Parish of Jefferson v. Hous. Auth. of Jefferson Parish

Citation234 So.3d 207
Decision Date13 December 2017
Docket NumberNO. 17–CA–272,17–CA–272
Parties PARISH OF JEFFERSON v. HOUSING AUTHORITY OF JEFFERSON PARISH and James Lawson, Jr., Chairman of the Board of Commissioners of Housing Authority of Jefferson, and Joseph Fennidy
CourtCourt of Appeal of Louisiana (US)

234 So.3d 207

PARISH OF JEFFERSON
v.
HOUSING AUTHORITY OF JEFFERSON PARISH and James Lawson, Jr., Chairman of the Board of Commissioners of Housing Authority of Jefferson, and Joseph Fennidy

NO. 17–CA–272

Court of Appeal of Louisiana, Fifth Circuit.

December 13, 2017


COUNSEL FOR PLAINTIFF/APPELLEE, PARISH OF JEFFERSON, Michael J. Power, Loren C. Marino, P. Hanlon deVerges, Jr., Brad M. Richard

COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH FENNIDY, Robert T. Garrity, Jr.

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

CHAISSON, J.

This case involves a dispute regarding the correct dates of the terms of office for the nine commissioners of the Housing Authority of Jefferson Parish (hereinafter "the Housing Authority") and a dispute regarding who, of two individuals, is the duly appointed commissioner representing Council At–Large Division "B" (hereinafter "Seat Four") of the Housing Authority.1 One of those individuals, Joseph Fennidy, appeals the judgment of the trial court that declared David Martinez the duly appointed commissioner for Seat Four and permanently enjoined Mr. Fennidy from acting as a member of the Housing Authority, and further permanently enjoined James E. Lawson, Jr., the chairman of the Housing Authority, from seating Mr. Fennidy at meetings of the Housing Authority. For the reasons that follow, we vacate that portion of the trial court's judgment that declared Mr. Martinez the duly appointed commissioner for Seat Four and render judgment declaring Mr. Fennidy the duly appointed commissioner for Seat Four. We further vacate that portion of the trial court's judgment that issued permanent injunctions against Mr. Fennidy and Mr. Lawson.

FACTS AND PROCEDURAL HISTORY

On March 13, 2013, the Jefferson Parish Council adopted a resolution appointing Reverend James Brown, Jr. as commissioner for Seat Four of the Housing Authority. This resolution did not indicate the dates of the term of office to which Reverend Brown was appointed. Two weeks later, on March 27, 2013, the Council adopted a resolution appointing Joseph Fennidy as commissioner for the same seat to which it had appointed Reverend Brown. This resolution, like the one appointing Reverend Brown, did not indicate the dates of the term of office to which Mr. Fennidy was appointed. Furthermore, although it did indicate that Mr. Fennidy was replacing Reverend Brown, it did not indicate the reason why Reverend Brown was being replaced after only two weeks. Reverend Brown never qualified for the office by taking the oath of office pursuant to La. R.S. 42:141(A). Mr. Fennidy took the oath of office and served as commissioner for Seat Four during the next three years, with apparently no questions having been raised as to the validity of his appointment

234 So.3d 210

or his authority to act as a commissioner of the Housing Authority.

On June 8, 2016, the Jefferson Parish Council adopted a resolution appointing David Martinez as commissioner for Seat Four of the Housing Authority. Like the resolutions appointing his two predecessors, this resolution did not indicate the dates of the term of office to which Mr. Martinez was appointed. Furthermore, although it did indicate that Mr. Martinez was replacing Mr. Fennidy, it did not indicate the reason why Mr. Fennidy was being replaced at that particular point in time. Subsequent to the adoption of this resolution, James E. Lawson, Jr., the chairman of the Housing Authority, noticed a meeting of the Housing Authority. Mr. Lawson, taking the position that Mr. Fennidy's term of office had not expired, that Mr. Fennidy had not been removed from his position, and that Mr. Martinez was therefore not properly appointed, provided notice of the meeting to Mr. Fennidy, but failed to provide notice of the meeting to Mr. Martinez. Due to this impasse regarding the competing claims of Mr. Fennidy and Mr. Martinez as the duly appointed commissioner for Seat Four, and the apparent disagreement and confusion regarding the correct dates of the terms of office for all nine commissioners of the Housing Authority, the Parish of Jefferson (hereinafter "the Parish") filed a Petition for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment on June 28, 2016.2

