James A Wayne, Sr. VS Capital Area Legal Services Corporation (2011CA1988 Consolidated With 2011CA1989)
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I STATE OF LOUISIANA RT COL F APP AL FIRST CIRCUIT NUMBER 2 CA 198 J11 JAMES A WAYNE SR VERSUS CAPITAL ARE9 LEC SERVICES CORPORATION i4L CONSOLIDATED WITH NLJMBER 2011 CA 1989 JAMES A WAYNE SR VERSUS J CAPITAL AREA LEGAL SERVICES CORPORATION r Rendered Judgment J SEP 2 6 2012 Appealed frotn the 19 3udicial Iaisirict Court In and for the Parish of East Baton Rcruge Louisiana Trial Court Number 599 i 8 c 600 5 w 715 Honorable Timothv E Kelley dudge Amy L McInnis Attorneys for Carrie LeBlanc Jones Plaintiff E James A Wayne Sr Wade Shows Appellant Baton Rouge LA Martin E Golden Attomey for Baton Defendant Appellee Capital Area Legal Services Rouge LA Corporation BEFORE PARRO PETTIGREW AND WELCH JJ WELCH J Plaintiff James A Wayne Sr appeals a summary judgment entered in favor of defendant Capital Area Lega1 Services Corporatian CALSC dismissing this lawsuit We reverse and remand BACKGROUND CALSC domiciled in East Baton Rouge Parish is a non corporation profit which provides legal services or legal assistance in non proceedings or criminal matters to persons financially unable to afford legal assistance or employ attorneys On March 16 2007 Mr Wayne entered into an extension of a prior employment contract and was hired by CALSC to serve as its Executive Director for a period of five years pursuant to a written employment contract The contract provided that Mr Wayne employment could be terminated for cause at any time and that a s hearing to determine whether cause existed would be held before CALSC Board s of Directors Board On January l l 2p11 the Board held a termination hearing at which Mr Wayne and his attorney were present and addressed the Board The minutes ofthe hearing reflect that Mr Wayne and staff inember Eva Pratt testified The Board then went into executive session and when it came out of that session it voted to terminate Mr Wayne employment with seven votes to terminate six abstentions s and one no vote At that meeting four B members participated by telephone ard On February 25 2011 Mr Wayne filed his first lawsuit seeking declaratory mandamus and injunctive relief against CALSC claiming that the Baard violated the Louisiana Open Meetings Law which rendered his termination null and without effect Meetings Law Specifically he alleged that the Board violated the Open 1 by failing to post an agenda 2 by failing to notify him in wariting at least twenty hours in advance of the meeting that it intended to go four into executive session to discuss his character and professional competence 3 or 2 by voting to terminate his contract while still in executive session and 4 because less than a majority of the Board members present at the meeting voted to terminate his employment Mr Wayne sought a declaration that all actions taken by the Board at the Januax 11 2011 hearing were null and void that his contract was not validly terminated that his ernploym contract was still in effect that he nt remained the Executive Director of CALSC and that he was entitled to all benefits due him under his employment contract He also sought a writ of mandamus oz CALSC to reinstate him to his position injunctive relief prohibiting the Board from en its decision and ordering the Board to award him all benefits orcing due under his employment contract with CALSC and attorney fees s The Board filed a P eremP tot3 exce P tion raisin g the ob of no cause o ection J action asserting that the Board is a non corporation and not a public body profit subject to the Open Meetings Law The Board also filed a reconventional demand alleging that Mr Wayne breached his emplayment contract by engaging in the outside practice o law during the term ofthe contract and seeking the return of all salary and other benefits paid to Mr Wayne by CALSC CALSC further alleged that Mr Wayne engaged in multiple violations of its rules and regulations and those of the Legal Services Corporation LSC It sought reimbursement fram Mr Wayne for all questioned costs it was requir to reimburse to the LSC d Qn March 31 2011 the trial court signed a judgment gxanting CALSC s exception of no cause of action and granted Mr Wayne leave to am his nd petition Mr Wayne amended his petition to allege that CALSC is a public body Mr Wayne filed an exception raising the objection of improper cumulation af actions asserting that the enforcement proceedings pursuant to the Open Meetings Law must be tried by preference and in a summary manner while the reconventional demand asserted a breach af contract claim and claims for damages which must be tried by ordinary proceedings On April 12 2012 the trial court d the exception as moot per agreement af counsel The following nied day the court recalled that order and set the exception for a hearing On May 9 201 l the trial court entered judgment denying that exception but treating it as an exception raising the objection of the unauthorized use of summary proceedings and granted the exception thereby severing Mr Wayne claims pursuant to the Open Meetings Law from CALSC claim for s s damages set forth