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In re Savoie

Court of Appeals of Louisiana, First Circuit

August 7, 2017

BOARD OF ETHICS IN THE MATTER OF CLARENCE SAVOIE, II, ET AL

         On Supervisory Writ from the Ethics Adjudicatory Board Suit No. 2015-14943-ETHICS-B, consolidated with 2015-14951-ETHICS Division of Administrative Law The Honorable Charles Perrault, Karla Coreil, and Joycelyn Y. Elmore, Administrative Law Judges, Presiding

          R. Gray Sexton Jennifer L. Jackson Baton Rouge, Louisiana and Samuel J. Accardo, Jr. LaPlace, Louisiana Counsel for Plaintiffs/Relators C.J. Savoie Consulting Engineers, Inc. and Clarence Savoie, II.

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

          BEFORE: PETTIGREW, McDONALD, and PENZATO, JJ.

          PER CURIAM

         The relators, an engineer and his engineering firm, seek supervisory review of the denial of their motion for summary judgment filed with the Louisiana Ethics Adjudicatory Board. Concluding that the relators' remedy is not a supervisory writ, but an appeal as directed in La. R.S. 42:1142, we grant the writ for the limited purpose of remanding this matter to the Louisiana Ethics Adjudicatory Board with instruction to grant relators an appeal.

         PERTINENT FACTS AND PROCEDURAL HISTORY

         In November 2015 the Louisiana Board of Ethics (Ethics Board) voted to file charges against the relators, C.J. Savoie Consulting Engineers, Inc. and Clarence Savoie, II (sometimes collectively, Savoie Engineers), with the Louisiana Ethics Adjudicatory Board (EAB), the administrative body charged with conducting a hearing on the charges. The Ethics Board charged that Savoie Engineers violated conflict of interest laws while serving as Parish Engineer for St. John the Baptist Parish (sometimes, St. John Parish). Particularly, the Ethics Board charged that Savoie Engineers violated La. R.S. 42:1112(A) and La. R.S. 42:1113(A)(1)(a)[1] in that Savoie was a "public employee" as defined in La. R.S. 42:1102(18).[2]

         In June 2016 Savoie Engineers filed a "Motion and Memorandum in Support of a Summary Judgment" as allowed under Louisiana Administrative Code (LAC) § 52:1.1102 as a prehearing motion in the proceeding begun by the Ethics Board.[3]Primarily, Savoie Engineers alleged that they are not public employees and that they were an independent contractor working under contracts for professional services. The Ethics Board opposed the motion.

         The motion for summary judgment came for hearing before the EAB on August 4, 2016. The EAB took the motion under advisement, and in November 2016, the EAB rendered and transmitted a written "Order Denying Motion for Summary Judgment."

         On November 29, Savoie Engineers timely filed a notice of intent to file supervisory writs. The EAB set a return date of January 20, 2017. Savoie Engineers timely filed their writ application in which they raise three assignments of error:

1. The EAB erred as a matter of law when it held that the [Ethics Board's] conclusory evidence contradicted Savoie's affidavit evidence that certain services provided by Savoie to St. John Parish are not "governmental functions" that St. John Parish is required by law to provide for the benefit of the public.
2. The EAB erred as a matter of law when it held that the [Ethics Board's] conclusory evidence contradicted Savoie's affidavit evidence that Savoie did not provide professional engineering services under the "supervision or authority" of elected officials or other employees of St. John Parish.
3. The EAB erred as a matter of law when it held that the [Ethics Board's] conclusory evidence contradicted Savoie's affidavit evidence that Savoie did not perform "governmental functions" that the Public Bid Law requires St. John Parish to perform for the benefit of the public.

         DISCUSSION

         Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058 (La.App. 1 Cir. 9/12/01), 809 So.2d 258, 260. Here, both parties argue that the Louisiana Code of Civil Procedure governs the review of the motion for summary judgment at issue. EAB decisions are reviewed in accordance with the Louisiana Administrative Procedure Act (LAP A). "The LAP A was not intended to supersede the more specific provisions of other administrative acts[.]" Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 01-0185 (La. 10/16/01), 797 So.2d 656, 662; Corbello v. Sutton, 446 So.2d 301, 303 (La. 1984). "Rather, it was intended to create procedures in those instances where none exist." Metro Riverboat, 797 So.2d at 662.

         However, Part III of Chapter 15 of Title 42 of the Louisiana general statutes, La. R.S. 42:1132 et seq., the Code of Governmental Ethics, set out the specific provisions that govern the Ethics Board and the EAB. Particularly, La. R.S. 42:1142, entitled "Appeals, " governs review of actions taken by the EAB. This statute was amended by Acts 2012, No. 607, § 1, eff. June 7, 2012, to provide, in pertinent part, as follows:

A. (1) Whenever action is taken against any public servant or person by order of the Board of Ethics, or panel thereof, or by a final decision of the Ethics Adjudicatory Board, or by an agency head by order of the Board of Ethics, or panel thereof, or by a final decision of the Ethics Adjudicatory Board, or whenever any public servant or person is aggrieved by any action taken by the Board of Ethics, or panel thereof, or the Ethics Adjudicatory Board, he may appeal to the Court of Appeal, First Circuit. (Emphasis added.)

         While this statute does not specifically address preliminary, procedural, or intermediate actions, the version of the statute immediately preceding did. Acts 2008, 1st Ex. Sess. No. 24, § 1, eff. March 14, 2008, ...


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