In re McInnis

• Decision Date: 17 October 2000
• Docket Number: No. 2000-O-1026.,2000-O-1026.
• Citation: 769 So.2d 1186
• Parties: In re Justice of the Peace Guy McINNIS.
• Court: Louisiana Supreme Court

769 So.2d 1186

In re Justice of the Peace Guy McINNIS.

No. 2000-O-1026.

Supreme Court of Louisiana.

October 17, 2000.

Nancy E. Rix, Commission Legal Counsel, Hugh M. Collins, PhD., Chief Executive Officer, Judiciary commission of Louisiana.

Steven Robert Scheckman, Special Counsel, Mary Whitney, Assistant Special Counsel, Office of Special Counsel.

Gilbert Victor Andry, IV, New Orleans, Counsel for Respondent.

CALOGERO, Chief Justice.

This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana that Guy S. McInnis, Justice of the Peace for Ward I, St. Bernard Parish, be censured for misconduct and ordered to reimburse the Commission the costs incurred in the investigation and prosecution of this judge discipline case. The Commission conducted an investigatory hearing, made findings of fact and conclusions of law, and determined that respondent violated Article V, § 25(C) of the 1974 Louisiana Constitution¹ and Canons 1, 2(A), and 5(C)(1) of the Code of Judicial Conduct² by maintaining a continuing financial relationship with the St. Bernard Parish Sheriff's Office after he knew, or should have known, that such a relationship violated the Code of Judicial Conduct. After reviewing the record, we find that the charge against Justice of the Peace McInnis is supported by clear and convincing evidence. We agree with the Commission that Justice of the Peace McInnis's behavior warrants censure and an assessment of costs.

FACTS

Justice of the Peace Guy McInnis assumed the office of Justice of the Peace of Ward I in St. Bernard Parish on January 1, 1997. At that time, Justice of the Peace McInnis was, and had been since January 1995, employed as a full-time accountant for the St. Bernard Parish Sheriff's Office. Although he did not exercise law enforcement powers, Justice of the Peace McInnis was also a commissioned deputy sheriff for the purpose of obtaining retirement benefits. As Justice of the Peace, respondent's duties included issuing warrants of arrest, which were then executed by the St. Bernard Parish Sheriff's Office, and setting bonds.³ On two occasions while respondent was employed by the sheriff's office, the arrest warrants were initiated by affidavits from sheriff's deputies.

In April 1997, the Commission received an anonymous complaint asserting that Justice of the Peace McInnis was employed both as a justice of the peace and by the St. Bernard Parish Sheriff's Office. The Commission then informed respondent of the complaint and invited a response. By letter of April 30, 1997, Justice of the Peace McInnis stated to Special Counsel Steve Scheckman that he was employed by the St. Bernard Parish Sheriff's Office as an accountant, that he had no law enforcement powers, and that he was commissioned a deputy sheriff so as to participate in the pension plan. Respondent further stated that he intended to cooperate fully in the investigation and to abide by the wishes of the Commission. In August 1997, the Commission through its legal counsel, Ms. Nancy Rix, advised respondent in writing that his employment with the sheriff's office at the same time he was serving as a justice of the peace was inconsistent with Canon 2(A) of the Code of Judicial Conduct, referencing two advisory ethics opinions issued by the Supreme Court Committee on Judicial Ethics that had been provided to respondent by Special Counsel.⁴ The Commission's legal counsel further informed respondent that the Commission would file formal charges if respondent did not resign either from his office as justice of the peace or from his position with the St. Bernard Parish Sheriff's Office.

On September 5, 1997, respondent through his counsel, Jacques Sanborn, proposed to the Commission through its legal counsel that respondent resign his commission as a deputy sheriff but retain his position as an accountant in the civil section of the sheriff's office. That proposal, merely to resign as a deputy sheriff, was deemed insufficient by the Commission, whose legal counsel in a letter dated September 19, 1997, advised respondent that, if he wished to retain his position as a justice of the peace, he "should terminate [his] relationship with the sheriff's office altogether."⁵ By letter dated October 1, 1997, respondent advised special counsel that he had submitted a letter of resignation to the sheriff's office effective October 31, 1997. Thereafter, the Commission informed respondent that, in reliance upon his resignation letter, it had voted to close the matter.