in the recanventianal demand for the puzpose of conducting separate trials 3 as defined by the Open Meetings Law and is subject to its provisions Specifically Mr Wayne alleged that for more than fifty years CALSC and its pr have decessar been organized to provide and hav in fact provided an important governmental the function administration of legal services to persans unable to afford such services He further asserted that CALSC has been supported almost exclusively by tax funds and exercises considerable policy making in administering its derived legal servic and programs and in distributing the public funds that it receives s Lastly Mr Wayne claimed that CALSC own by acknowledge that it is s laws subject to the Open Me Law tings In the amended petition Mr Wayne added three alleged vialations of the Open Meetings Law in connection with the January 11 2011 meeting 1 the fact that several Board members were not physically present but participated by telephone 2 one Board member attempted to vote by proxy and 3 the Board failed to obtain a quorum to even conduct the meeting Mr Wayne claimed that the attempt to vate b proxy and the failure to obtain a quorum also violated the Board own by s laws On March 31 2011 the Board held another meeting to discuss Mr Wayn s termination whom nteen v S board members inc the chair were present nine of uding participated in the meeting by telephone During the meeting fifteen members of the Board voted to ratify its January 11 2011 vote to terminate Mr s Wayne contract and one member abstained Thereafter fifteen members of the Board voted to terminate Mr Wayne contract and all seventeen members of the s Board voted to terminate Mr Wayne contract effective March 31 2011 in the s event the ratification of the January 11 2011 termination vote was ineffective On April 6 2011 Mr Wayne filed a second lawsuit against CALSC asserting that the March 31 2011 purported termination hearing was also replete with procedural irregularities in violation of the Open Meetings Law in the following respects 1 a quorum of the members was not present as only eight 4 members were physically present and eight members improperly cast their votes by telephane 2 the Board failed to post in the amended agenda that it intended to discuss the pending litigation in executive session 3 the Board did not go into executive session on the basis of any recognized exception to the Open Meetings Law and 4 the Board imprQperly voted during the xecutive session Mr Wayne insisted that the Board ratification of its January 1 l 2011 vote to terminate his s employment contract did not cure any deficiencies in the earlier vote He sought a judgment d all actions taken by the Board at the March 31 2011 meeting claring and any action taken by it th day to ratify the January 11 2011 termination be t declared null and void a writ of mandamus ordering CALSC to reinstate his impz ternainated contract injunctive relief and attarney sfees On May 9 2Q11 the trial court signed a judgment consolidating Mr s Wayne lawsuits Thereafter CALSC filed a motion for summary judgment in which it asserted that it is not a pub body subject to the Open Meetings Law but ic rather it is a private non cozporation organized pursuant to Louisiana law profit It conc it received tax dollars which are used to support some ofits operations ded but asserted that the receipt ar expenditure of tax dollars was legislatively eliminated as a factor in determir what entities fall within the definition of a ing public body for the purpose of the Open Meetings Law Accordingly CALSC argued there are no genuine issues of material act with respect to Mr Wayne s allegation that CALSC is a public body and since that status is an essential element of Mr Wayne cause of action CALSC is entitled to judgment as a s matter of law Alternatively CALSC argued even if it was subject to the Open Meetings Law CALSC termination ofMr Wayne employment contract was s s ratified by a later vote of CALSC Baard at a meeting held in full compliance s with that law which retroactively cured any nullity of the earlier termination vote 5 Lastly CALSC urged that the Open M Law does not provide the relief Mr tings Wayne seeks and that federal law preempts Louisiana Open Meetings Law s CALSC submitted CALSC stated that it a was statement of incorporated undisputed in material facts in Ther 1958 by the Baton Rouge Bar Association as the Legal Aid Society of Baton Rouge and that it has always been a private non corporation It fu stated that there had been no government profit her involvement in the creation of CALSC and that CALSC has never been sponsored by any resolution nor has it been designated as an agency by any political subdivision The majority of CALSC operations are funded by grants awarded s by the LSC a non corporation created pursuant to an act of Congress When profit applying for grants from LSC as a condition of receiving such grants CALSC is required to comply with federal regulations enacted pursuant to the Legal Services Corporation Act governing recipient organizations including qualification of clients for CALSC indigent legal services how funds are used for CALSC s s operations Board