Board of Ethics In the Matter of Jennifer Sneed

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STATB OF LOUIS[ NA A COURT OF APPEAL FIRST CiRCUIT 2012 CW 1849 BOARD OF ETHICS N THE MATTER OF JENNIFER SNF, D [ E Judgment Rendered: OCT 0 7 2013 ON APPLICAT'ION FOR SUPERVISORY REVIEW FROM THE S[ D[ N[ ADMINISTRATIVL: LAW O V OF ETHICS ADJUDICATORY QOARD- PANEL A DOCKE'1' NUMBER 201 I18685 STATE OF I. OUISIANA HONORABLE JOHN O. KOPYNEC PRESIDING ADMINISTKATIVE LAW JUDGE Attorneys for Relator Pauline F. Hardin New Orleans, Louisiana Jennifer Snced Virginia W. Gundlach New Orleans, Louisiana Kathleen M. Allen Attorneys for Respondent Michael Louisiana Board of Ethics Dupree Tracy M. Barker Baton Rouge, Louisiana BFFORE: KUHN, PETTIGREW, AND McDONALD, JJ. r/ j fi Z ¢ i 1' l er..,° CvG3o^. 1.-. 1 , Gc% O ieaaGP' +'-- - S' S, McDONALD,J. ln this Code of Governmental Ethics enforcement action, a former member of the Jefferson Parish Council challenges the Louisiana Ethics Adjudicatory Board's denial of her peremptory exception raising the objcction of prescription, which she raised in response to the Louisiata Board of Lithics' charge alleging she viclated La. R. . 42:124. by failing to timely file a Personal Financial S 2 1 Disclosure Statement. We grant a writ of certiorari and render judgment di:; lle case for the reasons set Corth below. missing FACTUAL ANll PROCEDURAL BACKGROUNU Jennifcr Sneed began serving as a memUer of the Jefferson Parish Council in Ja: ary of u 2004. substantially revised Several years later, in 2008, the Louisiana Legislature the Code of Covernmcntal Ethics; includcd in the changes was the creation of new laws that expand the disclosure requirements applicable to public office holders like Ms. Sneed. One of the new laws, La. R. . 42:124. requires public office holders S 2, 1 re} resenting a voting district with aopulation of five thousand or inore persons to fil:: Per ¢onal Financial Disclosure Statement (" a s Statement"). The Statement rer, ires the disclosure of personal financial infortnation regarding both the public u of[ and the public officer° icer s spouse, including information about their business ownership interests (if exceeding ten percent of the business),the amount of in_ they derive from their respective employers and businesses, their ome iir:: property and investment security interests, and their loans and novable liabilities. The statute requires that the Statement be filed by May IS`of each year during which the person holds office and by May 15` of the year following th. termination of the holding of such office. Failure to timely file the Statement i he stanite does permit the holder of the public office or position w designate the amount by choosing the apl icable range oC income rather than requiiing disclosure of the esact amount. See La. R. .42: I S 1242( D). reuired by La. R. . 42:124. subjects tihe public officer to civil and criminal S 2 1 perialties. See La. R. . 42:124. S 4. 1 The enacting legislation S 1 for La. R. . 42:124 ? provided that the statute would take effect on January 1, 2009. See Act l,Section 6 of the 2008 First Cx. traordinary Session. However, subsequent legislation stipulated that any person hclding an office or positioil on or after July l, 2008 would be required to file the Statement. See Act 162, Section 6 of the 2008 Regular Session. Act 162 was only signed into law on June 12, 2008; therefore, the legislation gave public ofFicers like Ms. Sneed less Uan one month of notice before they became subject to the extensive uew disclosure obli ations set forth in La. R. .42:124. Id. S 2. 1 After La. R. . 42:124. was passed into law but before it took effect, on S 2 1 Aiigust 22, 2008, Ms. Sneed resigned fio office. Ms. Sneed did not file the n Stteinent on or before May I5, 2009. lhe fiailure of Ms. Sneed to file the Sttement in May of 2009 prompted tlle Louisiana I3oard of Ethics the Board") ( ` to ivestigate. The first action taken by the Board was to transinit a delinquency notice to Ms. Sneed in .lune of 2010, more than a year after tle alleged violation ofi La. R. . S 42:I 124. . The notice was returned to the Board unclaimed. On September 27, 2 2C l0, the Board successfully served a delinquency notice on Ms. Sneed; the notice gave Ms. Sneed fourteen business days to iile the Statement or submit an answer contesting the allegations. Ms. Sneed, through counsel, timely filed an answer di, sputing the Board's allegation that she was required to file the La. R. . 42:124. S2 1 St tement in light of the fact that she left public office before the statute took l, complete conlenis of Section 6 oF Act I62 of the 2008 Regular Scssion provide: e 71e provisions of Section Z of this Act shall uot rcquirc any person whose public sercicc teiminated prior to Iuiy 1, ZOOft, to file a financial stateinenl in connection with such public ervice. HoNe- person er, any holding an ofGce or position on or afrer July 1, Z008, shall be rcquired to Gte hnancial statements iu cnnnec[ion vith the holding of such office or position in zecordance with the provisions of Section Z of tliis 3ct 3 effcL Ms. Sneed asserted that it would be unconstitutional to retroactively apply La R. . 42:124. to persons who were not in office at the time the law took S 2 1 cPfect. The Board rejected Ms. Sneed's claim tllat La. R. . 42:1 124.2 did not apply S to her, positing that Ms. Sneed was required to file the Statement because she did nct terminate her service on the Jeffei Parish Council before July l, 2008, the pivotal clate set forth by Act 162. The Board's decision was memorialized in a letler written to Ms. Sneed's counsel that was dated December 8, 2010. n its letter, the Boai gave Ms. Sneed fourteen business days to file the Statement and ed that failure to do so would subject her to an automatic late filing fee of iu: icat 100 per day, up to a maximum of 2500, and would result in the matter being $ , placcd before the Board for further action. Ms. Sneed did not tile the Statement. As a result of Ms. Sneed's failure lo file the Statement, the f3oard voted on 5eptember 15, 201 1 to issue a charge against Ms. Sneed; the charge was then filed on October 28, 201 L The charge sought civil penalties pursuant to La. R. . S 42: I 124.4 on grounds that Ms. Sneed violated La. RS. 42:124. by failing to file 2 1 th.Statement on or before Ma Y 15 2009. Iri response to the charge, Ms. Sneed filed exceptious raising the objections of no cau5e of action, lack of subject matter jurisdiction, and prescription. In the ne cause of action exception, Ms. Sneed cotltended that the charge did not state a cause of action because it was unconstitutional to apply La. R. . 42:1 124.2 to her S given that she no longer held public office when this statute took effect. In the lack of subject matter jurisdiction exception, Ms. Sneed contended that the L, ouisiana Ethics Adjudicatory Board (the " djudicatory Board") A lacked jurisdiction to decide the constitutional issue raised by the application of La. R. . 42: 124.2 to S 1 her. And lastly, in the prescription exception, Ms. Sneed contended tltat the Board exceeded the two- ear prescriptive period set forth in La. R. . 42: 163, which y S 1 4 recuires the Board to take action to enforce a provision of the Code of Governmental Ethics within two years following the discovery of the occurrence of the alleged violation, because she contendd the period commenced to run on May 15, 2009, the date her Statement was allegedly due, yet the Board did not file its charge until October 28, 20l I,more than two years later. The hearing on Ms. Sneed's exceptions beail on July 13, 2012. Rather than conclude the hearing on that date, the Adjudicatory Board ordered the Board to supplement the record with evidence with respect to when it discovered that Ms. Sieed had not filed a Statement, recessed the hearing, and ordered that the hearing resume in September. Before the heai resumed, the Board filed into the record the atfidavit of a Board employee, with a computer Log attached theretq as evidence tliat the Board discovered Ms. Sneed's failure to file the Statement on Februaiy 19, 2010. The hearing concluded on September 28, 2012. The Adjudicatory Board subsequently denied Ms. Sneed's exception of prescription in a decision issued on October 9, 2012. The Adjudicatory Board based its decision on its tinding that the Board discovered the alleged violation on February 19, 2010, and took action to enforce the provision on September 15, 20l 1, less than two years later. The Adjudicatory Board pretermitted consideration of the peremptory exceptions of no cause of action a1d lack of subject matter jurisdiction in light of the constitutional issues raised therein. Ms. Sneed now cequests review of the Adjudicatory Board's October 9, 2012 decision pursuant to our supervisory jurisdiction. LAW AND ANALYSiS Louisiana Revised Statutes 42:163 sets forth the following two prescriptive 1 periods to limit the time within which the Board may bring an action to enforce the Code of Governmental Ethics: 5 No action to enforce any provision of the Code of Governmental [ Ethics] shall be commenced after the expiration of two yeais following the discovery of the occurrence of the alleged violation, or four years after the occarrencE of the alleged violation, whichever period is shorter. At issue herein is when the discovery of the occurrence of the alleged violation occurred to trigger the running of the two-eae prescriptive period and when the y Board took action to enforce La. R. . 