In re Sneed
| Decision Date | 07 October 2013 |
| Docket Number | 2012 CW 1849 |
| Parties | BOARD OF ETHICS IN THE MATTER OF JENNIFER SNEED |
| Court | Court of Appeal of Louisiana — District of US |
BOARD OF ETHICS IN THE MATTER OF JENNIFER SNEED
2012 CW 1849
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Judgment Rendered: October 7, 2013
Pauline F. Hardin
New Orleans, Louisiana
Virginia W. Gundlach
New Orleans, Louisiana
Attorneys for Relator
Jennifer Snced
Kathleen M. Allen
Michael Dupree
Tracy M. Barker
Baton Rouge, Louisiana
Attorneys for Respondent
Louisiana Board of Ethics
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McDONALD, J.
In this Code of Governmental Ethics enforcement action, a former member of the Jefferson Parish Council challenges the Louisiana Ethics Adjudicatory Board's denial of her peremptory exception raising the objection of prescription, which she raised in response to the Louisiana Board of Ethics' charge alleging she violated La. R.S. 42:1124.2 by failing to timely file a Personal Financial Disclosure Statement. We grant a writ of certiorari and render judgment dismissing the case for the reasons set forth below.
Jennifer Sneed began serving as a member of the Jefferson Parish Council in .la nary of 2004. Several years later, in 2008, the Louisiana Legislature substantially revised the Code of Governmental Ethics; included in the changes was the creation of new laws that expand the disclosure requirements applicable to public office holders like Ms. Sneed.
One of the new laws, La. R.S. 42:1124.2, requires public office holders representing a voting district with a population of five thousand or more persons to file a Personal Financial Disclosure Statement (''Statement"). The Statement requires the disclosure of personal financial information regarding both the public officer and the public officer's spouse, including information about their business ownership interests (if exceeding ten percent of the business), the amount of income they derive from their respective employers and businesses, their immovable property and investment security interests, and their loans and liabilities.1 The statute requires that the Statement be filed by May 15th of each year during which the person holds office and by May 15th of the year following the termination of the holding of such office. Failure to timely file the Statement
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required by La. R.S. 42:1124.2 subjects the public officer to civil and criminal penalties. See La. R.S. 42:1124.4.
The enacting legislation for La. R.S. 42:1124.2 provided that the statute would take effect on January 1, 2009. See Act 1, Section 6 of the 2008 First Extraordinary Session. However, subsequent legislation stipulated that any person holding an office or position on or after July 1, 2008 would be required to file the Statement.2 See Act 162, Section 6 of the 2008 Regular Session. Act 162 was only signed into law on June 12, 2008; therefore, the legislation gave public officers like Ms. Sneed less than one month of notice before they became subject to the extensive new disclosure obligations set forth in La. R.S. 42:1124.2. Id.
After La. R.S. 42:1124.2 was passed into law but before it took effect, on August 22, 2008, Ms. Sneed resigned from office. Ms. Sneed did not file the Statement on or before May 15, 2009. The failure of Ms. Sneed to file the Statement in May of 2009 prompted the Louisiana Board of Ethics (the "Board") to investigate.
The first action taken by the Board was to transmit a delinquency notice to Ms. Sneed in June of 2010, more than a year after the alleged violation of La. R.S. 42:1124.2. The notice was returned to the Board unclaimed. On September 27, 2C 10, the Board successfully served a delinquency notice on Ms. Sneed; the notice gave Ms. Sneed fourteen business days to file the Statement or submit an answer contesting the allegations. Ms. Sneed, through counsel, timely filed an answer disputing the Board's allegation that she was required to file the La. R.S. 42:1124.2 Statement in light of the fact that she left public office before the statute took
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effect. Ms. Sneed asserted that it would be unconstitutional to retroactively apply La. R.S. 42:1124.2 to persons who were not in office at the time the law took effect.