composition record keeping hiring and termination of staff attorneys and oth related matters as to which CALSC has no discretion r scompliance with federal regulations in its use of grant funds is subject to CALSC audit by the federal Inspector General that can result in the requirement that CALSC pay regulations back funds for expenditures not in compliance with federal CALSC also receives a portion of its operating funds from the Louisiana Bar Foundation sIOLTA and Children in Need of Care programs and from private sources of funding but must still comply with LSC regulations regarding its use of those funds CALSC receives a small portion of its operating funds from the State of Louisiana and various parish and municipal political subdivisions within its parish twelve service area CALSC further claimed that it is undisputed that it is not a town city or parish governing authority boaxd or commission or an authority of any parish municipality special district the state fi or any political subdivisian thereof and that it does not possess policy making advisory or administrative functions of any o listed entities those The evidence submitted by CALSC in support of its motion for summary judgment includes the affidavits of Barbara Crockett Eva Pratt and Eric Miller Ms Crockett who is employed as a Board secretary by the CALSC made the following attestations She attended the March 31 2011 meeting of the Board and called roll of the members at the beginning of the meeting Including the Board chairman seventeen members were present including eight who participated by telephone Ms Crockett could hear those Board members when they commented on matters discussed by the other Boaxd members The Board has conducted meetings in this same fashion for many years Ms Crockett furnished Mr Wayne and his attorney with a copy of the notice and agenda for the March 31 2011 meeting ten days prior thereto and sent an amended agenda to Mr Wayne on March 28 Other than when the Board went into executive session the entire meeting was tape and after list to the recording Ms Crockett recorded ning prepared the minutes Each of the votes noted in the minutes were conducted by a ro11 call vote in which Ms Crockett called out the name of each Board member participating in the meeting and recorded whether that member voted yes or no Each Board member participating by telephone responded when that member s name was called and Ms Crockett could hear each vote cast Ms Crockett attested that the minutes accurately reflected the votes she recorded at the meeting including the unanimous vote with one abstention to ratify the termination of Mr s Wayne employment contract On June 6 2011 Ms Pratt CALSC Vice President of Administration and s Chief Financial Officer attested to the following CALSC receives the majority of its funding from the LSC CALSC is required to apply for grants from LSC and as part of that application process it must sign an agreement to comply with all 7 applicable LSC regulations During the prior fiscal year CALSC total funding s was 2 million dollars of which 1 million was received from the LSC grant 6 6 s CALSC next largest source of funding is the Louisiana Bar Foundation IOLTA s and Children in Ne of Care programs wh provided 444 Additional d ch 00 423 sources of funding came from the State Elderly Prot Servi Program in s ctive es the amount of 333 pursuant to a contract to provid legal services to 00 000 qualified elderly persons 75 from the Attorney General office and the 00 000 s balance from various parish and municipal government bodies in the CALSC s parish twelve service area CALSC is required to comply with LSC regulations s with respect to all of its services including those performed with funds derived From other agencies Ms Pratt was not aware of the CALSC having been designated as an agency by any governmental body nor has the corporation been sponsored by any governmental resolution In his affidavit Mr Miller a member of CALSC Board since 2008 made s the fallowing attestations The Board is composed of attorneys and client representatives all of whom volunteer to serve on the Board and are not compensated for their services For the past six months the Board has met at the s corporation headquarters in Baton Rouge every two weeks and prior to that about once every three months depending on the circumstances CALSC was incorporated in 1958 and has always been a private non corporation profit Mr Miller stated that the Board relied on Mr Wayne to advise it regarding procedures for Board meetings and LSC regulataons and that prior to his minatxon tez Mr Wayne led meetings and approved of the participation in Board i I meetings by members telephoning xo a pre conference call number that arranged was connected to a speakerbox or speakerphon in the meeting room Mr Miller attested that the first time he became aware of any issue with this practice was 8 when Mr Wayne filed this lawsuit alleging that the Board violated the Open Meetings Law Mr Miller stated that at the March 31 2q11 meeting the Board went into executive session to discuss settlement negotiations No vote was taken during the executive session and no action was taken by