LORRI BURGESS VS CITY OF BATON ROUGE, PARISH OF EAST BATON ROUGE AND DOUG MOREAU IN HIS CAPACITY AS DISTRICT ATTORNEY FOR THE 19TH JUDICIAL DISTRICT

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2005 CA 2565 LORRI BURGESS VERSUS THE CITY OF BATON ROUGE PARISH OF EAST BATON ROUGE AND DOUG MOREAU IN HIS CAPACITY AS DISTRICT ATTORNEY FOR THE 19TH JUDICIAL DISTRICT JtVW Judgment Rendered December If Appealed 28 2006 from the 19th Judicial District Court In and for the Parish of East Baton Rouge Louisiana Case No 527 496 The Honorable Timothy E Kelley Judge Presiding Christina B Peck Counsel for Plaintiff1Appellant Baton Lorri E Rouge Louisiana Counsel for DefendantlAppellee Wade Shows Lea Anne Batson City Gwendolyn K Brown Baton Rouge Louisiana East BEFORE Burgess of Baton Rouge Baton Rouge 1 Parish of KUHN GAIDRY AND WELCH JJ GAIDRY J This is action appeal of a an summary judgment determining the merits declaratory judgment seeking the interpretation of for government law following For the reasons we reverse of an local a the summary judgment FACTUAL AND PROCEDURAL BACKGROUND The LOTTi following relevant facts Burgess is a member of the are The undisputed plaintiff appellant Metropolitan Council of the consolidated government of the City of Baton Rouge Parish of East Baton Rouge City Parish 10 representing District governing body of the City Parish government was authorized Plan of Government effective January The 1 was The The City Parish The s of Plan s acts Government absence President as per diem compensated by President I a voters by a President Pro or the event of temporaty vacancy of after each election for the President Pro the President Pro monthly salary of the Tempore Tempore has historically Pro Since 1997 that contemplates acting Mayor President in the From 1981 to 1997 payments over disability or compensation fixed by ordinance Mayor President consolidated form of subsequently adopted by referendum of its of its members who also office s 1949 that executive officer that City Parish Council is the by constitutional amendment in 1946 and its Metropolitan Council shall be presided one Metropolitan the serving received as acting Tempore received Tempore has been 1 500 00 while acting as Mayor 1 Ordinance No 10804 fixed that through December 31 2000 period and was incorporated 2002 by Ordinance No 12533 salary The same in the for the four year period from January 1 1997 salary was in place during the next four year City Parish 2 s pay plan adopted on December 11 On March 9 at the No 1993 the Louisiana request of the East Baton Rouge Parish AttOlTIey 93 141 the President Pro Section 2 10 Atty Gen Op La prohibited a Pro as Mayor President and whether voting for himself for the Council member from The Tempore opinion answered both questions in negative Ms Burgess in J anuaty 2001 intended to was issued seek that or to as fOUl year a a as in to President Pro Ms for East Baton Attorney the election Section 2 10 City Parish and the district attOlTIey seeking casts a Tempore was written as Burgess instituted this action C ouncil member who defendants subject to Rouge Parish then as a vote on December 17 2004 defendants 2005 or set as naming the as to whether a for himself in the election for President prosecution after existing setting forth the essential declaratOlY judgment 2 10 of the Plan and forfeiture of his office allegations but praying for dismissal of the petition 3 any eliminated separately answered the petition admitting all Januaty as prohibited candidates for Tempore violates the provisions of Section Government and is She for themselves in the election Tempore from voting facts described above and Tempore January 2005 after being reelected per diem for the President Pro prior On President Pro Council member in that election position again The Parish term advisory opinion in December 2004 stating that unless an salaty elected and voted Council member Pro opinion prohibited the receipt of additional compensation by Tempore while acting position of President 0 an The issues addressed included whether Section 2 05 of 1993 the Plan of Government the Attorney General issued being nominated Burgess voted for herself but neither of the 3 on two of The of the factual its merits for the position Ms candidates received theh majority 12 2005 but On at An election necessary for election again January no candidate was 18 2005 the Louisiana Board of Ethics issued concluded that such authority a vote was improper but did for that conclusion in the On January 21 2005 an proceedings seeking 10 2 under the various did Ms Ms terms thereby forfeited of that sustained Ms cross exceptions Burgess s a in its 2 East Baton Metropolitan Council motions s court favor reasons or Burgess excepted s to lack of procedural were petition heard on the petition capacity on the merits May 9 2005 of intervention on as were The trial court to A6 s procedural At the conclusion of the summary ruled in favor of the City Parish granting declaring that Section 2 10 prohibits