ON APPEAL FROM THE ETHICS ADJUDICATORY BOARD - PANEL B. NUMBER 2012-15121-ETHICS-B, DIVISION OF ADMINISTRATIVE LAW STATE OF LOUISIANA. PANEL B OF THE HONORABLE ETHICS ADJUDICATORY BOARD. ROBERT N. AGUILUZ, PRESIDING ALJ.
[Copyrighted Material Omitted]
R. Gray Sexton, Alesia M. Ardoin, Baton Rouge, LA, Counsel for Relator Bob Ellis.
Kathleen M. Allen, Michael D. Dupree, Baton Rouge, LA, Counsel for Respondent Louisiana Board of Ethics.
BEFORE: KUHN, PETTIGREW, AND WELCH, JJ.
[2014 0112 La.App. 1 Cir. 2]
In this writ application, relator, Bob Ellis (Ellis), seeks review of a ruling of the Louisiana Ethics Adjudicatory Board (EAB) overruling his exception raising the objection of prematurity with respect to charges filed by respondent, the Louisiana Board of Ethics (the Board). For the following reasons, we grant relator's writ application, reverse the ruling of the EAB, and render judgment sustaining the exception of prematurity and dismissing the charges.
FACTS AND PROCEDURAL HISTORY
On September 20, 2004, Ellis was hired as a New Orleans City Attorney and continued as a full-time, salaried employee with the City Attorney until his resignation
on June 27, 2011. While employed with the City Attorney's Office, Ellis owned 50% of a consulting company known as Opus Consulting, LLC (Opus). On March 1, 2007, Opus entered into a working agreement with Benetech Group (Benetech), wherein Opus was to receive a 6% commission for the development of an exclusive list of projects for Benetech. The term of the agreement was for sixty months, terminating in February 2012.
From January 2008 through August 2008, Opus provided business consulting services to Benetech. Opus allegedly provided no further services to Benetech after August 2008. In October 2008, Benetech provided a $5,000.00 payment to Opus for services rendered. Additionally, Benetech LLC/JRDKS Construction LLC, a joint venture, entered into a contract with the City of New Orleans in October 2008.
On September 15, 2011, the Board voted to conduct a confidential investigation of Ellis for various potential violations of the Code of Governmental Ethics (Code of Ethics) connected to Opus's contract with Benetech and Benetech's contract with the City of New Orleans. Over ten months later, on [2014 0112 La.App. 1 Cir. 3] August 6, 2012, the Board contacted Ellis to set up an appointment for his first interview, which took place on August 14, 2012. Two days later, on August 16, 2014, at its regularly scheduled meeting, the Board voted to file charges against Ellis for violating provisions of the Code of Ethics, specifically La. R.S. 42:1111(C)(2)(d) (receipt of a thing of economic value in the form of compensation for services provided to Benetech) and La. R.S. 42:1112(B)(5) (participation by Ellis in a transaction involving his governmental entity and Benetech, while Ellis already had an existing contract with Benetch, and where by reason thereof he was in a position to directly affect his own economic interests).
The Board propounded its first set of discovery on Ellis, on March 12, 2013, and on April 5, 2013, filed a motion to compel discovery, alleging that, in violation of La. C.C.P. art. 1458, Ellis had failed to file any responses. On the same date that the Board filed its motion to compel discovery, Ellis filed a motion to stay [2014 0112 La.App. 1 Cir. 4] discovery, as well as a motion for summary disposition (i.e., summary judgment) and an exception
raising the objection of prematurity. In the motion for summary disposition, Ellis asserted that the Board did not have factual support for any of the essential elements of the alleged violations of the Ethics Code with which he was charged. The exception of prematurity was based on his contention that the charges should be dismissed because the Board did not complete its investigation prior to filing charges against him, which constituted a violation of La. R.S. 42.1141(C).
Ellis argued that for reasons unattributable to him, the Board did not begin its investigation until approximately a month before the accrual of the applicable one-year prescriptive period provided by La. R.S. 42:1141(C)(3)(c). He asserts that, in an attempt to prevent the matter from prescribing, the Board voted to file formal charges against him without actually investigating the validity of the charges, and then it endeavored thereafter to combine the investigatory and prosecutorial processes to make its case against him. Ellis argued that if the Board was unable to produce factual support sufficient to satisfy its evidentiary burden at the hearing for summary disposition without relying on his discovery responses to meet this burden, then it is clear that the Board prematurely filed charges prior to the completion of the investigation.
A hearing on the opposing discovery motions and Ellis' exception of prematurity was held on July 31, 2013, after which the EAB took the matter under [2014 0112 La.App. 1 Cir. 5] advisement. Prior to any ruling by the EAB, this Court issued two decisions ...