The Board rejected Ms. Sneed's claim that La. R.S. 42:1124.2 did not apply to her, positing that Ms. Sneed was required to file the Statement because she did not terminate her service on the Jefferson Parish Council before July 1, 2008, the pivotal date set forth by Act 162. The Board's decision was memorialized in a letler written to Ms. Sneed's counsel that was dated December 8, 2010. In its letter, the Board gave Ms. Sneed fourteen business days to file the Statement and indicated that failure to do so would subject her to an automatic late filing fee of $100 per day, up to a maximum of $2,500, and would result in the matter being placed before the Board for further action. Ms. Sneed did not file the Statement.
As a result of Ms. Sneed's failure to file the Statement, the Board voted on September 15, 2011 to issue a charge against Ms. Sneed; the charge was then filed on October 28, 201 L The charge sought civil penalties pursuant to La. R.S. 42:1124.4 on grounds that Ms. Sneed violated La. R.S. 42:1124.2 by failing to file the Statement on or before May 15, 2009.
In response to the charge, Ms. Sneed filed exceptions raising the objections of no cause of action, lack of subject matter jurisdiction, and prescription. In the no cause of action exception, Ms. Sneed contended that the charge did not state a cause of action because it was unconstitutional to apply La. R.S. 42:1124.2 to her given that she no longer held public office when this statute took effect. In the lack of subject matter jurisdiction exception, Ms. Sneed contended that the Louisiana Ethics Adjudicatory Board (the "Adjudicatory Board") lacked jurisdiction to decide the constitutional issue raised by the application of La. R.S. 42:1124.2 to her. And lastly, in the prescription exception, Ms. Sneed contended that the Board exceeded the two-year prescriptive period set forth in La. R.S. 42:1163, which
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requires the Board to take action to enforce a provision of the Code of Governmental Ethics within two years following the discovery of the occurrence of the alleged violation, because she contended the period commenced to run on May 15, 2009, the date her Statement was allegedly due, yet the Board did not file its charge until October 28, 2011, more than two years later.
The hearing on Ms. Sneed's exceptions began on July 13, 2012. Rather than conclude the hearing on that date, the Adjudicatory Board ordered the Board to supplement the record with evidence with respect to when it discovered that Ms. Sneed had not filed a Statement, recessed the hearing, and ordered that the hearing resume in September. Before the hearing resumed, the Board filed into the record the affidavit of a Board employee, with a computer log attached thereto, as evidence that the Board discovered Ms. Sneed's failure to file the Statement on February 19, 2010. The hearing concluded on September 28, 2012.
The Adjudicatory Board subsequently denied Ms. Sneed's exception of prescription in a decision issued on October 9, 2012. The Adjudicatory Board based its decision on its finding that the Board discovered the alleged violation on February 19, 2010, and took action to enforce the provision on September 15, 2011, less than two years later. The Adjudicatory Board pretermitted consideration of the peremptory exceptions of no cause of action and lack of subject matter jurisdiction in light of the constitutional issues raised therein.
Ms. Sneed now requests review of the Adjudicatory Board's October 9, 2012 decision pursuant to our supervisory jurisdiction.
Louisiana Revised Statutes 42:1163 sets forth the following two prescriptive periods to limit the time within which the Board may bring an action to enforce the Code of Governmental Ethics:
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No action to enforce any provision of [the Code of Governmental Ethics] shall be commenced after the expiration of two years following the discovery of the occurrence of the alleged violation, or four years after the occurrence of the alleged violation, whichever period is shorter.
At issue herein is when the discovery of the occurrence of the alleged violation occurred to trigger the running of the two-year prescriptive period and when the Board took action to enforce La. R.S. 42:1124.2, the provision of the Code of Governmental Ethics that Ms. Sneed allegedly violated.
The Board argued, and the Adjudicatory Board agreed, that the two-year period commenced to run on February 19, 2010, the date the Board actually discovered Ms. Sneed's failure to file the Statement according to the evidence the Board filed into the record. Ms. Sneed argued that the two-year prescriptive period commenced to run on May 15, 2009, the date the Statement was allegedly due, because this is the date the Board should have known that the alleged violation occurred. Ms. Sneed's...
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