the Board during the executive session Mr Wayne attorney was present at the March 31 meeting although Mr s Wayne was not Mr Wayne attorney was allowed to address the Board any time s he wished to do so and did address the Board at least two times Prior ta taking the vote to ratify the previous decision to terminate Mr Wayne employment the s s Board chairman asked if anyone had anything else ta say The anly persons present at the meeting other than Board members staff of CALSC and its counsel were Mr Wayne attorney his associate and a newspaper reporter none of whom s spoke up The Board voted to ratify Mr Wayne stermination Mr Miller had been 2011 placed meeting was on Mr also present at the January 11 2011 meeting administrative leave in November 2010 Mr Wayne At the January 11 d ss ly Wayne and his attorney addr the Board extensiv The meeting lasted over three hours nearly all of which was spent on the termination issue Both Mr Wayne and his attorn made their case to the Board that th ey re was no cause to terminate the emplo contract The Board voted to terminate ment Mr Wayne for cause and end his employment contract In further support of its motion for summary judgment CALSC attached the notice and agenda for the March 31 2011 termination hearxng and the minutes of the meeting held on that date At the meeting a roll call vote revealed that sixteen members discuss made participated litigation in the meeting The Board went into executive session to It was stated that no action was taken and no motions were during the executive session Fifteen members of the Board then voted to ratify the termination effective January 11 201 l with one abstention Thereafter 9 the Board then moved to terminate Mr Wayne contract with fifteen members s voting to terminate the Mr Wayne attorn then raised an objection sy contract regarding the effective date of the termination All sixteen members of the Board unanimously voted to terminate Mr Wayne employment contract effective s March 31 2011 in the event that the ratifcation of the January 11 2011 termination was found to be ineffective In opposition to the motion for summary judgment Mr Wayne argued that CALSC is a public body within the meaning of the Open Meetings Law because it was organized to perform a governmental function it is supported by tax derived funds and it exercises considerable policy making in administering its legal services programs and distributing the funds it receives Mr Wayne also claimed that CALSC by expressly acknowledge that it is subject to the Open s laws Meetings Law Mr Wayne also urged that CALSC failed to comply with the Open Meetings Law at ratification of the March 31 2011 its prior hearing thus rendering its attempted termination without effect Finally Mr Wayne insisted that the Open Meetings Law does provide him with the relief he seeks in this litigation and that such is not preempted by ederal law In support of his oppasition to the znotion Mr Wayne submitted his affidavit and the affidavit of Amy McInnis his employment contract with CALSC a copy of CALSC Board of Dir by and the minutes of the Board s ctors laws s 21 January 11 2011 termination hearing Mr Wayne cited Section 1601 of the CALSC Board of s Director laws by which he claims constitutes an dgement acknowl by CALSC that it is subject to the 4pen Meetings Law Section 21 1601 provides as follows A meeting of the Board shall be open to the public unless a majarity of all Directars present determines by a record vote to close a meeting or any portion of a meeting to the public pursuant to the Corporation s regulations implementing S U 522b and LSA G S S R 10 6 42 et seq That part of the meeting closed to the public shall be known as an executive session The Chair of the meeting shall announce the general subject of the executive session prior thereto The by state that CALSC is a corporation organized under the laws of laws the state of Louisiana The powers and duties of CALSC are set forth in its articles of incorporation classifications The Board is comprised of 30 directors from three 1 attorneys who are selected by various bar associations 2 client members who can prove eligibility under CALSC eligibility guidelines and who are selected by the Baton Rouge Client Council the Lafourche Parish Community Action Agency and by the 18 20 23 32 and 40 Judicial District Councils and 3 two at members one of whom does not have to be large client eligible and who is selected by the Baton Rouge Chapter of the Louisiana Survival Coalition or other agency designated by the Board and one who is selected by the Baton Rouge Chapter of the Louis A Martinet Society The by specifically authorize the Director to participate in meetings by laws telephonic conference Section 1601 states that the Director must be able ta 20 communicate with the other Board members present and they must be able to hear the Director statements The provision further states that notice by a Director to s participate by telephone shall be given to the Chair no less than 24 hours prior to a meeting In his affidavit Mr Wayne stated that he was unaware of any proof that such notice had been provid for the Board members participating by telephone