42:124. the provision of lhe Code of S 2, 1 Governmental Ethics that Ms. Sneed allegedly violated. The Board argued, and the Adjudicatory I3oard agreed, that the two- ear y eriod commenced to run on February 19, 2010, the date the Board actually discovered Ms. Sneed° s failure to file the Statement according to the evidence the Board filed into the record. Ms. Sneed argued that the two- ear prescriptive period y commenccd to run on May 15, 2009, the date the Statement was allegedly due, because this is the date the Board should have known that the alleged violation occurred. Ms. Sneed's argument is based on her contention that the discovery rule embedded in the doctrine of contra elon valeiatenz applies to this presciiptive period, and she is thereby raising the novel argument that contra aon valertem should be applied to diminish rather than enlarge) the time available to bring an ( action. Ms. Sneed alternatively argues that the Board failed to presenY sufficient evidence to prove that that the Boai ¢ d discovered the occwrence of the alleged violation on February 19, 2010. The Board also argued, and the Adjudicatory Board agreed, that the Board took action to enforce La. R. . 42:124?on Scptcmber l5, 2011, the date the S 1 Board voted to issue a charge against Ms. Sneed. Ms. Sneed argued that the Board took action to enforce La. K. . 42:124. on October 28, 20l J, the date the Board S 2 1 filed the fonnal charge against her. 6 The Louisiana Board of Ethics Che Board is charged with administering and enforcing the Code of Governmental Ethics. S La. R. . C). 42:132( The purpose of the Code of 1 Governmental Ethics is to further the public interest by ensuring that the law protects against conflicts of interest on the part of Louisiana's public officials and state employees by esYablishing ethical standards to regulate the conduct of those persons. See La. R. . 42:101; In re Arnold, 2007- 342 (La. App. I" S 1 2 Cir. 2 08), 5/3/ 991 So. d 531, 536. 2 n furtherance of that purpose, the Louisiana Legislature passed a new law in 2008 requiring each person holding a public office who represents a voting district having a population of five thousand or more persons to annually file a Personal Financial Disclosure Statement. La. R. . S 42: I 24. . 1 2 I' information required lo be included in he Statewent, as set fortl in La. RS. 42:1242( is as lollows: lie C), 1 I) Ihe full name and mailing address of the individul who is required lo file. 2) The full name of he individual'ti spouse, if any, and tlie spouse's oecupation and principal business addresc. ihe name of the employer, ob title, and a briefjob description of each Cull-ime or part-iine j t t einployment posidon held by the individual or spouse. 4)( The name, address, brief description of, and nature of association with and the amount of a) interest in each business in which Ue individual or spouse is a director, officer, owner, partner, member, or traztee, and in which the individual or spouse, either iudividually or collectively, owns an interest which exceeds ten percent of that business. b) llie name, address, brief descriplion of, and naWre of association with a nonprotit organization in which the individual or spouse is a director or officcr. S)( i) " name, address, type, and amount of each source of income receied by the individual or a)( Che spouse, or by any business in wlicl ihe individual or spouse, either individually or collectively. owns an interest which eceeds ten percent of fliat business, which is received from any of the following: aa) 1he state or any political subdivision as detined in Article VT of the Constitution of Loui,ana. i bb) Services performed for or in connection wth a gaming interest as defined in R. . S 3) I R: I 505. 3)( a). L) ( 1 2 ii) fb) c) d) 6) anding the Notwids[provisions of Subsection D of this Section, amounts reported pursuant tn this Subparagraph shall be reported by specitic amount rather than by category of value. Che name and address of any employer which providcs incomc to the individual or spouse pursuant to Uie fulltime or part-ime employment of dte iudividual or spouse, including a brieC t description oi the nalure of he services rendered pusuaut to sucl ernployment and the amount of such income, ercludin inforrnation reyuired to be reportcd pursuaut to Subparagraph (a)of this Paragraph. 1' e name and address oCall businesse which provide income to the individual or spouse, h including a brief description of the nature of services rendered lor each business or of the reason such income was received, and the aggregate amount of such income, excluding infonnation required to be reparted pursuant to Subparagraph (a) ( ef this Paragrapli. or b) A description of de type of auv other income, exceeding one thousand dollars received by the individual or spouse, including a brief description of the nature oF the services rendered for the income or the reason such income was received, and the amount of income, excluding information required ro bc reported pursuant to Subparagraph (a), or ( ) this Paragraph. b),c of ( A brieCdescriplion, fair market value or use value as detcrmined by the assessor for purposes of ad calorem taxes, and die location by state and parish or counry of each parcel of immovable property in which the individual or spouse, either individually or collectively, has an interest, provided that the fair market value or use value as determined by Lhe assessor for purposes of ad valorem taxes for such parcel of immovable properry cxceeds two thousand dollars. 7 Che Statement is recuired to be filed by May 15`" each year during which of the person holds an office or position and by May 15`'of the year following the termination of the holding of such office or position. La. R. . 42:124. If a S 2. 1 person fails to timely tile the Statement as required by La. R. . 42:124. the S 2, 1 E3oard shall notify the person of such failure by sending the individual a notice of delinquency immediately upon discovery of the failure. La. R. . 42:I 124.4. S The Board'. s Enforeemeft Authority The Board may, by a twothirds majority vote of its membership, consider any malter that it has reason to believe inay be a violation of the Code of Governmental Ethics. La. R. .42:141( The chairman of the Board may S B)( a). 1)( 1 assign a matter to the appropriate panel for investigation, in which case the panel shall conduct a private investigation to elicit evidence upon which the panel shall delermine whether to recotnmend to the Board that a public hearing be conducted or that a violation has not occutred. Id. Following an investigation, if the Board 7) The name and a brief description ofeaeh inveshnent security having a value erceeding ftve thousand dollars held by the individual or spouse, ezeLuding ariablc annuities, variable life insurance, variable universal life insurance, whole IiCe insurance, any other life insurance product, mutual funds, education invcstment accounts. retirement investment accounts, govcmincnt bonds, 8) and cash or cash equivalen investmenG. This Paragraph shall not be dcemed to require disclosure nf information concerning any property held and adminislered for any person other than the individual or spouse under a Uust, tutorship, curatnrship, or other custodial instrumenl. A brief description, amount, and date of any purchase or sale by the individual or spouse, in cxcess of five thousand dollars, of any imroovable property and of any personally owned tax credit certiticates, stocks, bonds, or commodities futurec, inclading any option to acquire or dispos'e of any immovable properry or of any personally owned tax credit certificates, stocks, bonds, or comnodities futures. This Paragraph shall not be deemed to require disclosure of information concerning variable annuities, variabie life insurance, variable uuiaersal life insurance, whole life 9) a) h) c) insurance. any other Life insurance product, routual funds, education investment accounts, retiremen[ investment accounts, government bonds, cash, or cash equivalent investrnenis. The name and address of each creditor, and name of each guarantor, if any, to whom the iiidicidual or spouse owes any liability which esceeds tan thousand dollars on the last day of the reporting periad excluding: Any loan secured by movable properry, if such ]oan doe, not exceed the purchase price of Ihe movable properry which secures it. Any liability, secured or unsecured, wliich is uaranteed by the individual or pouse for a business in which the individual or spouse owns any interest, procided that the liabiliry is in the name of the business and, if the liability is a] that the individual or spouse does not use oan, proceeds from the loan for personal use unrelated to the businevs. Any loan by a licensed finaneial instimrion which loans moiey in the ordinary course of business. d) e) 10) Any IiabiLiry resulting from a consumer credit uansac[ as dctined in R. . 