a in the election of Tempore A6 had also instituted for President Pro That action any It her office in the Metropolitan Council member from voting for himself President Pro Tempore intervened in the declinatory exception objecting judgment hearing the trial judgment A6 motion for summary judgment to A6 Council Burgess had violated capacity and dismissed its intervention summary provide a opinion Ms Ms provision Burgess The s as declaratOlY judgment that City Parish filed Burgess of propriety not an unincorporated association of grounds including the intervenor The as and a January opinion letter Rouge Parish citizens procedurally designated Section the on for himself in the election for President Pro voting on elected the request of another Council member member again attempted was a separate Tempore on the declaratory judgment same legal action against issue asserted in its consolidated for trial with the present action separate judgment signed on June 7 2005 was 4 the other candidate petition and of intervention was dismissed by The trial court 2005 August 17 judgment incorporating its rulings s Burgess has suspensivelyappealed Ms signed was on 3 STANDARD OF REVIEW The for judgment before final a in judgment rendered summary action an judgment or provides orders judgments La and decrees Thus this summary review novo Motorola Inc appropriate stated above resolution of this 19 11 the facts matter is as other declaratory judgment to whether summary judgment 878 So 2d 824 04 2323 04 2326 04 2327 La As as Associated Indemnity v 1st Cir 6 25 04 App may be reviewed declaratory judgments to the usual de subject a Louisiana Code of Civil Procedure atiicle 1877 decree that 1871 shall have the force and effect of declaratory judgment further p 5 a declaratory judgment Louisiana Code of Civil Procedure article provides that is is us was Corporation 02 0716 828 writs denied 04 2314 888 So 2d 207 211 212 04 in this matter solely dependent upon are our The undisputed determination of the legal issue presented Our review of that issue of law is likewise de novo DISCUSSION The Section 2 10 Ordinance of the provision or entitled City Parish s Plan of Government Members of Councils Resolution Duty sic Interested in R efrain From to at issue is Proposed and reads Voting as follows Any member of the Metropolitan Council who shall have any personal or private pecuniary interest in the adoption or passage of any ordinance resolution motion or measure by the Council shall declare such fact to said body and shall refrain from voting on the same at any time whether on final passage 3 Although motion instituted a intervention was the judgment is silent the trial comi in its oral devolutive Its appeal as to the comi reasons s disposition mled that it would of the trial court s of Ms Burgess s cross her motion deny judgment dismissing its petition A6 of consolidated with the present appeal However its appeal appeal dismissed for its failure to timely submit its appellate briefs in accordance with Rules was 2 8 6 and 2 12 7 ofthe Uniform Rules ofthe Courts of Appeal 5 Any person who shall violate the above provision shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding one hundred dollars or imprisonment for not more than sixty days or both fine and imprisonment at the discretion of the cOUli and shall otherwise or forfeit his office foregoing The obvious purpose of the Metropolitan involving private issue a Council member to conflict of interest by financial benefit from its Council member serving Council constitutes position to The distinct refrain from position the from voting of President Pro or Tempore of any Council Tempore for a Tempore are personal s the a any matter or legal for compensation a Metropolitan interest within the member Tempore is a seeking special position Council ordinmy office of Metropolitan Rouge Parish of President Pro salary on The ultimate passage private pecuniary or the first Metropolitan Council is of Baton or to reqUIre that in the election Immediately after taking office President Pro adoption requiring 2 10 meaning of Section voting of that member reason President Pro as personal a himself from the additional presented is whether elected recuse IS prOVISIOn to term elect one of their of four years East Baton set out duty of the members of own office or member a number newly to Plan of Government Rouge 9 2 07 4 be a City The duties of the in Section 4 05 The President Pro Tempore sic shall preside over the meetings of the Metropolitan Council with the right to speak and to vote If the Mayor President is absent from the Parish and City or otherwise temporarily disabled from performing his duties the President Pro Tempore sic shall act as Mayor President and in the case of a vacancy in the office of Mayor President shall hereinafter 4 A Metropolitan as such until the vacancy is filled as provided Council member falls within two of the officeholding serve serving as the specific exemptions to See La R S 42 66 A 7 D 6 Council the President