Pelican Educational Foundation, Inc. VS Louisiana State Board of Elementary and Secondary Education and Penny Dastugue

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I STATE OF LOUISIANA COURT QF APPEAL FIRST CIRCUIT 2011 CA 2067 PELICAN E 7UCATIONAL FOL1TdDATION INC VERSUS THE LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATIQN AND PENNY DASTUGUE DATE QF JUDGMENT JUN 2 01 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 603 SEG 23 PARISH OF EAST BATON ROUGE PARISH 880 STATE OF LOUTSIANA HONORABLE WILLIAM A MORVANT JUDGE Andrew R Lee Orleans Louisiana James C Percy Christopher D Martin Baton Rouge Louisiana New lique Ang Duhon Freel Bator Rouge Louisiana Counsel for Plaintitf Appellant Pelican Educational Foundation Inc Counsel for Defendants Appellees Louisiana State Board of Elementary and Secondary Education and Penny Dastugue Renita Thukral Counsel for Amicus Curiae C Washington D National Alliance for Public Charter Schools Sarah E Vandergriff w N Orleans Louisiana Counsel for Amicus Curiae Louisiana Association Charter Schools BEFORE WHIPPLE KUHN AND GUIDRY JJ Disposition AFFIRMED MOTiON TO REMANll D llENtE of Public KUHN J appellant Plaintiff Pelican Educational Faundation Inc Pelican appeals the trial court judgment sustaining a pexception raising the objectian s remptory af na cause of action asserted by defendants the Louisiana State Board appellees of Elementary and Secondary Education BESE and Penny Dastugue in her capacity as president of BESE and dismissin its claims for a writ of mandamus injunctive relief and a declaratory judgment We affrm FACTUAL AND PROCEDURAL BACKGRQUND According corporation that to was the allegations af autharized by a the petition Pelican is a non profit charter entered into with BESE under s Louisiana Charter School Demonstrating Programs Law the Charter School Law to operate Abramson Science and Technalogy Charter School Abramson as a Type 5 charter school since June 2007 On July 15 2011 Pelican received a letter issued by BESE president Dastugue advising that in accordance with the plenary pawers granted to BESE under the Louisiana Constitution Abramson is hereby placed under suspension pending investigation On July 27 2011 Pelican received notice from BESE that matters relative to Abramson A charter is the a and authorization to operate a charter school which includes the reernent exhibits which incorpor the charter school application See l 03 F te appearing in Title 28 ducation of the Louisiana Administrative Code LAC Bullelin 126 charter contracts and z See 7enerall La R 17 see also 103 Title 28 I Bulletin 126 defining a S 3971 1 4 AC charter school as an independent public school that pravides a program of elementary and or secondary education established pursuant to and in accordance with thc provisions of the Louisiana Charter School I to provide a learning environment that will improve pupil aw achievement And La R 17 defines a 5 charter school as among S 3973 aa v b 2 Type otlier things a preexisting public school transferred to the Recovery School District pursuant to La R 17 or 10 and operated as the result of and pursuant to a charter between a S 10 5 7 nonprofit corporation and BESE See also 107 of 1 28 LAC I3ulletin l 2f E itle I 2 will be considered including investigative findings to date that may result in termination of th Charter School Contract between BESE and Pelican and may result in revocation of the Abramson Charter at the next scheduled board meeting on August 3 20 1 On August 1 2011 P tiled a petition seeking a temporary restraining lican order TRO to enjoin the August 3 2011 BESE meeting Pelican also requested issuance of preliminary and permanent injunctions to enjoin BESE from suspending it as a result of any actian taken at the August 3 2Q11 meeting a writ of mandamus and a declaratory judgment The trial court denied the TRO on that same day stating that Pelican had failed to show the requisite irreparable injury On August 4 2011 Pelican filed a supplemental petition re the ave allegations oF its original petition Pelican also alleged that a meeting was held by BESE on August 3 201 l at which time BESE voted to terminate and revoke s Pelican charter to operate Abramson in violation of both the provisions of the Charter Contract that BESE had entered into with Pelican as well as statutory law including the Charter School Law and the Louisiana Open Meetings Law OML Pelican attached to its petition a hand notice of termination from delivered BESE to Pelican dated August 3 201 that stated the charter was terminated 1 nmediately and i revoked based on a determination that the health safety and welfare of students is threaten Attached to the notice as Exhibit A was a d rdated July 28 2011 from 011ie S Tyler the acting state superintendent of tt l the Louisiana Department of Education LDE to Dastugue which set forth s LDE tindings as a result of an investigation that it commenced on July 14 2011 3 atter learning ot allegations of incidents