9: ion S 13). 3516( Ary loan from au immediate family member, uuless such family member is a registered lobbyist, or his principa] or einploycr is a registcred lobbyist, or he employs or is a principal of a registered lobbyist, ar wiless such tamily inenber has a contract with tlie state. A certiGcation that cuch individual has filed his fcderal and state income ax returns, or has filed for an extension of time for filing such tax retums. 8 detennines that a public hearing should be conducted, the Board shall issue charges. La. R. .42:141( S C)( a). 3)( 1 Failure to file the Statement required by La. R. . 42:124. subjects the S 2 1 public officer to an assessment of penalties of one hundred dollars for each day until thc Stateinent is filed. La. R. . 42:124. If it is found that the public S 4( )( 2). C 1 ofticer has willfully and knowingly failed to file the Statement, then the public officer shall be subject to prosecution for a misdemeanor. La. R. . S 42: I 24. 1 D)( ( a). 1)( 4 Standarrl of'eview R Whenevcr a person is aggrieved by any action taken by the Board or the Adjudicatory Board, she may appeal to the First Circuit Court of AppeaL La. R. . S 42:142. Except as otherwise provided in the Code of Governmental Ethics, all 1 proceedings conducted by the Board shall be subject to and in accordance with the Louisiana ndministrative Procedure Act APA"), R. . 49: 50- La. R. . (" La. S 972. 9 S 42:143; ln re Ark- a1 Tex Antique nnd Classic b' L ehicles, Inc., 2005- 931 (La. 1 App. 1"`Cic 9/5/ 943 So. d 1169, 1173, writ denied, 2006- 509 (La. 06), 1 2 2 O7), I/ 948 So. d I51. 12/ 2 The APA specifies that judicial review is coniined to the record, as developed in the administrative proceedings. La. R. . 49: 64( The reviewing S F). 9 court may reverse or modify the agency decision if substantial rights of the appellant are prejudiced because the administrative findings, inferences, conclusions, or decisions are: 1) in violation of consTitutional or statutory provisions; 2) in excess of the statutory authority of the agency; 3) made upon unlawful procedure; 4)affected by other error of law; 5)arbitrary, capricious, or an abuse of discr ¢ tion; or 6)not supported and sustainable by a preponderance of e evidence as determined by the reviewing court. La. R. . 49: 64( On legal S G). 9 issues, the reviewing court gives no special weight to the findings of the 9 adminisU tribunal, but conducts a de novo review of questions of law and renders judgment on the record. In re Ark- a- So. d at 1 173. 7ex, L 943 2 A. PRESCRIPTION Generally, the party pleading prescription has the burden of proving the facts supporting the exception. Peak Performance Physical Therapy & Fitness, LLC v. Hrberreia Coiporation, 2007- 206 La.App. 1"Cir. 6/ / So. d 527, 531, 2 ( 08), 6 992 2 Nrit cleaiecl, 2008- 478 La. 10/ / So. d 1018. However, if prescription is 1 ( 08), 2 3 992 evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has iot prescribed. Straub v. Richardson, 2011- 689 ( a. App. l` 1 L Cir. 12), 3 5/ / So. d 548, 552, wt ¢ t deraied, 2012- 212 La. 9/1/98 So. d 341, 2 92 i 1 ( 12), 3 2 cer ¢ . t deaied, U. . _ S 133 S. t. 1805, 185 L. d.811 (2013). C 2d E n this case, the face of the charge did not indicate the date on which the Board discovered Ms. Sneed° s failure to file the Statement; the charge only aNeged that Ms. Sneed failed to file her Statement on or before May 15, 2009; that Ms. Sneed was seived with a Notice of Delinyuency on October 12, 2010; and that Ms. Sneed fiailed to file the Statement after receiving the Notice of Delinquency. Since the charge only reflected the date of the alleged violation, the Board possessed the burden of proving t} its action had not prescribed. See, e. .,Doe v. Delta at g Women's Clinic of Baton Rouge, 2009- 776 La. App. 1"Cir. 4/0/37 So. d 1 ( 10), 3 3 1076, 1080, wr ¢ itdenied, 2010- 238 La.9/7/45 So. d 1055. 1 ( 10), 3 1 fhe e; vidence the Board filed into the record included the affidavit of Board employee Robin Gremillion, who averred that another member of thc staff of the Ethics Disclosure Division who was no longer working for the Board made the discovery of the alleged violation on February 19, 2010. The affidavit was signed by Ms. Gremillion on August 16, 2012, more than a year after the Board contends We reject the Board's contention that no violation of La. K. . 42:1242 eould occur until after the public ofticer S 1 receives and fails to respond to a Notice of Delinquency. l' violation occurs on the da[ the Statemen[ iti duc. he e 10 it discovered the violation. Affixed to Ms. Gremillion's af6davit was a verified copy of a computer log from the electronic filing system maintained by the Board. Thc log, entitled Failure to File Report: 2008 PFD: Annual for Councilmember" Jefferson Parish, District 5", contained a notation dated February 19, 2010, that stated, Rccvd Candidate election recocd indicating failure to file."Each page of " the computer log reflected the signature of the Board's executive secretary verifying that it was a true copy. Ms. Sneed contends that the Adjudicatory Board improperly considered Ms. Greroillion's affidavit because it was not made on personal knowledge and it failed to establish sufticient evidence that the charge was timely filed. For the reasons set forth belov, find that the evidence presented by the Board was sufficient to we establish that the Board's actual date of discovery of the alleged violation was February 19, 2010. The Adjudicatory Board may take evidence and require the production of any records that the Board or panel deems relevant or material to the investigation or hearing. La. R. .42:141. Also, in adjudication proceedings, evidence, S 4( )( 1). B 1 including records and documents in the possession of the agency of which it desires to avail itself, shall be offered and made a part of t1e record, and all such documentaiy evidence may be received in the form of copies or excerpts, or by incorporation by reference. La. R. . 49: 56( Agencies may admit and give S 2). 9 probative effect to evidence that possesses probative value commonly accepted by reasonably prudent roen in the conduct ofi their affairs. La. R. . 49: 56( A S 1). 9 more relaxed standard for the admissibility of evidence is the general rule in adininistrative proceedings. Spreadbury v. State, Dep't of Public Saf' ty, 99-233 e 0 La.App. 1"Cir. 11/ / So. d 1204, 1209 citing Claaisson v. Cajun Bag & 99), 2 5 745 ( Satpplv Co., 1225 La.3/ / So. d 375, 381). 97( 98), 4 708 2 While the usual rules of evidence need not apply in administrative hearings, the findings must be supported by coinpetent evidence. See Brouillette v. State, Dc'qf Pi+ Safety, license ConU ¢ol arad Dr ¢ Irnp. Div., So. d 529, 532 blic iver 589 2 La. App. I` 1991). Courts have determined the competency of the evidence Cir. presented at an administrative hearing by considering the degree of reliability and trustworthiness of the evidence presented and by considering whether it is of the type that reaonable persons would rely upon. Spreaclbisry, 745 So. d at 1209 2 citing Chursson, 708 So. d at 382 and Brouillette, 589 So2d at 533). 