Pro Tempore general prohibition against s thus dual Section 2 03 of the Plan of Govelnment member of the hold any other or office ofprofit under the United States the State of Louisiana with limited any political subdivision thereof fuIiher that provides and month that members of the salary of each councilman shall be Metropolitan Council shall receive these compensation of any or provisions might member from serving In fact the trial might in that position made for additional Section 2 03 to to allow to the payment of President Pro any Council preclude an office of made the former observation in its oral comi would be necessary 300 00 per compensation preclude to if it constitutes judgment stating that because Section was other position be read even no seem remuneration for the and Section 2 03 Tempore Section 2 05 exceptions xcept for travel allowances authorized by law the e glance At first he t n o shall while he holds such office Council Metropolitan that provides in pati a 2 10 compensation reasons enacted before was for the President Pro amend the Plan of Government candidate for President Pro Tempore profit for provision Tempore it presumably to vote in that election However additional capacity that do not read Section 2 05 compensation by the President or as Pro as precluding the receipt Tempore while serving acting Mayor President rather we of in that conclude it is limited to compensation received while acting in the capacity of Council member If the contrary interpretation is accepted however then fuIiher 5 we If analysis of the issue before us The no other we need conduct 5 no compensation may legally We Attorney General reached the same conclusion in Opinion No 93 141 as a interpret Section 2 05 C ouncil member is prohibited from contemplating that receiving additional monies for serving in the position of C ouncil member We do not interpret this section to prohibit the President Pro Tempore from receiving compensation for serving in the separate position of Acting Mayor La Atty Gen Op No 93 141 1993 7 be received preclude as no any vote by Ms Burgess for herself in pecuniary interest involved Tempore The words of La C C 11 art s Webster of Section 2 10 adjectives essentially are capacity s result as would a as meaning related to one and not also synonymous best capacity Metropolitan as other benefits members by at issue person in the to that as classification and that on to or derived in pecunimy interest way of by 2002 are a 8 requirement for s or measure December 11 that they both already be immediately evident enacted 12533 any the better public officeholder a explain the provision the member official private is or relating rather than by the nature of the particular action Ordinance No Thus sense Council member whether should 7 1998 s not Meniam personal adjective phrase personal private disclosure of such interest 6 6 has been defined private s the establishing given their generally prevailing meaning limit the pecuniary interest meant to or issue position public would be or even any ordinance Collegiate Dictionary 927 10th ed s interpretation This not at employment or private legality of salary is The term or the election for that and in those respects synonymous with position member personal law must be a holding public office the all however the Here President Pro at 2 10 would not Tempore then Section the President Pro by in the public salmy to the other being considered established a job code grade of 1 500 00 per month for the President Pro Tempore repealed February 23 2005 prior to the hearing on the motions for Thus it would no longer have presented a justiciable controversy summary judgment even if it had been placed at issue However the record suggests that the salary of 1 500 00 per month was still budgeted at the time of the hearing We proceed on the assumption that a salary may be paid in the future based upon the history evident from It salary pay was on the record 7 Likewise in individual as a legal sense opposed the tenn to the public private or is defined the govemment as r elating Black s belonging Dictionary or Law to an 1233 8th ed 2004 8 The phrase s use that the tenns ofthe personal Meniam Webster s conjunctive and supports this or private Collegiate Dictionary interpretation as considered synonymous in 867 927 lOth ed 1998 are 8 well as the fact ordinary usage foregoing considerations however do The Section 2 10 serves a purpose similar to those of La R S the Louisiana Code of Governmental Ethics La La R S 14 140 the criminal statute on the same subject conclude not matter must 42 1120 R S 42 1101 contract prohibiting public interpreted in reference be analysis our pmi of and et seq Laws fraud each other to La C C mi 13 Louisiana Revised Statutes 14 140 considerations addressed in earlier 99 1 and 2 on ordinances in which statutes and regulating police jurors they referendum in 1949 and has had not an enacted in 1942 but covered was Acts 1906 including council members municipal Section 2 10 interest was been