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In re Monsour

Court of Appeals of Louisiana, First Circuit

June 21, 2017

BOARD OF ETHICS IN THE MATTER OF JORDAN MONSOUR AND WALTER MONSOUR

         Appealed from The Ethics Adjudicatory Board Division of Administrative Law State of Louisiana Case No. 2015-14967 - Ethics A The Honorable Adaora Chukudebelu The Honorable Romaine White The Honorable A. Brock Avery

          Scott E. Frazier Baton Rouge, Louisiana Attorney for Applicant Walter Monsour

          Vivian Haley Williams Kathleen M. Allen Baton Rouge, Louisiana Attorneys for Respondent Louisiana Board of Ethics

          BEFORE: GUIDRY, PETTIGREW, McCLENDON, CRAIN, and THERIOT, JJ.

          GUIDRY, J.

         In this writ application, applicant, Walter Monsour, challenges the ruling of the Ethics Adjudicatory Board, Panel A, which overruled applicant's objections to exhibits submitted by the Board of Ethics in opposition to applicant's motion for summary judgment. For the following reasons, we reverse the evidentiary ruling of the Ethics Adjudicatory Board and remand for further proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Board of Ethics ("BOE") filed charges against Walter Monsour ("Walter"), alleging that he was employed as the President and Chief Executive Officer of the East Baton Rouge Redevelopment Authority ("RDA"), which owned a 49% interest in the East Baton Rouge Community Development Entity, LLC ("CDE"), at times during which his son, Jordan Monsour ("Jordan"), an attorney, represented clients in transactions with the RDA and CDE. The BOE further alleged that Jordan was compensated by the law firm that employed him for this representation, Walter did not submit a disqualification plan to the BOE, and therefore, as the agency head, Walter was deemed to have participated in all transactions involving his agency. The BOE alleged that Walter violated the provisions of La. R.S. 42:1112(B) and requested that penalties be assessed against Walter.[1]

         The BOE also filed charges against Jordan, alleging that Jordan did not file the required disclosure statements in violation of La. R.S. 42:1114(A). The BOE alleged that Jordan violated the provisions of La. R.S. 42:1113(A) and 42:1114(A) and requested that penalties be assessed against Jordan.

         In June, 2016, Walter and Jordan each filed a motion for summary judgment with the Ethics Adjudicatory Board ("EAB") seeking dismissal of the charges, attaching exhibits and a memorandum in support of their motions. The BOE filed a memorandum opposing each motion and the attached exhibits. Walter and Jordan each filed a reply memorandum in which they argued that the exhibits submitted by the BOE were not competent evidence and could not be considered by the EAB, asserting the documents were unsworn and unverified and were not self-proving.

         The BOE also moved to strike the expert affidavit of R. Gray Sexton submitted by both Walter and Jordan.[2] That motion was granted by the EAB, excluding the affidavit from evidence, based upon the panel's finding that it did not require the assistance of an expert and the affidavit would not assist the panel in adjudicating this matter.

         Jordan and Walter objected to the exhibits sought to be submitted by the BOE, arguing the documents submitted by the BOE were not submitted with an affidavit and were not certified, and accordingly, no competent evidence was submitted under the provisions of the Louisiana Code of Civil Procedure governing motions for summary judgment. In addition, Walter objected to the affidavit and documents marked as Exhibit 17, submitted by the BOE, because the affidavit was not notarized when it was submitted with the opposition to the motion. The EAB sustained the objections to Exhibit 17, the affidavit and the attachments thereto, because it was not in proper form and not authenticated. After questioning and confirming with counsel for the BOE that its exhibits were either produced by Jordan in discovery or by the RDA in response to a subpoena, the EAB overruled the objections to Exhibits 1 through 16 and 19 through 21[3] and admitted these exhibits into evidence.[4] At the end of the hearing, the EAB took the motion for summary judgment under advisement.

         Walter filed the instant writ application seeking review of the evidentiary ruling by the EAB, which admitted Exhibits 1 through 16 and 19 into evidence. The parties subsequently advised this Court that the EAB stayed this matter pending this ruling.

         STANDARD ...


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