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Barnett v. Louisiana Board of Ethics

Court of Appeals of Louisiana, First Circuit

June 20, 2019

MICHELLE BARNETT
v.
LOUISIANA BOARD OF ETHICS

          Appealed from the Ethics Adjudicatory Board State of Louisiana, Division of Administrative Law Docket No. 2015-0662-Ethics-B. Administrative Law Judges Sabra Matheny, Janet Waguespack and Patrick Moore

          David A. Lowe Counsel for Plaintiff/Appellant Baton Rouge, LA Michelle Barnett.

          Kathleen M. Allen Counsel for Defendant/Appellee Suzanne Q. Mooney Louisiana Board of Ethics Tracy M. Barker Baton Rouge, LA.

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          GUIDRY, J.

         Michelle Barnett appeals from a decision of the Ethics Adjudicatory Board (EAB) denying her exception raising the objection of prematurity.[1] For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Michelle Barnett is an employee of the Louisiana Department of Health and Hospitals (DHH). Barnett was originally hired by DHH as a Medicaid Program Manager 2 in the Medical Vendor Administration. (R. 430-436) Barnett was subsequently promoted to Program Manager 2 in the Office of Behavioral Health (OBH), Division of Development, Business Intelligence Section in September 2011. (R. 437) In this capacity, Barnett served as manager of the Electronic Behavioral Health Record System (EBHRS), where she was responsible for managing an effective, ongoing data exchange with the Statewide Management Organization (SMO). SMO manages behavioral health services for Medicaid and Non-Medicaid eligible populations served by OBH. (R. 438) Magellan Health Services (Magellan) was selected SMO and entered into a contract with DHH/OBH on November 17, 2011. In July 2012, Tom Barnett, Barnett's husband, was hired by Magellan as a Senior Network Business Analyst, with job duties including analysis and production of reports in support of the Magellan provider network for OBH. (R. 3)

         In February 2013, Barnett's job duties were reclassified to provide that she would be working with a team, including SMO staff, to create reports and summaries based on data submitted by Magellan to measure the performance of the SMO. (R. 316-319) Barnett thereafter disclosed to DHH in October 2013 that her husband worked for Magellan, and DHH subsequently moved Barnett to another Program Manager 2 position that was not involved in the Magellan contract. The DHH-Bureau of Legal Services thereafter reported the foregoing to the Ethics Administrator for review for potential violations of the Code of Governmental Ethics (Code of Ethics). (R. 422-423)

         At its March 2014 meeting, the Louisiana Board of Ethics (BOE) voted to instruct its staff to conduct a confidential investigation into whether Barnett violated La. R.S. 42:1111(C)(2)(d) by virtue of her receipt of a thing of economic value from Magellan at a time when her agency had a business, contractual or financial relationship with Magellan.[2] (R. 262) Following an investigation, the BOE completed an investigative report on October 31, 2014. (R. 253)

         The BOE subsequently filed charges against Barnett on January 16, 2015, for a potential violation of La. R.S. 42:1111(C)(2)(d), which provides that no public servant and no legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent shall receive anything of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are neither performed nor compensated by any person from whom such public servant would be prohibited by La. R.S. 42:1115(A)(1) or (B) from receiving a gift. The BOE alleged that Barnett violated the foregoing statute by virtue of her receipt of a thing of economic value for services provided by Magellan by her husband at a time when she was employed by DHH and at a time when Magellan had a contractual or other business or financial relationship with DHH. The BOE requested that the EAB conduct a hearing on these charges, determine whether Barnett violated La. R.S. 42:1111(C)(2)(d), and assess appropriate penalties. (R. 6)

         Barnett thereafter filed exceptions raising the objections of prescription and prematurity. Barnett asserted that the charges were prescribed before they were filed because the BOE failed to file the charges within one year of the date on which it received a sworn complaint. Additionally, Barnett asserted that the charges were premature, because the BOE had not completed its investigation and could not establish a prima facie case in support of the charges at the time it filed them. (R. 135)

         The EAB conducted a hearing on Barnett's exceptions on May 25, 2017, and subsequently signed an order on June 9, 2017, denying Barnett's exceptions. The clerk's certificate indicated that a copy of the order had been transmitted to all parties. However, during a telephone status conference on October 4, 2017, counsel for Barnett indicated that he did not receive the June 9, 2017 order. The EAB resent the order to counsel's email on October 6, 2017. (R. 1)

         On October 25, 2017, counsel for Barnett filed a Notice of Intent to Apply for Supervisory Writs, requesting the EAB to set a return date for filing an application for writs with this court. (R. 555) The BOE filed an opposition based on untimeliness, but the trial court denied the BOE's opposition and set a return date. (R. 589) This court, finding that the order denying Barnett's exceptions was appealable pursuant to La. R.S. 42:1142, granted Barnett's writ application for the sole purpose of remanding the matter to the EAB with instructions to grant an appeal to Barnett pursuant to the October 25, 2017 Notice of Intent to Apply for Supervisory Writ. (R. 597). Barnett thereafter filed a motion for devolutive appeal with the EAB. (R. 601)

         DISCUSSION

         Standard ...


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