Prior to the effective date of his resignation, October 31, 1997, respondent contacted a friend, Steve Kissee, who is an accountant. Respondent arranged to have Mr. Kissee, through Mr. Kissee's wholly-owned corporation, Accounting Systems Consulting of Louisiana (ASC), enter into a contract to provide the sheriff's office with accounting services commencing on November 1, 1997.⁶ In an unwritten agreement, Mr. Kissee's corporation, ASC, then contracted with Justice of the Peace McInnis through McInnis's wholly-owned corporation, GSM Financial Services, Inc. (GSM), to perform the accounting work for the sheriff's office.⁷ Mr. Kissee testified that the sheriff's office understood that primarily Justice of the Peace McInnis would perform the actual work.

On November 1, 1997, the day after his resignation from the sheriff's office, Justice of the Peace McInnis began performing the accounting work for the sheriff's office as an employee of his wholly-owned corporation, GSM, an independent subcontractor, which was paid by ASC, Mr. Kissee's corporation, to perform such services. ASC had only one account, the sheriff's office, which paid ASC $3,334.00 per month. In turn, ASC paid GSM approximately $3,200.00 per month, or $38,400.00 per year, an amount that was roughly equivalent to respondent's annual salary at the time of his resignation, $33,400.00 with benefits.⁸ Until December 31, 1998, Justice of the Peace McInnis performed the accounting work for the St. Bernard Parish Sheriff's Office at the St. Bernard Parish Sheriff's Office, where he maintained an office.

On August 20, 1998, the Commission, through the Office of Special Counsel, informed Justice of the Peace McInnis of a second anonymous complaint, received in July of 1998, which alleged that he continued to be employed as an accountant for the sheriff's office. Justice of the Peace McInnis responded four days later by sending to Special Counsel, via facsimile, copies of his resignation letter of October 1997 and a completed application for refund of his retirement contributions dated November 7, 1997. Justice of the Peace McInnis's response made no mention of his continuing financial relationship with the sheriff's office through contracts with ASC and GSM.

In December of 1998, after Justice of the Peace McInnis was notified that the Commission had authorized an investigation against him, he informed the sheriff's office that he would no longer provide accounting services on a contractual basis. The sheriff's office then discontinued its contractual relationship with ASC. Thereafter, the sheriff's office hired a full-time accountant unrelated to ASC, GSM, or respondent. However, on February 1, 1999, Justice of the Peace McInnis, through GSM, entered into a twelve-month, personal services contract with the sheriff's office. Under this new agreement, respondent provided support services, which included training the new accountant. Respondent was paid $500.00 per month. On July 26, 1999, the Commission filed Formal Charge No. 106 against Justice of the Peace McInnis. Approximately two months later, on September 21, 1999, respondent terminated his personal services contract with the sheriff's office.

FORMAL CHARGE No. 106

The Commission charged that Justice of the Peace McInnis maintained an ongoing employment or financial relationship with the St. Bernard Parish Sheriff's Office after taking office as Justice of the Peace of Ward I, St. Bernard Parish. The charge alleged that respondent, prior to the effective date of his resignation from the sheriff's office, had arranged to have Mr. Kissee's corporation, ASC, enter into a contract with the sheriff's office to provide it with accounting services. ASC thereafter hired respondent's corporation to perform that accounting work. The charge also alleged that respondent, when confronted with the second anonymous complaint, replied with copies of his resignation letter and retirement contributions refund application. The Commission further alleged that respondent did not disclose his continuing business relationship with the sheriff's office until his sworn statement of April 5, 1999. The charge asserted that respondent had violated Canons 1, 2(A), and 5(C)(1) of the Code of Judicial Conduct, engaged in willful misconduct relating to his official duty, in violation of La. Const. art. V, § 25(C), and engaged in public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, also in violation of La. Const. art. V, § 25(C).

PROCEEDINGS BEFORE THE COMMISSION

The Commission conducted an investigatory hearing and heard the testimony of Mr. John Lane, Director of Administration for the St. Bernard Parish Sheriff's Office; Mr. Steve Kissee; and Justice of the Peace Guy McInnis.

Justice of the Peace McInnis through his counsel stipulated that he had contacted Mr. Kissee before his resignation took effect and asked Mr. Kissee to enter into an arrangement with the sheriff's office with the understanding that Mr. Kissee's corporation would hire Mr. McInnis or his company to perform all of the accounting work for the sheriff's office. Respondent also stipulated that the sheriff's office was aware that respondent was the person who would perform the accounting work under Mr. Kissee's contract with the sheriff's office. Respondent further stipulated that no written agreement existed between ASC and GSM, that he...