possibly sexua in nature involving students attending Abramson The letter made preliminary findings and included supporting documentation The findings included a lack of supervision failure to investigate instances of alleged sexual behavior occurring on the school campus failure to report to police and the Department of Children and Family or Services suspected child abuse involving at least three ancidents of age inappropriate sexual behaviar in a student failure to evaluate two students for disability and failure to dacument lack of adequate documentation and lack of follow up pertainin to alleged specified incidents involving the safety health and weltare of students The July 28 2011 letter and supporting documents comprised approximately 56 pages a intormation The August 3 20l 1 notice of termination expressly adopted the July 2 2011 letter as BESE findings and basis of s termination On August 10 2011 BESE filed a peremptory exception raising the objection of no cause ofi action urging that a review of the allegations of the tition p as well as documents attached to the original and supplemental petition demonstrated that Pelican was not entitled to relie On August 1 l 2011 after a hearing the trial cour sustained the exception and denied Pelican the opportunity to amend its s petition A judgment dismissing all Pelican claims was signed on August 3Q 2q1 l Thrs appeal followed NO CAUSE OF ACTION The function of the exceptian of no cause of action is to test the legal iciency suf of the petition by determining whether the law affards a remedy on the facts of the pleading Everythz on Wheels Suharu Inc v Subaru South Inc g 4 616 So 1234 1235 La 1993j No evidence may be introduced to support or 2d controvert the objection La C art 931 A court must review the petition and P accept all well pleaded facts as true and th only issue on the trial of the exception is whether on the ace of the petition plaintitf is le entitled to the r ally lief sought Everything on Wheels Subaru Inc 616 So at 1235 Cage v 2d Adnptinn Options of Louisiana Inc 94 La App 1 st Cir 6 b57 2173 95 23 2d Sa 670 671 Furthermore the facts shown in any annexed documents must alsa be accepted as true B C ECec Inc v East Buton Rouge Parish School Bd 2002 La App 1st Cir 5 849 So 616 619 1578 03 9 2d in reviewing a cou ruli sustaining an exception of no cause of rial rt n s action the reviewing court conducts a de novo review because the exception rais s a questian of law and the lower court decision is based only on the sufficiency of s the petition The burden of demonstrating that no cause of action has been stated is upon the exceptor Any doubts are resolved in favor of the le sufficiency of al the petition Id REQUESTED RELIEF Pelican urges that between the allegatians of its petition and the docum nts it attached to its petition the record establishes sufficient facts to support its claims far a writ of mandamus injunctive relief and a declaratory judgment We examine each of these forms of relief vis Pelican vis a sallegations and annexed documents Mandamus is a writ compelling a public officer to perfarm a ministerial duty required by 1aw La P C arts 61 3 and b3 3 Mandarnus is an extraordinary remedy which must be used sparingly by the court and anly to 5 compel action that is clearly provided by law Poole v The Louisiana Boar of l Electrvlysis Examiners 2006 La App lst Cir 5 964 So 960 0810 07 16 2d 963 Although the granting of a writ of mandamus as a general rule is considered improper when the act sought to be cammanded contains any element of discretion it has been allowed in certain cases to correct an arbitrary and capricious abuse of discretion by public boards or officials such as the arbitrary refusal by an administrative body to grant a license Id The writ of injunction a harsh drastic and extraordinary remedy should anly issue in those instances where the moving party is threatened with irreparable loss or injury and is without an adequate remedy at law Irreparable injury has been interpreted to mean loss that cannot be adequately compensated in money damages or measured by a pecuniary standard Generally a party seeking the issuance of a preliminary injunction must shaw that he will suffer irreparable injury if the injunction do not issue and must show entitlement to the relief s sought But a showing of irreparable injury is not necessary when the act sought to be enjoined is unlawful or a deprivation of a constitutional right is involved Dale v Louisiana Secretary ofState 2047 La App 1 st Cir 10 11 07 971 2020 2d So 1136 1141 Generally a party seeking the issuance of a preliminary injunction must show in addition to irreparable injury if the injunction does not issue entitlement to the relief sou this must be done by a prima facie showing ht that the party will prevail an the merits of the case Roba lv Courtney 2009 nc 0509 La App 1st Cir 10 10 847 3d So 509 Sl Although the plaintiti isonly d requir to rnake a prinZa facie shawing at the hearing regarding