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Board of Ethics ex rel. Monsour

Supreme Court of Louisiana

May 1, 2018

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

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, LOUISIANA BOARD OF ETHICS

          PER CURIAM

         In this case, we are called upon to decide whether certain provisions of the Louisiana Code of Civil Procedure apply to a motion for summary judgment filed in administrative proceedings before the Ethics Adjudicatory Board. For the reasons that follow, we conclude the evidence produced in connection with motions for summary judgment in these administrative proceedings must conform to the same requirements applicable to civil proceedings.

         FACTS AND PROCEDURAL HISTORY

         The Board of Ethics ("Board") filed formal charges against respondents, Walter Monsour and Jordan Monsour. Respondents filed separate motions for summary judgment with the Ethics Adjudicatory Board ("EAB"), seeking dismissal of the charges and attaching exhibits in support of their motions for summary judgment. The Board opposed the motions and attached exhibits in support of its opposition.

         Respondents filed a reply memorandum. In support, they argued the exhibits attached to the Board's opposition did not constitute competent evidence because they were unsworn, unverified, and not self-proving.

         The EAB denied respondents' objections to the Board's exhibits and admitted them into evidence. At the end of the hearing, the EAB took the motion for summary judgment under advisement.

         Respondents sought supervisory review from the ruling admitting the exhibits into evidence. The court of appeal found the EAB erred in admitting the Board's exhibits, because these exhibits did not meet the requirements of La. Code Civ. P. arts. 966 and 967. Accordingly, the court reversed the EAB's ruling and remanded for further proceedings. Two judges dissented in part, and would have allowed the Board, on remand, to submit competent evidence prior to a ruling on the motion for summary judgment. Board of Ethics in the Matter of Jordan Mansour and Walter Mansour, 16-1159 (La.App. 1st Cir. 6/21/17).

         Upon application of the Board, we granted certiorari to consider the correctness of this ruling. Board of Ethics in the Matter of Jordan Mansour and Walter Mansour, 12-1274 (La. 12/5/17), ___ So.3d ___ .

         DISCUSSION

         Pursuant to La. R.S. 42:1143, all proceedings before the EAB "shall be subject to and in accordance with the Administrative Procedure Act." The Board argues we should apply the provisions of La. R.S. 49:956(1) of the Administrative Procedures Act, which provides:

In adjudication proceedings:
(1) Agencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs. They shall give effect to the rules of privilege recognized by law. Agencies may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form. [emphasis added].

         The Board asserts that because this statute is phrased in permissive terms, the EAB may exclude incompetent evidence but is not required to do so. Thus, it contends the decision to consider evidence which would otherwise be incompetent ...


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