Opinion
2018 CA 0102 2018 CA 0103 2018 CA 0104
01-16-2019
LOUISIANA BOARD OF ETHICS IN THE MATTER OF CLARENCE SAVOIE, II CONSOLIDATED WITH LOUISIANA BOARD OF ETHICS IN THE MATTER OF C.J. SAVOIE CONSULTING ENGINEERS, INC.
R. Gray Sexton Baton Rouge, LA Samuel J. Accardo, Jr. LaPlace, LA Jennifer L. Jackson Alesia M. Ardoin Baton Rouge, LA Attorneys for Appellants Clarence Savoie, II, et al. Suzanne Mooney Tracy Barker Kathleen Allen Gregory Thibodaux Baton Rouge, LA Attorneys for Appellee Louisiana Board of Ethics Scott E. Frazier Baton Rouge, LA Attorney for American Engineering Companies of Louisiana, Inc.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Ethics Adjudicatory Board State of Louisiana, Division of Administrative Law
No. 2015-14943-ETHICS-B
The Honorable Charles Perrault, Karla Coreil and Joycelyn Elmore Administrative Law Judges, Presiding R. Gray Sexton
Baton Rouge, LA
Samuel J. Accardo, Jr.
LaPlace, LA
Jennifer L. Jackson
Alesia M. Ardoin
Baton Rouge, LA Attorneys for Appellants
Clarence Savoie, II, et al. Suzanne Mooney
Tracy Barker
Kathleen Allen
Gregory Thibodaux
Baton Rouge, LA Attorneys for Appellee
Louisiana Board of Ethics Scott E. Frazier
Baton Rouge, LA Attorney for American Engineering
Companies of Louisiana, Inc. BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
Appellants, C.J. Savoie Consulting Engineers, Inc. and Clarence Savoie, II, challenge the Louisiana Ethics Adjudicatory Board's denial of their motion for summary judgment wherein appellants sought a ruling that they are not public employees subject to the proscriptions of the Code of Governmental Ethics. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
In 2010, C.J. Savoie Consulting Engineers, Inc. and its owner, Clarence Savoie, II (sometimes collectively referred to as "Savoie) and St. John the Baptist Parish (Parish) entered into a "Contract for Professional Engineering Services" (Engineering Contract), pursuant to which Savoie agreed to perform certain professional engineering services for which the Parish agreed to pay $120,960.00 per year for the calendar years 2011 through 2014. The contract was renewed, with Savoie agreeing to perform the same professional engineering services for the calendar years 2015 through 2018 for the sum of $136,080.00 per year.
In November of 2015, the Louisiana Board of Ethics (Ethics Board) charged Savoie with violating various provisions of the Code of Governmental Ethics (Ethics Code), La. R.S. 42:1101 et. seq. In the charges, the Ethics Board alleged that Savoie is a "public employee" subject to the proscriptions of the Ethics Code as that term is defined in La. R.S. 42:1102(18) by virtue of the fact that it is engaged in the performance of a governmental function, through Mr. Savoie, and is under the supervision or authority of an elected official or another employee of the Parish pursuant to the Engineering Contract. The Ethics Board alleged that during the time that Savoie was providing professional engineering services to the Parish pursuant to the Engineering Contract, it also rendered engineering services on a host of Parish projects for which it was compensated. Specifically, the Ethics Board charged Savoie with violating La. R.S. 42:1112A, which provides generally that no public servant shall participate in a transaction in which he has a personal substantial economic interest. The Ethics Board alleged that Savoie violated this provision by participating, through Mr. Savoie, pursuant to the Engineering Contract, in transactions involving the Parish in which Savoie had a substantial economic interest. The charges identified ten specific Parish projects on which Savoie allegedly rendered services as Parish Engineer at a time when it provided professional engineering services outside of the Engineering Contract. Savoie was also charged by the Ethics Board with violating La. R.S. 42:1113A, which provides that no public servant (with certain exceptions) shall bid or enter into any contract, subcontract, or other transaction that is under the supervision or jurisdiction of the agency of the public servant. The Ethics Board alleged that Savoie violated this provision by entering into contracts or transactions with the Parish on behalf of the engineering firm to provide professional engineering services on six specific projects at a time when Mr. Savoie served as Parish Engineer, through Savoie Engineers, pursuant to the Engineering Contract.
On October 24, 2016, the Ethics Board filed an additional charge based on Savoie's alleged receipt of additional compensation to which it was not entitled for the performance of its job duties as set forth in the Engineering Contract. The November 2015 charges and the October 24, 2016 charges were consolidated in the EAB proceedings by orders issued on January 19, 2016 and December 6, 2016.