a preliminary injunction the issuance of a permanent injunction takes place only after a trial on 6 the merits in which the burden of proof must be carried by a preponderance of the evidence rather han a prima fczcze showing Farmer Seafood Cn Inc v State s ex rel Dep tof Pub Safety 20 l 0 La App 1 st C ir 2 14 1 l 56 So 1 3d 1263 1266 A persan interested under a written contract or ather writing constituting a contract or whose rights status or other legal relations are affected by a statute may seek the determination of any questian of construction or validity arising under the instrument statute or contract and obtain a declaration of rights status or ather legal r La C art 1 A declaratory judgment may be lations See P 72 ndered rwhether or not further relief is or could be claimed La C art 1871 P A declaratory judgment has the force and effect of a tinal jud or d and ment cree may serve as the basis for a p seeking further relief See La C arts tztian P 1871 1878 DISCUSSION Initially we note that La Const Art VIII 3 creates BESE and mandates that BESE shall supervise and control the public elementary and secondary schools and special schools under its j urisdiction as w as have other powers ll duties and responsibilities as provided by this constitution or by law Under La S 3981 R 17 BESE is empowered to enter into any proposed charter which complies with the Louisiana Charter School Law and the rules adopted pursuant to its authority that BESE determines is a valid complete kinancially well structured and educationally sound proposal The ultimate contractual and issues before involve us the proper interpretatian e regulatory language i questions of law subject 7 to de of novo I review See Solet v Brnoks 09 La App lst Cir 12 30 So 96 0568 09 16 3d 99 and Red Stick Studro Dev L v State ex rel Dep of Econ Dev 201 C t 0193 La 156 So 181 187 11 19 3d The Chart Contract issued by BESE to Pelican which was attached to the r petition states in ctian S 5 CHARTER TERM RENEWAL REVOCATION in a subsection entitled Revocation 1 4 5 As provided by law BESE may terminate or revoke this Agreement at any time upon a determination and affirmativ vote by a majority of BESE that the Charter Qperator its board members officers or employees did any of the following i ii Committed a material violation of any of the conditions standards or procedures provided for in the approved charter Failed to meet within the reed a tim lines any of the acad or other educational mic or pursue results specif ed in the approved charter iii Failed to meet iv Violated any provision of law applicable to a charter school its officers or employees generally accepted accountings standards of fiscal management 2 4 5 Thzs Charte Contr may be termznatec immediately and the act ter cJhar evnked if BESE deternzines that the health safety or are welf of students is threatened BESE must provide written notice of terminativn which shall include its fchdr and basis ngs fn The termznation and revocation shall be effective upon receipt of the notice of termination by the cJharter nJperator Emphasis added mznatzon ter Based on the plain language of Section 5 o the Charter Contract if 2 4 F BESE determines that the health safety or welfare of students is threatened BESE may revoke the charter The only procedural protection afforded to Pelican under Section 5 is that BESE must provide written natice of termination 2 4 8 which shall include its findings and basis for termination With the August 3 2011 termination notice from BESE to Pelican which adopted the July 28 201 l letter from LDE to BESE as its tindings and basis of termination BESE complied with Section 5 2 4 Thus applying Section 5 of the Charter Contract to the 2 4 facts deemed established by the petition and tk a the termination and e tachments revocation was effective on August 3 2p l 1 when Pelican received the notice Pelican asserts that before BESE could revoke its charter under the Charter School Law which was incorporated into the charter agreement Pelican was afforded procedural protections Louisiana Administrative Code LAC Title 28 entitled Education in Part CXXXIX appears Bulletin 12 101 which provides in per part inent A The regulations set forth in this bulletin are incorpoxated into all charters app by BESE and shall bind all charter schools roved approved by BESE Pelican points to the provisions of LAC Title 28 Part CXXXIX Bulletin 126 Chapter l7 entitled Revacation Proce sto assert that in concluding the din petition did not state a cause of action for the requested relief the trial court mi sinterpreted Chapter for 1703 17 consists of two sectians Revocation ln the first section entitled Reasons 1701 stat s A An authorizer may revoke a school charter any time prior to s the expiration of a charter operator five term following initial s year appraval or prior ta the expiration of its subsequent renewal if such is granted pursuant to Chapter 1 S Renewal of this bulletin Charter upon a determination that the