at d either the January 11 2011 or the March 31 2411 meeting He also attested that he reviewed the minutes of the March 31 2011 meeting and that some of the members were newly to the Board and had not participated in the appointed January 11 2011 meeting where the Board voted to terminate him The minutes of the Board termination hearing held on January 11 2011 s reflect that a total of fifteen members of the Board were present eleven of whom 11 were physically pres and four who participated by telephone The minutes nt reflect that the Board came out of executive session and that the Board vot to d terminate Mr Wayne contract with seven members voting to terminat one s voting not to terminate and six abstentions Ms McInnis attested to the Mr wing ll F She is an attorney who represented in the termination matter Wayne She was present at the March 31 2011 meeting at which only seventeen members participated including the Board chair Of the seventeen members nine were not physically present but participated by telephone A simple majority of the total twenty Board members were not nine present and a proper quorum was not established One Board member who participated by telephone Henry Lafant attempted to cast his vote by proxy at one point during the meeting The Board vote to ratify the prior vote on January 11 s 2011 and its vote to terminate the contract effective that date in th event the ratification of its earlier decision was invalidated included the votes of the nine physically absent Board members who participated by telephone The Board did not allow a public comment period prior to voting on its decision to ratify the January 11 2011 d to terminate Mr V1 cision scontract ayne At the summary judgment hearing the trial court made three rulings First the court found that the March 31 2011 meeting was not procedurally defective and held that the March 31 2011 ratification of the January 11 2011 vote to terminate Mr Wayne cantract was valid for the purpos of the Open Meetings s Law The court found that participation by telephone was valid as CALSC sown laws by recognized t lephone participation by its directors and the participation was open and public on a speakerphon The court saw no requirement that the members had to be physically present so long as there was the ability for those participating to hear and that was provided The court found no action had been taken in executive session there was the ability for public comment during the 12 course of the meeting and therefore there was no violation of the Open Meetings Law The court further held that notwithstanding the statement in the CALSC s laws by indicating that the Open Meetings Law applied to it CALSC is not subject to the Open Meetings Law The court concluded that CALSC is not a public body within the meaning of that statute It found that the legislature clearly intended to limit the application of the Open Meetings Law to governmental entities when it changed the definition in that the Public Recards Law 1aw but retained a broader definition of the term in Finally the court held that even if CALSC is a public body within the meaning of the Open Meetings Law and that law does apply the Open Meetings Law is preempted by federal law and therefore any deficienci s argued by Mr Wayne had been cured by the federal law preemption The trial court signed a judgment an July 13 2011 granting CALSC motion for summary s judgment dismissing Mr Wayne sdemand for relief with prejudice and decreeing that this x had no effect on the pending reconventional demand The trial court designated the judgment as a final judgment in accordance with La C P art 19l S finding no just reason for the delay When a trial court certifies a judgment as a final one for the purpose of an immediate appeal pursuant to La C art 1915 this court z the P B eviews certification to determine whethex appellate jurisdiction exists In this case there was no need for the trial court to certify the summary judgment which disposed of all of the issues rais in Mr Wayne lawsuit and dismissed that lawsuit with d s prejudice as a al fir judgment pursuant to La P C art 1915 B Louisiana Code of Civil Procedure article 191 S provades for the immediate appeal of a A judgment granting a motion for summary judgment We also note that although the CALSC reconventional demand is still pending in the trial court the trial s caurt had previously granted an exception of unauthorized use af summary proceedings and severed CALSC reconventional demand from 1VIr Wayne s s 13 I lawsuit for the purpose of conducting separate trials Because this court clearly has appellate jurisdiction over this appeal under La P C art A 1915 it is unnecessary to review the propriety of the trial court scertification SUMMARY JUDGMENT In this appeal Mr Wayne contends that the trial court erred in granting s CALSC motion for summazy judgment and dismissing his demand for relief pursuant to the Open Meetings Law The threshold issu presented by CALSC s motion for summary judgment is whether under the undisputed facts of this case CALSC is not a public body for the purpose of the Open Meetings Law This court z summary judgments de novo using the same