorney General's office. We request an Advisory Opinion as to whether Murphy J. Foster, III ("Foster") would be in violation of Section 1113A of the Code of Governmental Ethics if Foster, as a partner of BS & W, received any financial benefit in the form of compensation that might be derived from BS & W's representation of LCTCS.

Breazeale, Sachse further acknowledged to the Board that Foster was a member of the Governor's immediate family within the meaning of La. R.S. 42:1113(A)2 and

782 So.2d 586
that his ownership interest in the firm was less than 25%.

On April 17, 2000, the Board responded with Advisory Opinion 2000-216 containing three principal conclusions. First, the Board concluded that nothing in La. R.S. 42:1113(A) would prevent Breazeale, Sachse from "providing legal services to or otherwise representing the interests of LCTCS, provided the provision of such services is by partners and members of Breazeale, Sachse other than Mr. Murphy J. Foster, III." Second, the Board found that the Code of Ethics would not prohibit Foster from receiving his normal distribution of the profits from Breazeale, Sachse, even when some of those profits would be derived from the firm's representation of LCTCS. Finally, the Board concluded that La. R.S. 42:1113(A) prohibited Foster from personally rendering legal services to LCTCS because such services would constitute a prohibited "transaction."

On May 30, 2000, Breazeale, Sachse applied for a supervisory writ to the First Circuit Court of Appeal. On June 16, 2000, the First Circuit denied the writ reasoning that:

Murphy Foster, III, is an individual and as an individual he is prohibited by law from entering into a transaction with executive branch agencies because he is an immediate family member of the Governor. It is of no moment that he may be acting in his capacity as an agent of his law firm pursuant to a contract between his law firm and those agencies. He, as an individual, is an immediate family member of the governor and therefore, cannot perform the work.

Breazeale, Sachse, & Wilson, L.L.P. v. Louisiana Board of Ethics, 00-1179 (La. App. 1 Cir. 6/16/00) (denying the writ). We granted the...

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