charter school or its officers or employees did any of the following 1 committed a material violation of any of the conditions standards or procedures provided for in the approved charter 9 I 2 o the failed to meet or pursue within the agre timelines any d and ather educational results sp in the mic acad cified approved charter 3 failed to meet generally accepted accounting standards of fiscal management 4 violated any provision of law or BESE policy applicable to a charter school its afficers or employees B BESE may also revoke acharter if s school 1 the health safety and welfare of students is threatened 2 failed to meet the minimum standards for continued operation pursuant to R 17 after four years of aperation or S 10 5 3 any other reasons for revacation listed as such in a charter school scharter contract And the following section A l 7 provides in part 3 Recommendation to Revoke Charter for BESE Authorized Charter Schools l A recommendation to revoke a charter shall be made to BESE by the LDE at least one BESE meeting prior to the BESE meeting at which the recomm may be considered except as ndation atherwise pravided herein when the health safety and welfare of students is at issue 2 Prior to the BESE meeting at which the LDE will make a recommendation that BESE commence a revocation praceeding the LDE will inform th charter operator that it is requesting such and the reasons therefar and may meet with the charter operator upon quest to r discuss the revocation recommendation 3 Following LDE recommendatian ta revoke a charter s BESE shall determine if it will commence a revocation proceeding 4 BESE may on its own commence a charter revocation proceeding B Revocation Hearing for BESE Charter Schools Authorized 1 The charter operator shall have an opportunity for a hearing prior to the revocatian of its charter 0 C Hearing Of for BESE Charter Schools icer Authorized 1 BESE shall revocation and hearing including but not appoint carry limited to a hearing ofticer I preside over the certain adjudicative functions out to rule on of of proof and receive ers relevant evidence D Revocatian Hearing Notice for BESE Charter Authorized Schools 1 A charter operator shall be provided reasonable notice of the revocation hearing at least 15 calendar days prior to the scheduled revocation hearing F Presentation and Evaluation of Evidence at Revocation Hearing for BESE Charter Schools Authorized 1 At the charter revocation hearing an opportunity shall be orded af all parties to respond and present evidence on all issues of fact involved and argument on all issues of law and policy involved and to conduct such cross as may be required for a full examination and true disclosure of the facts Emphasis added While the health acknowledging under B 1701 BESE can revoke its charter when safety and welfare of students is threatened Pelican maintains B 1703 gives not praceeding requirements set that under the BESE the right forth in procedure the only to 1703 set discretian forego as the the trial forth in to iate ini a charter revocation mandatory procedural due court canstrued process Pelican also urges 1 B 1701 as a charter operator Pelican shall have an opportunity for a hearing prior to the revocation of its charter Additianally Pelican asserts that the provisions of 1701 mandating BESE 1 C to appoint a hearing offrcer preside over the revocation hearing 1 D 1701 mandating reasonable notice at least 15 days before the scheduled revocation hearing and 1701 mandating that all parties be afforded an apportunity to 1 F respond and present evidence also apply 11 Construing the language ofthe Charter Contract alongside the provisions of Chapter 17 of Bulletin 126 we ind nothing requiring that the procedure set forth under Sectian 5 must comply with or is atherwise dependent on the procedure 2 4 I of l 701 Our review convinces us that in this case BESE has at its option two separate procedures for revokin a charter operator charter when the health s safety terms ar and weltare of students are at issue BESE chose to proceed under the of Section 5 of the Charter Contract rather than the 2 4 provisions of 1701 and 1703 We find nathing in the Charter Contract or the Charter School Law that cludes pr BESE from doing so In its final attempt to maintain its claims for reli under the provisions of f the Charter Contract Pelican reli an Exhibit I of the Charter Contract entitled s FRAMEWORK SCHOOLS FOR THE EVALUATION OF LOUISIANA CHARTER In a section of Exhibit I Contract Revocution At Any Time appearing on pa 7 of 7 the following is set forth e BESE has the authority to revoke a school contract at any time s during the charter term if it is determined that the charter schaol one if its officers ar emplayees has Cammitted a material violation of any of th conditions standards or procedures of the charter Failed to meet within agreed timelines any of the academic or other educational results specified in charter Failed to meet generally accepted accounting