2 In this case, the Board presented the af6davit testimony of Ms. Gremillion and a Board computer log as evidence that it discovered the occurrence of the alleged violation on February 19, 2010. We initially note that the affidavit Yestiuony of Ms. Gremillion alone does not constitute competent evidence because it was prepared by a representative of the Board more than a year after the date the Board purports to have discovered the alleged violation and also because Ms. Gremillion lacked personal knowledge with respect to the date of the Board's discovery of the alleged violation. In sum, the affidavit testimony of Ms. Gremillion was inherently subjective evidence that did not suggest reliability and trustworthiness, to satisfy the requirement of competent evidence in the context of a E3oard proceeding, the evidence presented must be more objective in nature. Although we find the affidavit testimony of Ms. Gremillion alone to be deficieit, find that the computer log presented by the Board did constitute we sui competent evidence for the following reasons. First, the entry on the computec log reflects that it was made on the day the Board contends it discovered the alleged violation. Also, the computer log presented by the Board was a verified copy, signed by the Board's executive secretary. Finally, Ms. Gremillion's testimony that the Board employee who made the February 19, 2010 enh in the computer log no longer works for the Board explains why the Board did not present that employee's affidavit. For these reasons, we find that the t2 Board's computer log in tandem with the affidavit of Ms. Gremillion, consrituted competent evidence sufficient to establish that the Board actually discovered the allegcd violation on February 19, 2010. Ms. Sneed also argues that the date of the Board's actual discovery is not detcrminative because the discovery rule embedded in the doctrine of contra non nren ialE should apply to La. R. . 42:1 163. As indicated above, La. R. . 42: 163 S S 1 sets firth the followingtwo prescriptive periods to limit the time within which the Board may bring an action to enforce the Code of Uovernmental Ethics: No action to enforce any provision of t[he Code of Governmental Ethics] shall be commenced after the expiration of two years following the discovery of the occurrence of the alleged violation, or four years after the occurrence of the alleged violation, whichever perid is shorter. lhe parties dispute whether constructive notice pursuant to the discovery rule should apply to ascertain the date of the discovery of the occurrence of the alleged " violation," whether the riigger for the two- ear prescriptive period should be the or y actual ciate of discovery. i' question of whether the discovery rule should be he applied to La. R. . 42:163 is a res nova issue. As the party asserting the benefit S 1 of corahu rzoa valentem, Ms. Sneed bears the burden of proof of its requisite elements and applicability. See Peak, 992 So. d at 531. 2 Courts created the doctrine of contra noya valentena as an exception to the general rule5 of prescription. Doe v. Romarz Catholic Diocese of Lafayette, 20081088 La. ApF. ( 08), 2 unpublished). It is an ('`Cir. 12/ 3/2008 WL 5377639, p. 4( equitablc doctrine of Roman origin, with roots in both civil and common law, and it is notably at odds with the public policy favoring certainty underlying the doctrine o1' prescription. Id. The principles of equiry and justice that form the mainstay of the doctrine demand that under certain circumstances, prescription be sus}nded because the plaintiff was effectually prevented from enforcing his rights e for reasons external to his own will. Id. Generally, the doctrine of contra non 13 em valea suspends prescription where the circumstances of the case fall into one of four categories. Id. at 5. Pertinent to this case is the fourth category, which provides that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Id. The discovery rule in conmon law is the equivalent to the discovery rule embedded in Ue lurth category of Louisiana's coyitra norz valenten exceptions. See Peak, 992 So? at 532- 33. d 5 his case is unique in that Ms. Sneed seeks to apply the discovery rule to a civii enforcement action, not to an action of an injured pariy. The United States Supreme Court has directly addressed whethei ¢ th discovery ile should apply in the context of a civil enforcement action and, in a unanimous opinion, declined to do so. See Gabelli v. Securities and Exchange Cotnmission, U. _ S._, 133 S. t. C 1216, 185 L. d. 297 (2013). The issue presented in Gabelli was whether the E C. S to suspend the commencement discovery rule could be applied to 28 U. . 2462§ of tle five- ear statute of limitations applicable to a civil enforcement action y brought by the Securities and Exchange Commission.`' ln declining to graft the discovery rule onto this statute, the court noted that the rule exists in part to prescive the claims of victims who do not know they are injured and who reasonably do not inquire as to any injury. The court found that such a justification did not exist when the plaintiff was the government bringing an enforcement action for civil penalties. The court also found that grafting the discovery rule onto 2462 would leave defendants exposed to government enforcement actions not only for five years after their misdeeds, but for an additional uncertain period into the We find that Onr.37 So3d at 1080, is distinguishahle on this baais. 2R U. . 24(2 provides as follow: 0 S i 2q62. I' for coromencing proceedings ' ime I ixcept as otherwise provided by Act of Congress, an action, suit or proceedin for the enforcement of any cicil fine, penalty, or forfeiture, pecuniary or otherwise, slall not be entertained unleas commenced within five ycav fiom the date when the claim first accrued if,vithin the ame penod, the ffender or the property is fixmd within the United Sta[ s in order that proper service may be madc Lhereon. e 14 future. Gabelli, l33 S. t. at 1222- 3. Moreover, the court found that to reach the C 2 oppusite conclusion and require a cout to deternine what a government entity reasonably shnitild liave k would be far more challenging than considering what a deti ¢uded victim should have known. After all, the court noted that it is a unclear whether and how courts should consider agency priorities and resource constraints in aplying this test to government enforcement actions. I'e reasons addressed in Gccbelli apply with equal force in the present case. h While adopting the discovery rule in the case before this court would not enlarge the time available to the Board to bring this enforcement action, it could enlarge the time for the Board to bring an action if it were applied to the four- ear period y also containcd in La. R. . 42:163. S 1 Additionally, by refusing to apply the discovery rule to La. R. . 42:163, this court furthers Louisiana's public policy of S 1 favoring certainty that underlies the doctrine of prescription. See Doe, 2008- 088, 1 2004 WL 5377639, p. 4. Finally, requiring courts to apply the " hould have s known" test to the actions of a government entity is a challenging endeavor that would placc an undue burden on courts. The language of the statute itself also indicates that the discovery rule should not be applied to La. R. .42:163. It is well settled that in interpreting any statute, S 1 when tle law is clear and unambiguous, the law shall be applied as written. Mc ¢oizalcl v. Louisiana State Board of Prr-ate Invesligator Examiners, 2003- 773 D v 0 La. n} . l" 2/3/873 So. d 675. Further, it is presumed that every p Cir. 04), 674, 2 2 word, sentence, or provision in the law was intended to serve some useful purpose, that some eff' ct is to be given to each such provision, and that no unnecessary e words or provisions were used. Id. Conversely, it will not be presuned that the lawmaker inserted idle, meaningless, or superfluous language in the law or that it intendecl for any pari or provision of the law to be meaningless, redundant, or u sel ess. If. 15 npplying these principles of statutory construction to La. R. . 42:163, we S 1 find that the obvious intent of the legislature by choosing " iscovery" of the d occurrencc oi' the alleged violation as the trigger for the two- ear period was to y provide Uc E3oard with two years from the date of the Board's actual discovery of the alleged violation. This interpretation is reasonable in light of the additional prescriptive period conYained in the statute, which creates an outside limit ofi four years frrnii the date of the occurrence of the alleged violation. F' urthermore, our interpretation of La. R. . 42:163 creates an appropriate balance between S 1 promoting the public policy favoring certainty in the law and acknowledging the reality that it may be impossible for the Board to fulfill its duty to enforce the Code of Governmental Ethics if the two- ear prescriptive period commences to run as y tioon as thc violation occurs. Out interpretation of La. R. . 42:163 is further supported by comparing S 1 this statute to La. R. . 9: the statute that creates the prescriptive period S 5628, governing medical malpractice actions, which provides in pertinent part that no medical malpractice action shail be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect: A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed uiider the laws of this state, or community blood center or tissue bank as defined in R. . 