criteria that govern the trial court consideration of whether summary judgment is appropriate s Bickham v Louisiana Emergency Medical Consultants Inc 2010 La 0535 App l Cir 11 52 So 162 164 A motion for summary judgment should 10 1 3d be granted only if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits i any show that there is no f genuine issue as to material fact and that the mover is entitled to judgment as a matter of law La C art 966 P B The burden of proof on a motion for summary judgment is on the movant However if the movant will not beax the burden of proof at trial on the matter befare the court on the motion for summary judgment the movant sburden on the motion does not require him to negate all essential elements of the adverse party s claim but to point out to the court that there is an absence of factual support for one or more elements essential to the adverse s party claim If the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact La C art 9 Any doubt as to a dispute regarding a genuine issue of P 2 C d material fact must be resolved against the motion and in favor of a trial on the 14 merits Lewis v Four Corners Volunteer Fire Department 2008 La 0354 App 1 Cir 9994 So 69b 698 08 26 2d In enacting the ppen Meetings Law the legislature declared that it is essential to the maintenance of a democratic society that public business be performed in an open and public manner so that citizens can be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making o public policy The legislature further dEClared that in order to accomplish this end the provisions of the Open Meetings Law must be construed liberally La R 42 S 12 Louisiana Revised Statute 42 mandates that every meeting of a public 14 body shall be open to the public unless closed pursuant to other provisions of the act Louisiana Revised Statute 42 defines the term public body as fallows 13 Public body means village town and city governing authorities parish governing authorities school boards and boards of levee and port commissioners boards of publicly operated utilities planning zoning and airport commissions and any other state parish municipal or special district boards commissions or authorities and those of any political subdivision thereof wh such re or body possesses policy making advisory administrative functions including any committee or subcommittee of any of these bodies enumerated in this raph parag t is undisputed that the CALSC is a private non corporation established profit pursuant to Louisiana law It is not a village town city or parish governing authority it is not a school board levee boaxd or port commission it is not a publicly operated utility or a planning zoning ar airport commission it is not a state parish municipal or special district board or commission and it is not a committee or subcommitt of any of the bodies enumerated in the definition of e public body 2 The provisians of the Open Meetings Law consisting of former La R 42 through 42 S4 1 13 were redesignated as La R 42 to 42 by 2010 La Acts No 861 23 S 12 28 15 Mr Wayne claims that the definition of public body is open ended and not limited to the types of bodies actually listed in the definition but extends to any political subdivision such body possesses policy making advisory or where administrativ functions He also points out that the legislature has mandated that the Open Meetings Law be liberally construed La R 42 We agr that S 12 A e the term public body is broadly defined in La R 42 and extends to entities S 13 not specifically listed in the statute as the provision uses the term authorities Pursuant to the language of La R 42 CALSC may qualify as a public body S 13 for the purpose of the Open Meetings Law if it is an authority that exercises policy making advisory or administrative fi inctions In light of th legislative mandate that the Open Meetings Law be given a broad construction we turn to an xamination of the statute and jurisprudence addressing what types of entities qualify as public bodies for the purpose af the Open Meetings Law 626 627 La App l In Segh v Community Advancement Inc 357 So rs 2d s Cir 1978 this court held that Community Advancement Inc a private non corporation constituted a body or authority profit public subject to the Open Meetings Law At the time S was decided the Open ghers Meetings Law did not provide a definition of the term public body but did define the term meeting for the purpose of the Open 1Vleetings Law to mean the official convening of town and city councils police juries and other governing bodies school boards and boards publicly of levee and port commissioners operated utilities and all state boards of parish or municipal boards or authorities with policymaking ar administrative functions which receive or expend tax funds the legislature specifically exempted ta discuss or act upon a matter over which the public body has supervision control jurisdiction or advisory power Prior to Community Advancement Inc formation the city and parish councils s passed resolutions sponsoring the corporation and several years later both councils passed resolutions reaffirming the sponsorship and redesignating the corporation as 16 