standard of fiscal manag ment Violated of sic any law applicable to a charter school its officers or employees In all circumstances BESEJ shall follow the r the equirements of Louisiana Charter School Law and zts charter school contract including all due process requzr regarding the pr ements ocesses 2 required for revncation extension non renewal and non extension renewal Emphasis added d Bas an the provisians of the final paragraph of Exhibit I Pelican claiins BESE was required to follow all due process requirements regarding the processes for revocation before it could terminate the Charter Contract Exhibit I merely reiterates th same bases far revocation set forth in Section 1 4 5 af he Charter Contract as well as those stated in 1701A of Bulletin 12b Thus the provision i all circumstances clearly references the enumerated n circumstances immediately preceding the mandate that BESE afford due process requirements in revoking a charter As such it daes not support Pelican s assertion that Exhibit I creates an independent basis for a due hearing process prior to revocation and termination of a charter operator charter whez as here s BESE has determined that the health safety and welfare ofthe students is at issue Accordingly we find nothing in the Charter Contract or the Charter School Law that supports a claim for either a writ af mandamus injunctive reliet ar a declaratary judgment Because BESE was permitted under Section 5 of the 2 4 Charter Cantract to revoke Pelican charter immediately once it determined that s the health safety or welfare of the students was threatened BESE act was not s illegal And since BESE had the discretion to revoke the charter issuance of a writ of mandamus is not relief available under the allegations or documents attached to the petition Similarly Pelican has failed to demonstrate that BESE s revacation was unlawful or to make the requisite showing of either irreparable harm or that it can prevail on the merits of the case so as to support issuance o any injunctive relief Lastly in reviewing the trial court action of sustaining the s 13 exception of no cause of action we have examined Pelican rights status and s other legal relations under the Chart Contract and Charter School Law and r determined that neither the allegations nar documents attached to the petitian require that BESE afford Pelican a revocation hearing As such Pelican is not entitled to a declaratory judgment so ordering Thus we find no error in the trial s court action of sustaining the peremptory exception of no cause of action inso ar as the terms of the Charter Contract or the Charter School Law OPEN MEETINGS LAW OML s Louisiana OML requires every meetin of any public body shall be open to the unless closed public pursuant to express provisions of the OML See La S 14 R 42 A meeting is the convenin of a quarum of a public body to deliberate or act on matter a jurisdiction or over advisory which the public body has supervisian control It also means the convening of a quorum of a power public body by the public body or by another public official to receive infarination regarding a jurisdiction matter or over advisory which power the public body La R S has supervision control A 13 42 l A public body includes a state board where such body passesses policy makin advisory or administrative unctions including any cammittee or subcommittee of that board See La R S 2 A 13 42 Any action taken in violation of the OML is voidable by a court of 3 Althaugh in its etition Pelican averred that BESF had violated the I Adrninistrative ouisiana Procedures Act APA because BESE revocation and termination were bascd solely on the s terms of Section 5 of the Charter Contract no adjudication occurrcd such that provisions of 2 4 the AI apply See Metro RiverboatAssociates Inc v Louisiana Gamirzg Control Bd 2001 A 0185 La 10 797 So fiSG 662 n or purposes of the APA an adjudication is an O1 16 2d 7 agency proceedin that results in a disposition that is required ta be made by constitution or statute after notice is iven and a hearing is held unlcss some statute or the constitution requires a hearin and aotice an a action is not an adjudication for purposes oi act ency the l4 competent jurisdiction La S 24 R 42 In an OML enforcement proceeding plaintiff may seek and the court may grant among other things a writ of mandamus injunctive relief and a declaratory judgment See La R 42 S 2b Pelican asserts that b BESE is a public body the suspension of its cause charter without a public meeting was illegal under the OML Thus Pelican claims that under La R 42 it is entitled to relief and that the trial court dismissal S 26 s of its claims was ther erroneous fore Pelican has not cited and we have not found any requirement that a suspension of a charter must be made at a meeting of BESE Moreover accordin to the allegations of its petition in paragraph 9 Pelican averred o n information and belief neither Dastugue nor BESE complied with tk OML by e calling a board meeting