In re Rombach, No. 2008 CW 0237 (La. App. 6/6/2008)
| Decision Date | 06 June 2008 |
| Docket Number | No. 2008 CW 0237.,2008 CW 0237. |
| Parties | IN RE: JOHN ROMBACH. |
| Court | Court of Appeal of Louisiana — District of US |
ON WRIT OF CERTIORARI FROM THE LOUISIANA BOARD OF ETHICS PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 2005-192, HENRY C. PERRET, JR., CHAIRMAN; DR. HERBERT V. BAPTISTE, SR.; CLAYTON DAVIS; DR. JOANNE C. FERRIOT; JUDGE JOHN W. GREENE; GWENDOLYN P. HAMILTON; MICHAEL T. JOHNSON, DR. CEDRIC W. LOWREY, JOSEPH MASELLI; DR. ERNEST DOUGLAS PETERSON; DR. DOLORES SPIKES.
ALFRED W. SPEER, MARY F. QUAID, YOLANDA DIXON, JERRY J. GUILLOT, JERRY G. JONES Baton Rouge, LA, Counsel for Relators, Francis Heitmeier, Donald hines, and Joe Salter.
DEBORAH GRIER, Baton Rouge, LA, Counsel for Respondent, Henry C. Perret, Jr., Chairman Louisiana Board of Ethics.
KATHLEEN M. ALLEN, RICHARD A. SHERBURNE, Jr. Baton Rouge, LA, Counsel for Respondent, Louisiana Board of Ethics.
J. CHRISTOPHER ALEXANDER, Sr. Baton Rouge, LA, Counsel for Respondent, John Rombach.
RICHARD McGIMSEY, Assistant Attorney General Baton Rouge, LA, Counsel for Respondent, James D. "Buddy" Caldwell, Attorney General, State of Louisiana
Before: WHIPPLE, GUIDRY and HUGHES, JJ.
In this writ application, Louisiana State Senators Francis Heitmeier and Donald Hines and State Representative Joe Salter challenge a decision of the Louisiana Board of Ethics to issue subpoenas to them to provide testimony in relation to charges against a former legislative fiscal officer. Relators allege that the requirements set forth in La. R.S. 13:3667.3(C) were not met to warrant the issuance of the subpoenas and that an administrative law judge, rather than the Louisiana Board of Ethics, should have decided whether the subpoenas should issue. For the following reasons, we hereby grant the writ application and quash the subpoenas.
The Louisiana Board of Ethics ("the Board") is pursuing charges against John Rombach, a former legislative fiscal officer, for alleged misconduct relative to his receipt of per diem allotments, retroactive pay, and vehicle allowances ("Rombach proceedings").1 In connection therewith, both Rombach and the Board's trial attorney (sometimes referred to as "movers") filed motions requesting that subpoenas issue to Senator Donald Hines and Representative Joe Salter. Additionally, Rombach also requested that a subpoena issue to Senator Francis Heitmeier. Rombach's motion states that he would like to issue subpoenas to the legislators "to provide testimony regarding the allegations at issue in the case" and that "[a]ll have direct knowledge regarding relevant practices and customary policy that bear directly on the allegations at issue." The Rombach motion also provided:
Senator Donald Hines, Representative Joe Salter, and Chairman Francis Heitmeier will be asked to testify as to the customary and long standing policy of the State of Louisiana regarding per diem, retroactive pay, and car allowance. Further they will be asked detailed questions regarding these issues as they relate to Legislative Auditor Steven Theriot. They will be asked other questions under oath regarding pertinent issues as they bear on the allegations at issue. They will not be challenged on their actions such that it would invoke the privilege set forth in Louisiana Constitution Article III, Section 8.
Likewise, the trial attorney's motion provided:
The trial attorney would like to [issue] subpoenas to both the President of the Senate, Donald Hines, and the Speaker of the House, Joe Salter, to provide testimony as to whether the Joint Legislative Committee on the Budget, over [] which they served as chairman, reviewed and approved the payments that are the subject of the charges.
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Senator Donald Hines and Representative Joe Salter will simply be asked questions as witnesses as to facts surrounding whether payments were approved. They will not be challenged on their actions such that it would invoke the privilege set forth in Louisiana Constitution Article III, Section 8.
At its September 13, 2007, meeting, the Board, in accord with La. R.S. 13:3667.3(C)(l)(a), apparently found that the motions were well-founded, that denial of the motions would prejudice the case of the movers, and that the testimony sought was not protected by the legislative privilege found in La. Const. art. Ill, § 8. The Board, pursuant to the statute, ordered a hearing, and sent notice of the hearing to the legislators to whom the subpoenas would issue, the attorney general, the clerk of the House of Representatives, and the secretary of the Senate. La. R.S. 13:3667.3(C)(l)(a) and (C)(2)(a).