40:299. whether based upon tort, or breach S 41( A), 1 of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, ar within one year from the date of discoveiy of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be tiled at the latest within a period of three years from the date of the alleged act, omission, or neglect. We lind tha[the four- ear penod commenced to run in this case on May I5,2009, the daCe de Sta[ ment was due. y e Wc alsn 6nd t6u1 tlie foiu- ear tirne period set forth in La. R. . 42: y S ll63 is akin to the medical malpractice precriptive period in that the four- ear period is nouinally prencriptive, ye[ acts as a peremptive peried in that it y cannoi be inferniptcd or suspended. See eg. S]aw ti. Mzotagh, 2009- 239 (La. App. 1"Cir. li' 3/2011 WL a 2 11) 1 1991 I R, p. 5( unpublished),writ denicd, 201 I-(La_ 1/1), So3d 1255. 0320 I 4/ 6D 16 lt stands to reason that if the legislature wished to entirely incorporate the discovery rule into La. R. . 42:163, it would 11ave drafted the statute in the S 1 manner it drafted La. R. . 9: creating the option of two years from the date of S 5628, the occurrence of the alleged violation or two years from the date of the cliscovery of the occurrence of the alleged violation. The fact that the legislature did not, further demonstiates that the legislature intended that the two- ear prescriptive y period should commence to run oi1 the actual date of discovery of the alleged violatioi. For these reasons, we find that Ms. Sneed failed to satisfy her burden to prove that the discovery t° applies to La. R. . 42:163. Hence, the two- ear ule S 1 y prescriptive period commenced to i2in on Februaiy 19, 2010, the date the Board discovered the alleged violation. The second question with respect to the interpretation of La. R. . 42: 163 is S 1 when the Board took action to enforce La. R. . 42:124. which would constitute S 2, 1 the dale prescription accrued. Although this determination does not affect the outcome of this case, we do not find that the Board took an action to enfoi thE alleged violation on September 15, 201 l, date thc Board voted to issue a charge the against Ms. Sneed. Rather, we find that the date the Board takes action to enforce an alleged violation is lhe date the Board files the formal charges. See La C. . art. C 3462 and bi r ¢ Marceaux, 96-215 ( a.App. 1"ir. 2/4/689 So. d 670, 673. e 1 L C 97), 2 1 In sum, we find that the Board° s enforcement action has not prescribed because the two- ear prescriptive period conmenced to run on February 19, 2010, y and the Board fiiled farmal charges on October 28, 201 l,less than two yeacs later. Iiowever, we find that a more fundamental problem exists with respect to the Board's enforcement action aainst Ms. Sneed in that it fails to state a cause of action. 17 B. NO CAUSF: OF ACTION In its enforcement action, the Board alleges that Ms. Sneed violated La. R. . S 42:I 1242 by failing to timely file her Stateinent. Before the Adjudicatory Board, Ms. Sneed filed an exception raising the objection of no cause of action on grounds that it would be unconstitutional to aply La. R. . 42:124. to her. Specifically, S 2 1 Ms. Sneed argued that because she no longer held public oftice when La. R. . S 2 42:124. became effective on January l, 1 2009, the retroactive application of the statute to her would disturb her vested rights ofi due process and privacy and would constitute a violation of the ex post fcacto clauses of the federal and state constitutions. The Adjudicatory Board pretei ¢tted consideratiou of Ms. Sneed's i exception in light of the constitutional issues raised therein. NoYing the unique posture of this case in that an exception of no cause of action has been filed and both parties have briefed the constitutional issues pertailing to Ms. Sneed's exception of no cause of action, we choose to invoke our authority to raise the exception of no cause of action on our own notion. See La. P. C. .art. 927( ). function of the exception of no cause of action is to test C B The the legal sufficiency of the petition by determining whether the law affords a remedy on the facts of the pleading. A court must review the petition and accept all well pleaded facts as true, and the only issue is whether, on lhe face of the petition, plaintiffs are legally entitled to the relief souglt. Claiier v. Our Lacly of tlae Lale Nospital, Inc.,2012- 560 La. App. l Cir. 12/ 8/ 112 So. d 881, 0 ( 12), 3 2 885, w ¢ ritderzied, 2013- 264 La.3/5/lQ9 So3d 384. 0 ( 13), 1 We furthermore note our authority to consider the cxception of no cause of action because the issue presented is the constitutionality of a statute as applied to M. . s Sneed, not the per se constitutionality of the statute. Burmaster v. Plaqeemines Parish Governnaent, 2007- 432 La. 5/1/ 982 So. d 795, 802, 2 ( 08), 2 2 citing D& Coastra Company v. Jetfer ¢, I ctior son Dctvis Parish School Board, 203 18 So. d 712 ( a. 1967)).And given our finding thal the Board's action has not 2 L prescribed, we have been unable to dispose of this case on nonconstitutional grounds. See Biirmaster, 982 So. d at 805. We ther proceed to consider the 2 merits of this issue. lu considering whether it is constitutional to aply La. R. . 42:124. to Ms. S2 1 Sneed, we must first resolve the question of whether La. R. . 42:1 124.2 may be S retroactively applied to her iu light of the fact that Ms. Sneed was no longer in offiice on the effective date of the statute, or whether suc} retroactive application would unconstitutionally divest Ms. Sneed oC vested rights. When determining whether a statute should be appiied retroactively, a coLiit inust defer to the legislature's intent. Bourgeois v. A. . Gf ¢eri badusn° es, Inc.,2000- 528 ( P e i 1 La. 01), So. d 1251, 1257. In this case, it is clear that the legislature intended 4/ / 3 783 2 foi lhe newly- dopted I,. R. . 42: 124.2 to be retroactively applied as evidenced a a S 1 by the rehoactivity provision contained in Act 162, Section 6, which provided that persons holding oifice on or after July l,2008 would be required to file the Statement. See, e. .,M. . Fccr^ s, Ltd. v. Eorz Nlobil Corporction, 2007- 371 g J m 2 La.7/ / 08), So? 16, 30. 1 998 d IIowever, even where the legislature has expressed its intent to give a]w a retroactive effect, that law may not be applied retroactively if it would impair contractual obligations or disturb vested rights. See Boui ¢ eois, 783 So. d at 1257. g 2 Ms. Sneed contends that retroactive application of La. R. . 42: 124.2 to her would S 1 disturb her constitutionally protected due process right to fair notice and her constitutionally protected right to privacy. We agree. Under the Fourteenth Aroendment to the United States Constitution and La. Const. Art. 1, § 2 of the Louisiana Constitution of 1974, a person is pt ¢ otected against a deprivatioii of his life, liberty, or propecty without " ue process of law." d See Fielcls v. State Deartment of Piblic Safely nnd Corrections, 98-61 l( 0 La. 19 98), So? 1244, 1250. For due rocess to apply, lhe private interest that 7/ / 8 714 d } will be aifected by state action must be constitutionally cogniaable. Id. If it is, then it becomes necessary to evaluate what specific process is due under the particular circumstances presented. Id. Due process is flexible and calls for such procedwal protection as the particular situation demands. Id. citing Morri. sey v. ( r Brcwcr 408 U. . 471 481 92 S. t. 2593 600 33 L. d.484 (1972)). S C 2d E In this case, Act 162 indicated that La. R. . 42:124. which had an S 2, 1 effective date of January 1, 2009, would be retroactively applied to a person holding public office on or after July I,2008. Incredibly, Act 162 was not signed into law until June 12, 2008, giving public officers like Ms. Sneed less than one month of notice to leave office before they became subject to the extensive new disclosure obligations set forth in La. R. . 42:124. Gonsidering that La. R. . S 2. 1 S 2 42:124. created substantial new obligations, thal the stalute was not passed until 1 after Ms. Sneed assumed her office, that Ms. Sneed was given less than one month of notice of the new obligations, and that the law had not eveil become effective when Ms. Sneed left public of[ we tind that the retroactive application of this ice, statute to Ms. Sneed would violate her due process i to sufficient notice. See, e. ., g SnaitJz v. City ofNew Or- 2010- 464 La. App. 4'' 7/ /1), So. d leans, 1 ( Cir. I 71 3 6 525, 531. Additionally, Article I, 5 of the Louisiana Constitutional provides in perlinent part that every person shall be secure in his person, property, coinmunications, houses, papers, and effects against unreasonable invasions ofi privacy. Cout have described the right to privacy in Louisiana as the right to be " let alone,'... and to be free from ` unnecessary public scrutiny."' Brodericic v. Stnte, Department of Er: vironmental Quali!