an agency to administer anti programs Th corporation derived nearly all proverty of its support from local state and federal funds Althaugh some guidelines were set by the agencies providing the funds considerable policy making was required of the corporation in both the administration and distribution of funds Community Advancement Inc argued that it was a non private corporation and could not profit be a public body for the purpose of the Open Meetings Law This court found that interpretation too restrictive Instead we concluded that Community Advancement Inc was abody or authority within the meaning of the Open M public etings Law In so doing this court stressed that 1 the corporation was organized to perform and has performed a governmental function administration of an anti the poverty program 2 it was supported almost exclusively by tax funds and derived 3 it set policy in the distribution of those funds This court also observed that the city or parish council if either elected to do so could have administered the anti poverty program or del the duties to another public body and the council or gated other public body would have been subject to th Open Meetings Law We reasoned that the fact that Community Advancement Inc was organized under the legal mechanics of a private non corporation law of Louisiana shauld not profit immunize it from the Open Meetings Law Seghers 357 So at 627 2d 628 Mr Wayne contends that Seghers demonstrates that the mere fact that an entity is a private nan corporation is not dispositive of whether the Open profit Meetings Law applies He submits that all of the criteria utilized by this court in Seghers to find Community Advancement Inc constituted a public body also apply to CALSC He cont that it is undisputed that CALSC 1 was nds organized to perform and does perform an important government function providing legal services to indigent citizens in its service area 2 is supported almost exclusively by tax funds and 3 exez considerable policy derived cises 17 making in administering its legal services ar distributing the public funds it d receives CALSC points out that after Seghers was decided the legislature rewrote and restructured the Open Meetings Law to provide for separate definitions of the terms meeting and public body 1979 La Acts No 681 1 The term public body retained the de of the various governme cription talauthorities and political authorities and authorities possessing policy znaking advisory or administrative functions found in the previous definition of m but eliminated the eting reference to th receipt or expenditure of t funds ax CALSC contends that the change in the law evidences the legislature sexpress repudiation of the receipt af public money as a factor in determining whether an entity is a public body for the purpose ofthe Open Meetings Law We disagree Instead we believe that by r receipt of public moving the funds from the definition of public body the legislature intended to preclude the receipt of public funds from being the sole factor making an entity a public body for the purpose of the Open Meetings Law The manner in which an entity is financed remains a relevant factor in determining whether an entity is a public body however that factor alone is no longer sufficient to make an entity a public body subject to the Open Meetin s Law This interpretation is supported by the Louisiana Supreme Court decision in Spain v Louisiana High School Athletic s 2d Association 398 So 13 La 19 which considered the manner in which 1 the entity was financed as a factor in determining that it was a public body for th purpose of the Qpen Meetings Law In Spain the court was asked to determine whether the Louisiana High School Athletic Association LHSAA requirements of the Open Meetings Law was a public body subject to the Although LHSAA had been recognized as a private unincorporated voluntary association in a number of cases the court 18 found LHSAA to be a public body for the purposes of Open Meetings Law In so doing the court observed The LHSAA performs a Function which is by law entrusted to the various bodies established for the regulation of public education It is funded by public money earned by state schools at athletic events It has established a comprehensive set of rules and regulations governing how public schools and th students must ir conduct themselves with regard to athletic and academic endeavors all with the acquiescence and implied blessing of the legislature Board of Elementaary and Secondary Education Superintendent of Education and local school boards See Seghers v Community Advancement Inc 357 So 626 La App 1 Cir 1978 2d Equally is the degree of connexity between the important regulatory functians of the LHSAA and the regulatory functions of a particular public body found in R S A 2 4 42 Here the connexity is close since LHSAA performs a major policy advisory and making administrative function in an area that is within the primary control of public bodies listed in the Open tings Me Law Viewed in this light the LHSAA and its official committees and subcommittees in their present form do constitute collective committees or subcommittees of the parish school