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Lewnau v. The Board of Supervisors of Southern State University

Court of Appeals of Louisiana, First Circuit

January 9, 2020

ELAINE LEWNAU, CHRISTY MOLAND, TERRILYNN GILLIS, MARILYN SEIBERT, AND TOM ASWELL
v.
THE BOARD OF SUPERVISORS OF SOUTHERN STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE

          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C681213. The Honorable Richard "Chip" Moore III, Judge Presiding

          Winston G. DeCuir, Jr. Brandon DeCuir Baton Rouge, Louisiana Counsel for Defendant/Appellant Board of Supervisors of Southern University and Agricultural and Mechanical College

          J. Arthur Smith, III J. Arthur Smith, IV Baton Rouge, Louisiana Counsel for Plaintiffs/Appellees Elaine Lewnau, Christy Moland, Terrilynn Gillis, Marilyn Seibert, and Tom Aswell

          BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         In this case involving alleged violations of the Open Meetings Law, La. R.S. 42:11-28, the Board of Supervisors of Southern University and Agricultural and Mechanical College ("Southern") appeals a trial court judgment in favor of the plaintiffs. For the reasons set forth herein, we affirm and award additional attorney fees to the plaintiffs for defense of the appeal.

         FACTS AND PROCEDURAL HISTORY

         On November 20, 2018, current and former faculty members in the Department of Speech-Language Pathology and Audiology at Southern's Baton Rouge campus, Elaine Lewnau, Christy Moland, Terrilynn Gillis, and Marilyn Seibert, filed a joint grievance with Southern. The grievance sought to address employment matters, including the termination of Moland and Gillis, the removal of Lewnau as the Department of Speech-Language Pathology and Audiology's Graduate Program Director, the reduction of Seibert's regular teaching salary, and a number of allegedly illegal workplace practices.

         On December 19, 2018, Tracie J. Woods, Associate Vice President for Human Resources for the Southern University System, notified Lewnau that Southern University System President-Chancellor Ray Belton had requested that the Southern University System Grievance Committee ("Grievance Committee") review the faculty members' joint grievance and make recommendations thereon. According to Woods's letter, the Grievance Committee would review the grievance, and a grievance hearing would be scheduled in 2019.

         Attached to the notice from Woods regarding the Grievance Committee review was a copy of Appendix F to the Faculty Handbook, entitled ""Faculty Grievance Procedures." According to the Faculty Grievance Procedures, the Board of Supervisors delegated its authority to handle certain categories of employee grievances to Southern's Baton Rouge campus, while reserving other types of grievances to itself and the System President. For those grievances for which complete administrative authority has been delegated to the Baton Rouge campus, the employee's right to administrative review of her grievance will be fully exhausted following the decision of the Chancellor of the Baton Rouge campus.[1] The Faculty Grievance Procedures states that the Chancellor of the Baton Rouge campus shall appoint a Grievance Committee[2] to serve as a factfinding body with regard to employee grievances and sets forth guidelines and procedures for hearings of the Grievance Committee. According to the procedures outlined therein, the Grievance Committee will make a recommendation to the Chancellor of the Baton Rouge campus for resolution of the grievance following a hearing. In grievances where the Board has delegated complete authority to the Baton Rouge Campus, there is no right to appeal the decision of the Chancellor.

         On February 19, 2019, Lewnau, Moland, Gillis, and Seibert each received an email from Maria Dickerson, Chairperson of the Grievance Committee, advising that the Grievance Committee would convene on March 18 and 19, 2019 to hear the joint grievance and requesting that they clear their schedules on those dates. The email further advised "you have a right to submit a witness list, documentary support, and evidentiary support in support of your position."

         Lewnau, Moland, Gillis, and Seibert attended the March 18 hearing in order to present their grievances to the committee. Tom Aswell, a professional journalist and investigative reporter who publishes an internet blog known as "The Louisiana Voice," in which he reports on matters involving Louisiana government and the activities of its officials, also attended the Grievance Committee meeting in order to report on the meeting through his blog. At the outset of the meeting, the chairperson asked Lewnau, Moland, Gillis, and Seibert whether they wished to have an open or closed meeting, and each responded, through counsel, that they wished to have an open meeting. Nevertheless, the chairperson announced that the meeting would be closed, as the Grievance Committee had previously voted in private to have a closed meeting. Aswell was involuntarily removed from the meeting room and not allowed to observe the proceedings, and following brief opening statements given by each, Lewnau, Moland, Gillis, and Seibert, along with their attorney, were involuntarily removed from the meeting room and not allowed to observe or participate in the meeting.

         On March 25, 2019, Lewnau, Moland, Gillis, Seibert, and Aswell (hereinafter "Plaintiffs") filed a petition against Southern pursuant to La. R.S. 42:25(C)[3], alleging that Southern's Grievance Committee violated the Louisiana Constitution[4] and the Open Meetings Law[5] when it voted in private to close the meeting to the public and when it removed the Plaintiffs and their attorney from the meeting. As such, Plaintiffs requested an injunction prohibiting Southern from applying, enforcing, or implementing any actions taken that were in violation of the Louisiana Constitution and the Open Meetings Law; a declaration that actions taken by the committee in violation of the law are null and void, as authorized by La. R.S. 42:24; and civil penalties, attorney fees, and costs, as authorized by La. R.S. 42:26 and 28.

         Southern filed an exception of no cause of action, asserting that the Open Meetings Law is inapplicable to the Grievance Committee, since the committee is not a "public body." Southern argued that the committee, which is appointed by the President-Chancellor and whose sole authority is to make a recommendation to the President-Chancellor, ...


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