On June 15, 2016, Savoie filed a motion for summary judgment in which it argued that the Ethics Board did not have jurisdiction over it because it is not a public employee subject to the Ethics Code. Savoie insisted that the Ethics Board could not meet its burden of proving by clear and convincing evidence that Savoie is a public employee as that term is defined in the Ethics Code and the jurisprudence construing it. Savoie maintained that it is a private, independent contractor, who was not engaged in the performance of a governmental function that the law requires the Parish to perform for the public's benefit, and further, it did not provide any services that were under the supervision or authority of any Parish elected official or employee. Essentially, Savoie urged that it did not become a public employee while serving as the Parish's engineering consultant. In support of the motion for summary judgment, Savoie attached nine exhibits to its motion, including the Engineering Contract, the Parish's Home Rule Charter, and seven affidavits.
On June 27, 2016, the Ethics Board filed a memorandum in opposition to the motion for summary judgment, submitting seventeen exhibits in support thereof, including: Savoie's Articles of Incorporation; the 2010 and 2014 Engineering Contracts; a contract for professional program management services for 2008 Bond Issue Improvements executed between the Parish and Savoie; the Parish's responses to the Ethics Board's discovery requests accompanied by two affidavits of its custodian; correspondence from Savoie to Parish officials regarding Parish projects; the Parish Home Rule Charter; and a website document setting forth the duties of the Parish's Public Works Department. Exhibit 17 is the affidavit of Aaron Brooks, the Ethics Board's Director of Investigation, who attested that he participated in the Ethics Board's investigation of Savoie. Attached to the affidavit are partial transcripts of taped recordings of interviews with Mr. Brooks, the Parish's President, the former Director of Utilities, and Mr. Savoie.
On July 11, 2016, Savoie filed a motion to strike the Ethics Board's Exhibit 17. A hearing on the motion to strike and the motion for summary judgment was heard by the Ethics Adjudicatory Board (EAB) on August 4, 2016. At that time, Savoie objected to all of the Ethics Board's exhibits submitted in opposition to the motion for summary judgment. The EAB, noting that it was required to follow the Code of Civil Procedure's rules with respect to summary judgment procedure, observed that the time limitations for replying to the motion to strike the filing of objections to the exhibits set forth in La. C.C.P. art. 966B(3) had not been followed by either side. The EAB stated that it was considering the documents to which no objection was made pursuant to La. C.C.P. art. 966D(2) and that it would consider all of Savoie's nine exhibits. It further ruled that it would consider the Ethics Board's exhibits numbered 1, 2, 3, 4, 5, 8, and 12, but disallowed the Ethics Board's exhibits numbered 6, 7, 9, 10, 11, 13, 14, 15, and 16. Additionally, the EAB granted Savoie's motion to strike Exhibit 17. Both sides noted their objections for the record.
Following the parties' arguments, the EAB took Savoie's motion for summary judgment under advisement. Thereafter, the EAB issued an order denying the motion, concluding that there were genuine issues of material fact as to whether Savoie is a public employee as that term defined in La. R.S. 42:1102(18).
In support of its ruling, the EAB stated that the Engineering Contract required Savoie to provide professional services that include but are not limited to: (1) preparing the scope of work for all engineering projects as requested for the purpose of allowing design engineering firms to submit professional qualification proposals for design of said Parish projects; (2) evaluating fees charged by other engineering firms prior to execution of any additional engineering contracts; (3) evaluating proposals submitted by engineering firms; (4) assisting the Parish in evaluating pump requirements, hydraulics, engineering calculations, etc.; (5) investigating any problems with the many sewer lift stations throughout the Parish and making improvement recommendations as well as being in an advisory capacity should a failure occur with a pump or an operational panel board; (6) preparing cost estimates on in-house projects for budgeting purposes; and (7) monitoring all construction projects in progress, reviewing modifications in construction, change orders, types of materials used, etc. as an agent for the Parish. The EAB concluded that the seven listed job duties raise genuine issues of material fact as to whether Savoie provided services that the Parish was required by law to provide for the benefit of the public, whether Savoie provided professional engineering services under the supervision or authority of elected officials and/or employees of the Parish, and whether Savoie performed governmental functions that the Public Bid Law required the Parish to perform for the benefit of the public. Thus, the EAB concluded there are genuine issues of material fact as to whether Savoie is a public employee as defined by La. R.S. 42:1102(18) of the Ethics Code.
Savoie appealed, asserting that the EAB erred as a matter of law when it held that the Ethics Board's conclusory arguments contradicted Savoie's affidavit evidence that: (1) certain services provided by Savoie to the Parish are not governmental functions that the Parish is required by law to provide for the benefit of the public; (2) Savoie did not provide professional engineering services under the supervision or authority of elected officials or other employees of the Parish; and (3) Savoie did not perform governmental functions that the Public Bid law requires the Parish to perform for the benefit of the public. In its last assignment of error, Savoie urges that the EAB erred as a matter of law when it held that the Public Bid Law requires the Parish to perform governmental functions for the benefit of the public.