with notice praper and voting ta authoriz the suspension described in the July 1 S letter Nothing in either the allegations of or the documents attached to the petition avers or shows that BESE action of s suspending Pelican charter was taken as a result of a meetin that was not open s 4 Parl I or Title 28 I 305B states in relevant part AC The president shall conduct SE B meetings and perf duties orm designated hy B or by statute The president shall si on hehalf of BESE SF n contracts agreennents and official documents approved by SESE I or he president is authorized to makc c hoc decisions for BESE in emergency d situatians when BFS is not in regular or special session and where policies and statutes are silent Hawever any such decisions which constitute an obligation fiicial o position or actic of BESE are subject to ratification by BESF at the n next scheduled meetin The presidcnt shall appaint members of standing and special committees of BESE BESE suggests in its appellate brief that Dastugue acted pursuant to her emergency powers under B 305 when she issucd the letter suspendin Pelican Although the rccord fails ta establish whether BES was in regular or special session on July 15 2011 when the letter was sent so as invoke the emergency power of the BESE president under 5305 Pelican has not asserted any B claims challen inthe efficacy of the B regulation SE 15 ta the public The record contains a notice to Pelican dated July 27 2011 subsequent to Pelican receipt of the suspension letter advising that matters s relative to Abramson would be considered at the August 3 2011 BESE meeting But Pelican has not averred and nothing otherwise establishes that the August 3 201 l meeting was not open to the public as required by La R S 14 42 Lastly insafar as the action taken by BESE on August 3 2011 which was set forth in the notice of termination hand delivered to Pelican on August 3 2011 Pelican has not alleged or otherwise established in its documentary attachments to the petition that BESE failed ta comply with the OML requirements There are s no allegations ar documents establishing that the August 3 2011 meeting was conducted closed or without a quorum Our review shows that Pelican simply has not alleged any actions by BESE that are in vialation of the OML Accordingly the trial court correctly concluded that Pelican has ailed to state a cause of action for relief under the QML AMENDMENT OF PETITION Pelican complains that the trial court erred by disallowing it the opportunity to amend its petition to state a cause of action And while this appeal was pending Pelican fled a motion to remand with this court requesting in the alternative to a reversal of the trial court dismissal of its petition an opportunity s to more specifically allege the unconstitutionality of the regulatians In light of our determination that BESE had the option to revoke and terminate Pelican charter under the terms of the Charter Contract or the s procedure of Chapter 17 ofBulletin I 2 incorporated into the Charter Contract by the Charter Schaol Law and chose to proceed according to Section 5 whether 2 4 16 1701 and 1703 of Bulletin 12b are unconstitutional is inconsequential Therefore we find that the grounds of the objection cannot be removed by amendment of the petition See La C art 934 United Teachers of New P OrCeans v State Bd of Elementa and Secondary Educ 2007 La App y 031 1 st Cir 2d 08 26 3 985 So 184 198 Thus the motion to remand filed in this court is denied While Pelican has raised contentions in its appellate brief suggesting that BESE went into an executive session to consider whether or not to revoke the Abramson charter Pelican has not suggested that BESE took final or binding action during an ex session or otherwise entered into an executive session cutive as a subterfuge to defeat the purposes of the OML Thus because an amendment of the petition would be a vain and useless act we find no error by the trial court in dPelican request to amend its petition nying s DECREE For these reasons we affirm the trial court judgment sustaining BESE s s peremptory exception raising the objection af no cause of action and dismissing s Pelican claims Appeal costs are assess against plaintiff Pelican d appellant Educational Foundation Inc AFFIRMED MOTION TO REMAND DENIED 5 Based on the allegations of its supplemental petition and the attached terminatian notice Pelican has conceded that the r termination of its ck was actian undertaken by vocation and arter the entire membership of BESE and not just by Dastugue in her capacity as president Therefore insofar as an amendrnent of its petition under La C art 934 Pelican cannot factually allege F a basis for a complaint that Part I of Title 2 LAC 305 may be unconstitutional or that B Dastugue exceeded her authority in issuin the suspension since it has conceded that the entire membership of BESE clearly ratified her action on August 3 2011 See n supra 4 17

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