}-, 0156 La. App. l'" 2000Cir. 00), 5/2/ 761 So. d 713, 715, writ clerziecf, 2000- 714 La. 9/ 768 So. d 1 2 1 ( 15100), 2 1284 citing Capztal Citv Press v. East Baton Rouge Parish Metr-politan Council, ( o 20 96-979 La.7/ / So. d 562, 566).Purther, t] right to privacy protects 1 ( 97), 1 696 2 "[ he varied interests from invasion. Among the interests protected is the ildividual' s right to be free from unreasonable intrusion into his seclusion or solitude, or into his private affairs.°' Parish Ncational Banl v. C. . Lrne, 397 So. d 1282, 1286 La. E 2 ( I 981). ln ascertaining whether individuals have a reasonable expectation of privacy that is coustitutionally protectec, a court must determine not only whether the individual has an actual or subjective eYpectation of privacy, but whether that expectation is also of a type that society at large is prepared to recognize as being reasonable. Azgelo lafi ¢ le CorrstrcECtion, L. . i. State Departmerat of a C. L Trmzsportutiofa and Development, 2003- 892 La.App. 1"Cir. 5/4/879 So. d 0 ( 04), 2 1 250, 255, rit denied, 2004- 442 La. 9/4/ 882 So. d 1131. Our court has 1 ( 04), 2 2 previously found that society at large is prepared to recognize as reasonable an expectatio of privacy in detailed personal financial infoemation when coupled with names and hoine addresses. afrate, 879 So. d at 260. ] 2 Ms. Sneed contends that the retroactive application of La. R. . 42:124. to S 2 1 her constitutes an unreasonable invasioii of her privacy because shE no longer held piblic office when the statute becane effective. Furthcrmore, La. R. . 42:124. S 2 1 requires extensive disclosure of not only her own finacial affairs, but also the financial affairs of her husband. In fact, Ms. Sneed contends that had she known before becoming a city council tnember that she would have to disclose her private financial information, then she would not have run for public office because compliance with the financial disclosure requireitients is imossible for her in light of the fact that she and her husband are separate in property, as well as the fact that her husband's attorney will not provide her husband's financial informarion because her husband is presently under federal investigation. Given the particular tiacts of this case, particularly that Ms. Sneed no lolger held public oCfice when La. R. . 42:124. became effective and because Ms. Sneed assumed public off'ce S 2 1 i 2I before the new financial disclosure requirements were passed inlo law, we tind that it would be an unreasonable invasion oP her privacy iights to retroactively apply La. R. . 42: 124.2 to Ms. Sneed. We emphasize that this loldit is liinited to the S 1 g unique facts of this case and is in no way intended to find that there is a violation of constitutiolal privacy rights generally with respect to the application of the Code of Governrnental Ethics to persons who are not public servants or public officers. We therefore find the application of La. R. . 42:124. to Ms. Sneed is S 2 1 ional unconstiu because its retroactive applicaTion to Ms. Sneed, who resigned from ofitice before La. R. . 42:124. became effcctive, impermissibly disturbed S 2 1 Ms. Sneed's vested rights. We also note that La. R. . 42:124. should not be applied retroactively to S 2 1 Ms. Sneed because the statute is penal in nature, as evidenced by the fact that violations incur the assessment of significant civil penalties and criminal prosecution is possible. See La. R. . 42:I 124.4; S Doe 1. Louisiana Board of Elhics, 2012- 169, 2012- 170 (La. App. 4`'Cir. 3/3/ 112 So. d 339, 346, writ 1 1 13), 1 3 So. 0 ( l 3 deraled, 2013- 782 La.S/ 0/3), _ 3d _. Louisiana jurisprudence has long held t} pcnal laws are strictly construed, and that any ambiguity in the language at found wiihin such statutes must be resolved with lenity and in favor of the inciividual subject to the penalty. Doe, 1 12 So. d at 346. Statutes that are penal in 3 nature have no retroactive application. Del- enap Corporatioa v. Gafayette R Irasurarice Comparry, 616 So. d 231, 232 (La.App. 5'' 2 Cir. 1993), denied, 617 tiirit So. d 91 La. 1993). 2 ( For the foregoing reasons, we find that the Board failed to state a cause of action cognizable in law against Ms. Sneed because it would be unconstitational to retroactively aply La. R. . 42: 124.2 to Ms. Sneed. Fwthermore, we find that no S 1 amendment to the factual allegations of the [3oard's action could cure this 22 fwidamental filaw in the purported cause of action. See, e. .,Johanser v. g Louisimau Higli School Athlelrc Associatiora, 2004- 937 I..npp. l" 6/9/ 0 (a Cir. OS), 2 916 So2d 1081, 1088. Thus, the Board is not entitled under La. C. .art 934 to P. C amend its petition to attempt to state a cause of action. llECREE Finding on our own motiot that the Board's enforcemen action fails lo state a cause of action, we render judgment sustaining the exception of no cause of action and dismissing with prejudice the charge against Ms. Sneed in Ethics Board Docket No. 20 1 1- 8685. The L, 1 a Board of Ethics is cast with all costs of ouisia tlis grant ofi eertiorm-i. WRIT OF CERTIORARI GRAN' ED; T DISMISSED WITH PREJUDICE. 3 JUDGMENT RENDERED; BOARD OF ETHICS IRST C[ RCUIT COURT OF APPEAL IN THE MATTER OF STATE OF LOUISIANA JENNIFER SNEED G ¢ KUHN . NO. 2012 CW 1849 concUrs in the result and assi g ns additional reasons. I concur for the purpose of pointing out that, in addition to failing to state a cause of action against Ms. Sneed, the charge iiled by the Board also was untimely. The crucial issue i1 making this determination is the date on which the two- ear y time limitation for enforcement actions provided by La. R. . 42:I 163 commenced. S Since the charge was filed on October 28, 2011, it was untimely if the time limitations cornmenced on any date prior to October 28, 2009. In setting forth the applicable time limitation for enforcement actions, La. R. . 42: 163, provides: S 1 No action to enforce any provision of this Chapter shall be commenced after the expiration of Lwo years following the discovery of t6e occurrence of the alleged violation, or four years aftei the occurrence of the alleged violation, whichever period is shorter. Emphasis added.) The time limitations provided in La. R. . 42: S ll63 are peremplive. In detemiining wlether a provision is peremptive or prescriptive in nature, courts look to the language of the statute, the purpose behind khe statute. and the public policy mitigating for or against suspcnsion, intn or rcnunciation of that time limit State Bnarrl oEthics v. Ourso, 02-978 (La. 1 03), 4/ %So. d 34G, 349; State Through Division n/' r. Mchutis Brothers 9 R42 2 foit Administra clinn, 0 Cnrishe 97-742 (La. 10/ 1!701 So. d 937, 94C. Although " 97), 2 2 sotne weight' should be given to the usc of the term ` rescriptiou' in the body or title of a statute, it is thc legislalive p ` purose sought to be achieved by a puticular limittion which is the most signiticant and determinative factor in distinguishing a peremptive statute from a prescritive one.'° State Board qJ' thics, 842 So. d at 351 ( uotin * Mchtrtis, 701 So. d at 946 n. ). 2 E 2 8 Althougli the title of La. R. . 42:1fi3 references prescription,° S 1 " consideratiot of its lanuage and a balancing of the legislative purpose of providing a sufficient period for thc Board to bring enforcement actions against the public po]cy of providing certainty and finality to public officials faced with i potential charges, leads to tlle conclusion that tlie time limitations delincated thercin are peremptive in nature. Nevertheless, because the result would be the samc in the instant case regardless of whethcr the time limitations provided by La. R. . 42:163 are prescriptive or S 1 peremptive, out of an abundancc of caution, we will refer to thesc time limitation throughout as presciiptive or peremptive.° The starting point in the inteipretation of any statute is the language of the statute itselF. City of New Orleans v. Louisiana Assessors' Retirement and Relief Fund, OS- 548 (= 2 La. 10/ / So. d l, 07), 2 1 986 17. Words and phrases are to be read in their context and to be accorded their generally prevailing ineanilg. See La. C. . art. C 11; La. R. . 1: . When a law is clear and unambiguous and its application does S 3 not lead to absurd consequences, tlle law shall be applied as wr and xhe letter of it shall not be disregarded in search of the intent of the legislature or under the pretext ofi pursuing its spirit See La. C. . art. 9; La. R. . 