amended since that time original version of the Louisiana Code of Governmental Ethics When our present state constitution existing home Iule charters e fuIiher that provided home rule charter Const art 6 the 9 12 or compensation mandate La 1974 a local to method governmental adopted by In 1964 the was enacted it authorized remain in effect La Const AIi or voting 6 9 4 It the fixing of subdivision with plan of government is governed by that charter It also included code of ethics for all officials and subdivisions in plans of goveInment of an elected official of compensation a adopted inconsistent with this constitution as xcept or was 200 No Const art 10 mandate a to the employees of the 9 21 The legislature state to and its legislature La enact a political fulfilled that by amending and reenacting the Louisiana Code of Governmental Ethics in its present fOlID in 1979 The See La R S 42 1101 A primary objective of the Code of Governmental Ethics is to prevent public officers and employees from becoming involved in conflicts of interest In So 2d 845 848 re McJunkins 99 0326 p 6 Such a La App conflict of interest is present 9 1st Cir 3 31 00 794 when a conflict exists and his duties as Like Section 2 10 La R S 42 1120 addresses the issue of when an between the private interests of elected official should arguably has a recuse vote on voting himself from conflict of interest when the official s elected official Emphasis supplied La R S 42 1101 B such an the This would be Louisiana Revised Statutes 42 1111 A servant s services from public n o servant shall entitled for the nonpublic receive addressing payment of 1 anything of economic value In line with that Emphasis supplied thing of economic value is generally defined La R S having economic value as 42 11 02 22 but a servant except which he may be as provided in 2004 A Emphasis supplied or any other specifically an a thing excludes elected official RS further 42 1120 provides shall that pmiicipate n o in a to know involving the goveInmental substantial economic interest is defined 42 1102 21 employment or one s as a ny holding gain received as a result of Dictionary 563 8th ed Council member serving as Metropolitan advantage profit of office additional Black or s Law salary received by the President Pro Tempore is clearly an additional emolument from the prohibitions ofLa R S 42 1111 against payments payments for nonpublic services Any general principle personal substantial economic interest of a reasonably expected An emolument is defined one s or 9 transaction in which he has 9 duly c Louisiana Revised Statutes 42 1112 A in La R S other than to which he is money salary and other emoluments of the office held by La R S 42 1102 22 a generally provides that sources performance of the duties and responsibilities of his office position entity violation of R S a compensation and benefits from the governmental entity public only La R S 42 1120 A 42 1112 public which he self recusation requires statute matter matter in on a 10 of office from and thus exempt nonpublic sources and Substantial economic 21 interest means economic an interest which is of greater benefit to the public servant or other person than to a general class or group of persons except that the The interest a public position office rank salary per diem his public solely from employment or has servant or other matter his in arising office official who is elected to a house body or authority has in a position or office of such house body or authority which is required to be filled by a member of such house body or authority by law legislative b rule The interest that an elected home rule charter or The interest that c a person has general public Emphasis supplied The filled position by member of the a or Burgess s interest in that economic interest b and ce1iain1y outside of her vote to elect amount to public meaning office a or an in interest Thus office is or plainly of either La R S be considered the President Pro would not constitute to be Tempore is required public employment s position within the cannot member of the a Metropolitan Council and its additional salary the member arising solely from Ms office of President Pro would therefore compensation as lo any personal Tempore while a a Thus substantial 42 1102 21 in the participation by sense Ms of nor a or arising Burgess in candidate for that violation of La R S 42 1112 matter a office not or a position by extension a violation of La R S 42 1120 Louisiana Revised Statutes contract A fraud Public 1 position funds charged As amended provides contract in defines the cnme of part fraud is committed When any public officer shall use his power or as such officer to secure any expenditure of public to himself 2 10 and 14 140 or When any member of any public body with the custody control or expenditure of any public by Acts 2006 No 408 g 1 effective June 22 2006 11 public funds votes for of such funds his influence or uses to to secure any expenditure himself The fact that an expenditure has been