In its petition, the Parish alleged that Mr. Fennidy was appointed to finish the unexpired term of Reverend Brown, and that the term expired on July 16, 2013. The Parish further alleged that, pursuant to La. R.S. 40:532(A), Mr. Fennidy was merely continuing to serve until his successor was duly appointed, which occurred over three years later on June 8, 2016, when the Parish appointed Mr. Martinez.3 After subsequent research, the Parish determined that the term of office to which Mr. Fennidy was appointed commenced on February 10, 2013, and will end on February 10, 2018. Therefore, at the trial of the Permanent Injunction and Declaratory Judgment, the Parish abandoned its position that Mr. Fennidy's term of office had expired on July 16, 2013, as alleged in its petition. Instead, the Parish took the position that Mr. Fennidy was never validly appointed to the Housing Authority because Seat Four was not vacant at the time of Mr. Fennidy's purported appointment, Reverend Brown having been appointed to the seat two weeks earlier. The Parish reasoned that after the appointment of Reverend Brown on March 13, 2013, the seat was occupied by Reverend Brown, and thus not vacant, and that the earliest date upon which Seat Four could have again become vacant due to Reverend Brown's failure to take his oath of office, was April 12, 2013, which was the end of the thirty-day period that the law allows a public officer, after receipt of his commission, to qualify for his office by taking the oath of office.4 The Parish argues therefore that Mr. Fennidy's appointment on March 27, 2013, was not valid because Seat Four was occupied by Reverend Brown on that date and thus was not a vacant seat available for a new appointment.

234 So.3d 211

In support of its argument that Seat Four was not vacant at the time of Mr. Fennidy's purported appointment, the Parish, over the objection of Mr. Fennidy, called attorney Rubye Noble, a Parish employee, as an expert witness "in legislative analysis inclusive of state and municipal legislation." The trial court accepted Ms. Noble as an expert in the field of legislative analysis and allowed her to testify. Subsequent to the trial of the Permanent Injunction and Declaratory Judgment, the trial court rendered judgment that declared the correct terms of office for all nine seats of the Housing Authority, as per the stipulation of the parties; declared Mr. Martinez the duly appointed commissioner for Seat Four; and permanently enjoined Mr. Fennidy from acting as a member of the Housing Authority, and further permanently enjoined Mr. Lawson from seating Mr. Fennidy at meetings of the Housing Authority. Mr. Fennidy now appeals that portion of the judgment that declares Mr. Martinez the duly appointed commissioner for Seat Four, and further appeals the injunctions issued against him and Mr. Lawson.

In his appeal, Mr. Fennidy states his sole assignment of error as follows: "Whether the trial court abused its discretion by admitting into evidence the expert testimony of Rubye Noble, an attorney employed by the Parish of Jefferson, if her legal interpretation was based on insufficient facts and her interpretation of law was incorrect."5

DISCUSSION

La. R.S. 40:534 provides that "[a] certificate of appointment ... shall be conclusive evidence of the proper appointment of such commissioner." The Parish relies upon this provision to support its appointment of Mr. Martinez as the last valid appointment made to Seat Four. We agree with the trial court's interpretation of this provision, and its analysis that the certificate of appointment being conclusive evidence of a proper appointment, does not render the certificate unassailable, but rather creates a presumption of its validity that may be rebutted by an opponent of the certificate.6 In order to rebut the presumption of the validity of the certificate of appointment of Mr. Martinez, Mr. Fennidy produced the certificate of appointment whereby he was appointed to the same seat during the same term of office prior to the appointment of Mr. Martinez. The certificate of authority appointing Mr. Fennidy is entitled to the same presumption of validity, and thus the burden was on the Parish to rebut the presumption of validity of the prior certificate appointing Mr. Fennidy. The Parish argues that the certificate of appointment of Mr. Fennidy is not valid because Seat Four was occupied by Reverend Brown on the date that the resolution appointing

234 So.3d 212

Mr. Fennidy was adopted, and that none of the circumstances that would create a vacancy in the seat had occurred as of that date. In order to support its argument and meet its burden, the Parish called Ms. Noble as "an expert in legislative analysis inclusive of state and municipal legislation." The Parish specifically questioned Ms. Noble regarding interpretation of state statutes regarding how a vacancy is created by failure of the appointee to take the oath of office and regarding how a vacancy is created by resignation...

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