boards or State Board of Elementary and Secondary Education for the purposes of the Open Meetings Law Spain 398 So at 1390 footnote omitted 2d The legislative history surrounding the definition of the term public body and the jurisprudence construing that term establish that the fact an entity is set up as a private non corporation is not dispositive of the question of whether it is profit a public body for the purpose ofthe Open Meetings Law Moreover the mere fact that an entity receives public money does not make it a public body for the purpose of the Open Meetings Law Rather there are a number of factors that must be considered in determining whether an entity is subject to the Open Meetings Law Four factors courts have looked at in making this determination are 1 whether the entity performs a goveatnment function or performs a function which by law is entrusted to other public bodies 2 whether the entity is funded by public money 19 3 whether the entity exercises policy advisory and administrative making functions and 4 whether there is a connexity between the functions of the entity and the functions of a particular ublic body identified in La R 42 S 13 2 A The evidence on the motion for summary judgment does not establish that the first two factors cannat be met The primary purpose of establishing legal aid societies such as CALSC is so that low income persons will have equal access to I our system of justice CALSC is carrying on that important governmental objective by providing quality legal services to indigent persons who could nat otherwise afford those services Additionally s CALSC summary judgment evidence established that it receives money from the State Elderly Protective s Services Program pursuant to a contract to provide legal services to qualifi d lderly persons and also receives money from parish and municipal governmental bodies within its twelve area parish Nor does the evidence establish that ALSC lacks the requisite connexity to a public body enumerated in the statute or that it does not exercise policy making administrative or advisory functions The evidence on the motion for summary judgment is insufficient ta resolve the genuine issues of material fact regarding the connexity element Moreover we note that in Community Press LLC v CH2M Hill Ine 2011 La App 1 Cir 2writ denied 2012 0682 unpublished 12 10 OS72 La 4 85 So 1274 this court questioned whether such fact 12 20 2d based issues such as the connexity r the Spain analysis could ever be quixement in resalved on a motion for summary judgment Finally CALSC own by mandate that the Board meetings shall be s laws s open to the public unless a majority of the directors determines by a record vote to close a meeting or any portion of a meeting pursuant to La R 42 which sets S6 forth those circumstances under which a public body may hold executive sessions and which prohibits a public body from taking a final actian during executive 20 sessian If CALSC deemed itself to be a public body and acted over a caurse of time as a public body such conduct while not determinative of the issue is clearly relevant to a d whether under a11 of the acts of this case CALSC is termination of a public body for the purpose of the Open Meetings Law Given the strong public poricy behir dthe pen Meeting Law and the broad construction mandated of its provisions in light of the evidence on the motion for summary judgment we conclude that the trial court erred in finding that as a matter of law CALSC is not a public body for the purpose af th Open Meetings Law Therefore we reverse the summary judgment as to that issue The trial court granted summary judgment on two additional bases It found that the Open Meetings Law had not been violated and that federal law preempted the Open Meetings Law Because CALSC status as a public body is a threshold s issue to the determination of the remaining issues and because we have found that the trial court erred in determining that CALSC was not a public body on the motion for summary judgment we do not believe the remaining issues present a justiciable controversy at this time If it is determined by the trial court follawing a hearing and presentation of the evidence that CALSC is not a public body the remaining issues presented by the motion for summary judgment will be moot and any pronouncement this court may have made on those issues in this appeal would merely be an advisory apinion advisory opinions as to abstract It is well settled that courts will not render or moot controversies Coffee Bay Investors C O L v W Co 2003 La App 1 Cir 4 878 So 6d5 C G 0406 04 2 2d 1Q84 673 writ denied 2004 La 6 876 Sa 838 2d 04 25 Therefore we pretermit discussion of the alternative bases upon which summary judgment was granted by the trial court 21 CONCLUSION For th foregoing reasons the judgment appealed from is reversed The case is remanded to the trial court to conduct an evidentiazy hearing on the issue of whether CALSC is a public body for the purpos of the Open Meetings Law All costs of this appeal are assessed against appellee Capital Area Legal Services Corporation REVERSED AND REMANDED 22
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