made to any party shall be of this Section Paragraphs presumptive evidence that such person has used his power position or influence to secure such expenditure 1 named in The servant present employee or private in vote a the election of the public the type of member of another municipal governing body contract a local or 14 140 See However other than e or s elected as public public a of which he is presiding officer contemplated by La none and not purposes that these we If the 141 11 At any n 11 Nos amounts to RS 14 140 that for himself vote 76 1895 context rate La 3 2 99 constitute opinions position is No 93 141 in 1993 the election ofthe President Pro a to not the Tempore no are 11 To our contexts Tempore violation of La R S Attorney n persuasive authority for specific La of Dir of La 739 So 2d 748 753 for President Pro a Bd fill dispute Attorney General opinions v a 79 1089 1977 of the present City of New Orleans binding participation of a candidate Opinion casting have involved the consider them limited to their in the election for that In his board Atty Gen Op State Museum 98 1170 p 6 extent or a official in municipal public employment position might implicate La g Opinion No 93 merely advisOlY such transaction governing body appointive office 1979 II an elected services own governing body contractor of the an opinions of the Louisiana Attorney General have suggested Prior the his to engage It is doubtful whether the vote of member RS does not involve the situation of case participating 2 and in a vote 42 1112 then General observed that at the time of authorization for compensation ordinance after the election existed and He further observed compensation provided by a decision by the C ouncil to forego compensation would effectively remove the La Atty Gen Gp No 93 141 1993 Based objection predicated on Section 2 10 was that upon those observations he concluded that the election for President Pro Tempore a Council member could vote for himself in without violation ofSection 2 10 12 logic dictates that it would also criminal and a penal statute not constitute to subject a strict violation of La R S 14 140 that any interpretation and statutory presumption arising from the expenditure would thereby be rebutted official OtheIwise anomalous situation would exist where an conduct would be ethical yet also criminal instead of the s situation where unethical conduct may common actual crime 12 42 1164 does While La R S Code of Governmental Ethics is intended or repealing any criminal statute shall be statutes given a La reference in the context conclude that at to the purpose amount to in the provide that nothing to 14 3 be constlued as an amending that all criminal requires to the fair impOli in connection with the context and of the provision Emphasis supplied Thus presented it would be reasonable to violation of La R S 14 140 would be involved in the vote issue Interpreting Section Govelnment and materia ethics we 2 10 our laws part of s statutes unified purposes in light comprehensive Plan of of Louisiana law in salary of the President private pecunimy interest When Louisiana a were Pro Tempore is Reporter revised and noted the reorganized following While it may be desirable to have civil statutes regulating the extent to which public officials may be interested in public contracts it appears to be going too far to say that such interest is per se criminal A civil statute might well provide that such contracts would be illegal and that the making of such a contract would be grounds for removing the interested official from office The RepOliers are not however to draft such civil statutes 14 140 RepOlier s Comment 1950 13 not and that Section 2 10 does comprehensively Louisiana Revised Statutes the official La RS pari governing dual officeholding and governmental determine that the or as considering its including personal 11 RS in fact more sense of the circumstances no is or not genuine construction according of their words taken in their usual with public a General Comment authorized as a not the Ms requIre to Burgess Council Metropolitan otherwise 13 reversed All s refrain President Pro The trial court the defendant costs from of this s III the election Tempore whether summary appeal voting judgment to the in the amount of on of the final passage or contrary is hereby 595 12 are assessed appellee the City of Baton Rouge Parish of East to Baton Rouge REVERSED 13 Our resolution of the issue reconciles any potential conflict between the provisions of It could otherwise be reasonably argued that Section Section 2 10 and La R S 42 1120 2 10 to the extent that it might contravene the latter statute was preempted in effect upon of our present constitution and the enactment of La R S 42 1120 See La adoption Canst art 6 S 9 B and Boh Bros CanstI Co Inc v City of New Orleans 499 So 2d the 385 La basis for App our 4th Cir 1986 However we need not make such determination decision described herein 14 given the

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