1: . C S 4 Moreover, because the pTovision Ms. Sneed is charged with violating, La. R. . 42:124. can result in the assessment of a civil penalty pursuant to La. RS. S 2, 1 4( ), 42:124. the statute is penal in natuce and, together with the statutc setting C 1 forth the aplicable time liinitations for eilforcement, must be strictly construed.' See Matter oflnsulation Technologies, lnc., 1184 La. App. 1st Cir. 2/3/ 95( 96), 2 669 So. d 1343, 1350, writ denied, 96-749 ( a. 5/ / 2 0 L 96), So. d 692; Doe v. 3 672 2 Louisiasa Board of Ethics, 12-169, 12-] ( a. App. 4th Cir. 3/3/ 112 1 170 L 13), 1 So. d 3 0 3 39,346- 7,writ denied, 13-782 ( a. 8/0/ 4 L l3),So. d 3 See also Villere x Louisiafa Board ofEthies, 11-309, pp. 7- La. App. lst Cir. 3/0/ 1 9 ( 12) 3 Kuhn, 1., , dissenting) unpublished), ( writ denied, 12-963 (La. 6/2/91 So. d 0 12), 3 2 970. In addition to being strictly construed, any doubt in the interpretatiol of a penal statute must be resolved with lenity and in lavor of Lhe person subject to the penalty. Doe, I l2 So3d at 346- 7. inally, because the charge against Ms. Sneed 4 [ appears untimely on its face, having been filed more than two years after the Statement's May 15, 2009 due date, the Boai bears the burden of showing it was The failure to Yile a Statement as required by La. R. . 42:l2}? S l exposes a public official to a potential civil fine of $00. 0 per day. See La. R. . 42:124. Additionally, criminal 1 0 S 4( )( 2). C 1 sanctions also are available pursuant to La. R. . 42:124.against a person who willfully and S 4( ) D 1 knowingly fails to timely file a financial disclosure statc, nent; any such criminal action must be 7 filed by the district attarney ar the attorney general. tiled timely. See Doe v. Deltn !' s Cliic of Baton Rotge, 09-776 (La. ornen' 1 App. lst Cir. 4/0/37 So3cl 1076, 080, writ denied, 10-238 (La. 9/7/ 10), 3 ] 1 10), 1 45 So. d 1055. 3 The Board contends the two- ear time limitation for fiiing a dlarge did not y commence until February 19, 2010, when one of its employees actually discovered Ms. Sneed's failure to tile the Statement due on May 15, 2009. n opposition, Ms. Sneed contends that the delay commenced when the Board acquired constructive knowledge of the alleged violation, which she asserts happened on the date the Statement allegedly was due to be tiled with the Board ie., ( . May 15, 2009). This contention is based on Ms. Sneed's claim thaY the discovery rule," " which is one component of the doctrine of contra raon vczletern, is applicable in this natter. Contra non valeatena is a jurisprudential doctrine that delays the commencement of prescription in certain instances where the laintiff is prevented from enforcing his rihts through no fault of his own. Wimberly x Gatch, 93-361 2 635 2 La. 4/ l/ 94), So. d 206, 211. I One of these instances, kuown as tlle discovery rule," applicable wlen the cause of action is neither known nor is reasonably knowable by the plaintiff. See Clavier v. Our Lady of tke Lake Hospital, Inc., 12-560 (La. App. st Cir. 2/ 0 ] 28/ 2), So. d 881, 890, writ 1 l 112 3 0 3 denied. 13-264 ( La. 3/ 13), So. d 384. IS/ 109 Under the "discovery rule," prescription does not commence until a plaintiff oblains eilher acCual or constructive knowledge of facts indicating to a reasariable person that he or she is the victiin of a tort. Canpo v. Correa, O1-707 (La.6/1/828 So. d 502, 510. 2 02), 2 2 n the instant case, there is no merit in Ms. Snced's contention that contra on valealem is applicable. Normally, corztra noi valerztern is asserted by the plaintiff for the purpose of preventing the tolling of prescription. In this case, not 3 There is no merit in the Board's coutention that no violation of l.. R. . 42:124. occurred a S 2 1 until after Ms. Sneed received and failed to cespond to the Notice of Delinyuency she was served with on October 12, 2010. Any violatiun that occurred took place on the date tlie Statement was duc. 3 only is Ms. Sneed asserting this doctrine as the defendant in this matter, she is also atteinpting to utilize corzh-a non vulenteyn to commence the tolling of the applicable time limitation, contrary to its normal function oP prcvcnting the tolling thereof. T' e doctrine of contrc riora valentem has no application under such circumstances. h Never based on our statutory interpretation of the language of La. R. . 42: 163, keeping in mind the strict construction and rule of lenity required by S 1 its penal nature, we agree with Ms. Sneed that the two- ear time litnitation y commenced on the earliest date that the Board obtained either actual or constructive knowledge of the alleged violation. Under this pi the two- year ¢ time limitation commences upon the "discovery" of the alleged violation. As noted, statutory tenns rnust be given their commonly prevailing mealing. In the context ofi prescription, the term " iscovery" commonly has been construed as d encompassiug either actual knowledge or constuctive knowledge of the relevant event. Thus, in instances where prescription commences upon discovery" of an " event, actual knowledge is not requirecl. See Stansbury v. Accardo, 03-691 (La. 2 App. lst Cir. 10/ 9/ 896 So. d 1066, 10C9- 0, writ denied, 04-898 (La. 04), 2 2 7 2 OS), So. d 881; Merlical Review Panel Proceeding of' illiams v. Lewis, 2/ / 4 893 2 W 08-223 ( a.App. lst Cir. 5/3/ 17 So. d 26, 29; Ford v. Rapides Healthcare 2 L 09), 3 1 Systen, L. .OC- 539 (La. App. 3d Cir. 5/ /957 So. d 258, 261, writ C.,1 L 07), 2 2 denied, 07-533 ( a. 0/2/96 So. d 403. 1 L 07), 2 ] 1 In reaching this conclusion, a review of the jurisprudence interpreting La. R. . 9: S A)helpful, sii7ce that provision employs the identical term 5628( is discovery" in setting forth the time limitation appiicable to medical malpractice claims. Specifically, it rovides that the claim must be filed either within one " 4 Although the doctriue of corttra raon valerrtem is not technically applicablc hcrein, arguably one could conclude thal by desigtating the date of discovery as the coinmencement of the time limitations for enforcement actions, the Legislature intended to incorporate the discoveiy rule into La. R. . 42:t 163. See Campo, 828 So. d at 509 (reaching a similar condusion wiUi respect S 2 to the use of the tcnn discovery" in the statute delineating Yhe time limitations for medical " nalpractice claims). 4 i year fi the date of the alleged act, omission, or nglect, or within one year from the date of discovery of the alleged act, omission, or neglect,"although, in no event, longer than three years from the date of thc alleged act, omission, or neglect. La. R. . 9: Emphasis added.)This provision has been constiued to mean 5 A) 5628( ( that actual notice is unnecessary and that prescription commences whenever a plaintiff firsl obtains either actual or ¢constructive knowledge of facts suf6cient to put them on notice that a claim might exist. Conslructive knowledge is notice sufficient to excite attention, put a party on guard and call fot inquiry. Campo, 828 So. d 2 at 510- 1; Stansbury, 896 1 So.? d at 070. Moreover, constructive knowledge is tantamount to knowledge or notice of everything to which a reasonable inquiiy may lead. Camo, 828 So. d at 510; Melical Review Panel 2 Proceeding of iilliams u Lewis, 08-223 La. App. 1 st Cir. 5/3/ 17 So. d 2 ( 09), 3 1 26, 29. The Louisiana Supreme Court reached a similar conclusion in City of New Orleas v. Elrns, 566 So. d 626 La. 1990). The issue before ihe Supreme Court 2 ( was whetlct actual knowledge was required in a situation where the applicable statute provided that prescription commenced when the City " first obtained knowledge" of an alleged aoning violation. Although this language is different than the statutory language in the instant case, tle date lhat a party Grst obtained " knowledge" of an event is functionally equivalent to the dale lhat a party discovered'° that event. Further, in applying the applicable language, the Supreme Court held that, even though the evidence failed to establish actual knowledge, constructive knowledge of the violation alleged was sufficient to trigger the commencement of prescription. City ofNem Orleans, 566 So. d at 633. 2 Therefore, based on the commonly prevailing meaning of the term discovery,"constructive knowledge is sufficient to commence the tolling of prescription oi peremption under I,. R. . 