Senators Heitmeier and Hines and Representative Salter ("reiators") filed two motions prior to the hearing. Reiators' first motion sought to have an administrative law judge, as opposed to the Board, appointed to conduct the hearing. The second motion objected to the sufficiency of the motions and hearing notices insofar as reiators alleged that neither the movers nor the Board complied with the strict requirements of La. R.S. 13:3667.3(C). Moreover, reiators filed a "Memorandum Regarding Legislative Privilege" wherein they alleged that the information sought is protected by the legislative privilege found in Louisiana Const, art. III, § 8.
Following the December 13, 2007, adversarial hearing, the Board denied both of relators' motions and ordered that the subpoenas issue. Relators thereafter sought review of the Board's ruling by filing a writ application with the Louisiana Supreme Court. The Louisiana Supreme Court found that it had no jurisdiction to consider the matter2 and transferred the matter to this court for consideration of the merits of relators' application.3 On March 28, 2008, we granted certiorari in this matter and stayed the December 13, 2007, Board ruling pending further orders of this court.
(1) Did the motions seeking the issuance of subpoenas comply with the requirements of La. R.S. 13:3667.3(C)?
(2) Are the proceedings, findings, determinations, and orders of the Board contrary to fact and law, and in particular, La. R.S. 13:3667.3(C), requiring "strict conformity" with its statutory provisions, and La. Const. art. III, §8?
(3) Did the Board err as a matter of law and fact on September 13, 2007, in granting the motions and ordering the scheduling of an adversarial proceeding on whether the relators' testimony was necessary and whether the legislative privilege was inapplicable to the testimony sought from them?
(4) Did the Board err as a matter of law in failing to appoint an administrative law judge to conduct the adversarial hearing?
(5) Did the Board err as a matter of law and fact on December 13, 2007, in ruling that the motions and Board proceedings were in compliance with La. R.S. 13:3667.3(C)?
(6) Did the Board err as a matter of law and fact on December 13, 2007, in its conducting of the adversarial proceeding required under La. R.S. 13:3667.3(C) by not fully allowing relators to present argument and evidence in opposition to the issuance of the subpoenas?
(7) Did the Board err as a matter of law and fact on December 13, 2007, in finding that testimony of relators was necessary and that the legislative privilege was not applicable to such testimony?
(8) Did the Board err as a matter of law and fact on December 13, 2007, in ordering the issuance of the subpoenas to relators?
Louisiana Revised Statute 13:3667.3(C), 2006 La. Acts No. 690, § 2, provides, in pertinent part, as follows:
(1)(a) Any party to an administrative proceeding seeking to compel the attendance of a member of the legislature, in his capacity as a state lawmaker, as a witness or deponent in the proceeding shall file a written motion with the agency, subordinate presiding officer, or administrative law judge, as applicable, requesting a hearing on the matter. The motion shall set forth the facts sought to be proved by the member's testimony, the relevance of those facts to the proceeding, the basis for the mover's belief that the member has personal knowledge of those facts, and a statement as to why such testimony is not otherwise privileged under the privileges and immunities provision of Article III, Section 8 of the Louisiana Constitution. If the agency, subordinate presiding officer, or administrative law judge, as applicable, determines that the motion is well-founded, that denial of the motion may prejudice the case of the mover, and that the mover has made a sound argument supported in law and jurisprudence that the legislative privilege is inapplicable to the facts sought to be proved, the agency, subordinate presiding officer, or administrative law judge, as applicable, shall order a hearing in accordance with Paragraph (2) of this Subsection.
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(2) Prior to the issuance of a subpoena commanding the appearance or testimony of a member of the legislature pursuant to Paragraph (1) of this Subsection, a hearing shall be conducted in accordance with the following provisions:
(a) Notice of the hearing must be provided to all parties, the member, and the attorney general. In the case of a member of the Louisiana House of Representatives, notice must also be made to the clerk of the House of Representatives and in the case of a member of the Louisiana Senate, notice must also be made upon the secretary of the Louisiana Senate at their respective offices in the State Capitol building.
(b) Notice may be served by sheriff or by certified mail, return receipt requested, a minimum of fifteen days prior to the date of the hearing.
(c) The content of the notice shall include the facts sought to be proved by the member's testimony, the relevance of those facts to the proceeding, the basis for the belief that the member has personal knowledge of those facts, and a supported statement as to why such testimony is not otherwise privileged under the privileges and...
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