42:163. a S 1 5 1' e Adjudicatory Board h committed legal error in concluding that actual knowledge was required to commence tolling of the time limitations under this provision. In order to cletermine if the charge was timely, the earliest date on whic}t the Board obtained eithcr actual or constructive knowLedge of the alleged violation by Ms. Sneed must be established. I'e Ioard' claim that it did not oblain actual knowledge of the alleged h s violation until February 19, 2010, illustrates the inherent probletn in attempting to objectively establish institutional knowledge or lack of knowledge. In order to prove tllat it did not discover the alleged violation until February 19, 2010, the Board relied on an affidavit from one of its employee who averred that a former Board employee discovered"the alleged violation on that date. Settiig aside the " Q uestion of whether an affidavit that was not based on the affiant's P ersonal knowledge should have been considered, we find the affidavit lacked probative value. The fact that an individual em lo y ee ma y have discovered°'Ms. Sneed's alleged violatio on Februai 19, 2010, has no probative value as to what other Board employees knew or should have known prior to that date. Accepting such evidence would allow the Board to take no action for almost fioue years and then file a charge shortly before the expiration of the maxiinum four- ear limitation y period, claiming it had no knowledge of an alleged violation based on what an individual Boar employee knew, without regard to the knowledge of other employees. Such a result would pervert the public policy favoring finality and certainty that underlies the doctrines of prescription and peremption and cause an injustice to the public official involved. Cf. Jenkias v. Starns, 11-170 (La. 1 12), 3 1/4/85 So. d 612, 623. 2 Louisiana Revised Statutes 4?:l63 requires that an enforcement action be brought within two l yeais of thc discovery of an alieged violation, but in no cvent longer than four years after tlie occurrenec of thoalleged violation. 6 ln any event, regardless of the Board's claim that it actually discovered the alleged violation on February 19, 2010, the applicable time limitations nay have begun tolling earlier if the Board possessed constructive knowledge of thc alleged violation before that date. To make this detcrmination, this Court must evaluate the reasonableness of the Board° s inaction in light of the facts and information available to it. Other relevant circumstances, such as the Ms. Sneed's conduct, must also be considered. See Stansbury, 96 So. d at 1070. 2 The record establishes that the Board had actual knowledge of Ms. Sneed's status in 2008 as an elected public official due to multiple candidate reports she filed with the Board. These reports disclosed that she was unopposed at the primary held on October 20, 2007, for a seat on the Jefferson Parish Council. Includcd among the reports was one for the 2008 calendar year filed on February 6, 2009, three nlonths before the May 15 due date of the Statement, and another filed on May 18, 2009, three days after the due date. Additionally, the Board had actual knowledge of the Statement's due date, since that date was specifically set forth in La. R. 1). 2( 42:124. B)( 1 S. Che basis of the charge against Ms. Sneed was her failure to fiile a Statement as allegedly required by La. R. .42:124. The present situation is not one where S 2. 1 facts were hidden fi ¢ the Board or it was prevented fr discovering the alleged om violation by Ms. Sneed. To the contrary, Ms. Sneed tiled multiple candidate reports with the f3oard disclosing her status as a public official in 2008, including a report filed on May 18, 2009, three days after the due date for the Statement. Moreover, the Board eithei knew or should have known that Ms. Sneed did not file a Statement by May 15, since that information was contained within the Board's own records. Further, in daiming that it did uot discover Ms. Sneed's failure to file the Slalement until February 2010, the Board points to no new information that it obtained in February 2010 that was not already available to it in May 2009. 7 Accordingly, by May 15, 2009, or in no event later than May l 8, 2009, when Ms. Sneed filed yet another candidate report with the Board disclosing }er status in 2008 as a public ofticial, the Board possessed sufficient information within its own records to constitute constructive knowledge that an allcged violation of La. It. . S 42: 124.2 may have occurred due to Ms. Sneed's failure to file a Statement by 1 May 15, 2009. Yet, despile the Board's actual knowledge of both Ms. Sneed's status as a public official and her failure to file a Statement, lhe Board made no futther inquiry into the matter. Considering these circumstances, any failure of the Board to obtain actual knowledge of the alleged violation by Ms. Sneed was due to its own inaction and lack of di1igence. In this respect, it is significant that the administrative rule outlined in LAC 52: 1201( A. the Board's staff to mail I) requires a notice of delinqueilcy within four business days after the due dcrte for any repoet " or statement. of which the staff knows or has reasorz to knoH is due'° and which has not been timely filed. Emphasis added.)This rule illustrates the Board's duty ( ' to act reasonably and with diligence regarding information ascertainable from its own records. Given the totality of actual and constructive knowledge possessed by the Board regarding Ms. Sneed's status as a public ofticial and her failure to fiLe a Statement on tlle due date, the two- ear time limitation for the Board to file an y enforcement action commelced on May 15, 2009, or in no event later than May 18, 2009, due to the Board's constructive knowledge of a potential violation of La. R. . 42:124. Accordingly, the time limitation expired no later than May 18, S 2. 1 201 l, over five months before the Board filed the instant charge against Ms. Sneed on October 28, 201 I. The Adjudicatory Board erred in overruling Ms. Snced's cxceptioi7 of prescription as the charge was untiinely when filcd. Additionally, it should be noted that the Board in brief blatantly misrepresented this Court's holding in Villere u Louisiana Board of Ethics, R 11-309 (La. App. Ist Cir. 3i30/ 2) unpublished),writ denied, 12-963 (La. 1 1 ( 0 12), 3 6/2/ 91 So. d 97. Specifically, the Board incorrectly asserted that t] 2 "[ his Court, in villere v. Louisiana Boarcl of Etlzics determined that the proceedings of the Ethic Board are not penal in nature."First, the discussion in Villere regarding the nature of the Ethics Board proceediigs was not part of the Court's holding and was merely dicta. The discussion was unnecessary to the result reached since the major previously had concluded that the Board established good cause" for its " second requested deposition of Mayor Villere, which was the dispositive issue uidec review. Second, contrary to the Board's assertion, the villere majority never stated that thics Board proceedings were not in nature. penal Rather, the majority opined that such roceedings were not erimiial in naturc. The Board's assertion } ignores the basic fact that penal" and criminal"are not synonymous terms. An " " inquiry into whether a statute is criminal in nature is not the same as an inquiry into whether it is penal in nature. A crime is any conduct so defined by the Criminal Code, by other acts of the legislature, or by the Louisiana Constitution. La. R. . 14: . See also Black's Lcw Dictionarv 402 ( th ed. 2004). However, S 7 8 penal" is a broader term meaning "[ f, o] relating to, or being a penalty or punishment...." Black c at l 168. Therefore, a statute may be penal in nature without also potentially being may criminal. result in the For example, a sLatute is penal if its violation imposition of a civil penalty. See Matter qf Instlation Technologies, Inc., 669 So. d at 1350. See also Doe, 112 So. d at 346 2 3 holding that a provision ofi the election finance law is penal in nature because it is directed to the enforcement of civil prohibitions and the collection of civil peilalties). For the reasons outlined, I concur in the granting of a writ of certiorari and the dismissal with prejudice of the charge filed against Ms. Sneed. 9 BOARD OF ETHICS IN THE MATfER OF NUMBER 2012 CW 1849 JENNIFER SNEED COURT OF APPEAL FIRST CIRCUIT iyL STATE OF LOUISIANA i J BEFORE: KUHN, PETfIGREW, AND McDONALD, JJ. PETTIGREW, J., CONCURS IN THE RESULT, AND ASSIGNS REASONS. I agree with the authoring judge's treatment of the legal issue of the retroactive application of La. R. . 42:124. I disagree with the authoring judge's treatment of S 2. 1 the prescription issue. It is my humble opinion that prescription and/ r peremption o began to run on May 15, 2009, since the Board is the legal and public custodian of the records. I further agree with the ) concurring opinion of udge Kuhn.

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