Savoie initially sought supervisory review with this court of the denial of its motion for summary judgment. In Board of Ethics in the Matter of Savoie, 2017-0077 (La. App. 1 Cir. 8/7/17), 224 So.3d 1246, 1251 (per curiam), this court held that the Ethics Code gave Savoie a right to appellate review of the denial of the motion and granted the writ for the limited purpose of remanding the matter to the EAB with instructions to grant Savoie an appeal pursuant to its notice of intent to apply for writs of certiorari. Id. We are bound to follow this ruling. We note that an order of appeal was issued by the EAB on August 10, 2017.
SUMMARY JUDGMENT
In a recent decision, the Louisiana Supreme Court held that articles 966 and 967 of the Louisiana Code of Civil Procedure, governing summary judgments, apply to proceedings before the EAB. Board of Ethics in the Matter of Monsour, 2017-1274 (La. 5/1/18, 249 So.3d 808, 810 (per curiam). The Court ruled that evidence produced in connection with the motions for summary judgment in administrative proceedings before the EAB must conform to the same requirements applicable to civil proceedings. Id. at 809.
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966A(3). In determining whether summary judgment is appropriate, this court will review the evidence de novo using the same criteria governing the EAB's determination of whether summary judgment is appropriate. Louisiana Board of Ethics In re Fontenot, 2014-0337 (La. App. 1 Cir. 12/30/14), 2014 WL 7455199 *1 (unpublished); Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 2017-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 444, writ denied, 2018-0583 (La. 6/1/18), 243 So.3d 1062.
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden does not require him to negate all essential claims of the adverse party's claim, but rather, to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966D(1). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Thompson, 224 So.2d at 445.
A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the legal outcome of the dispute. Id. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. A genuine issue is one as to which reasonable persons could disagree. If reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.
In this case, the Ethics Board has charged that Savoie violated provisions of the Ethics Code which prohibit a public employee from engaging in certain transactions. Whether Savoie is a public employee to whom the Ethic Code's proscriptions apply is a threshold issue that must be resolved by the EAB before it can determine whether Savoie committed the charged offenses. Clearly, the Ethics Board will bear the burden of proving that Savoie is a public employee subject to the provisions of the Ethics Code. Because Savoie will not have the burden of proving this threshold issue at the adjudicatory hearing before the EAB, Savoie's burden on the motion for summary judgment was to point out the absence of factual support for the Ethics Board's claim that Savoie is a public employee as that term is defined in La. R.S. 42:1102(18) of the Ethics Code.
Pursuant to La. R.S. 42:1141.5C, the charges levied by the Ethics Board must be supported by clear and convincing evidence.
Pursuant to La. R.S. 42:1102(19), the term "public servant" means a public employee or an elected official. Pertinent to this case, Louisiana Revised Statute 42:1102(18) defines the term "public employee" to mean any person, whether compensated or not, who is:
(iii) Engaged in the performance of a governmental function [or]The provision specifically exempts two categories of persons from the definition of the term "public employee": (1) a person who is in periodic duty in the National Guard; and (2) a person under a contract to provide attest services as a certified public accountant. La. R.S. 42:1102(18)(b)(i)(ii).
(iv) Under the supervision or authority of an elected official or another employee of the governmental entity.
The Ethics Code defines the term "public employee" to include any person engaged in the performance of a governmental function. The term "governmental function" is not defined in the Ethics Code; however, several cases have provided guidance on the meaning of that term. In Commission on Ethics for Public Employees v. IT Corporation, 423 So.2d 695 (La. App. 1 Cir. 1982), this court was asked to determine whether IT Corporation was a state employee to whom the Ethics Code applied, which at that time defined the term "state employee" to include "any one" who is "[e]ngaged in the performance of a state function under authority of the laws of this state...." Id. at 700. This court held that the term "any one" included private corporations as well as individuals, and thus, private corporations could be subject to the jurisdiction of the Commission on Ethics for Public Employees. This court observed that while the then applicable Ethics Code did not define the term "state function," a private corporation's execution of a contract with the Department of Natural Resources to conduct a feasibility study for a hazardous waste disposal facility constituted the "performance of a state function under the authority of the laws of this state," thereby subjecting IT Corporation to the jurisdiction of the Commission on Ethics for Public Employees. IT Corporation, 423 So.2d at 700. This court reasoned that conducting a feasibility study for a hazardous waste disposal facility fell well within the function of the State to protect and preserve the public health and welfare. Id. Additionally, this court also held that a research group, which was under contract with the Department of Natural Resources to manage several significant aspects of the Department's hazardous waste program, was performing a state function and also was a state employee with the meaning of the Ethics laws. Id. at 701.
Later, in Fontenot, 2014 WL 7455199 *5, this court distinguished IT Corporation and upheld a summary judgment granted by the EAB finding that, as a matter of law, an insurance firm and its owner who contracted with Jefferson Parish to provide insurance consulting services for the Parish in a private contractor capacity were not public employees subject to the Ethics Code. Id. At the outset, this court observed that the term "governmental function" is not defined in the Ethics Code; however, the IT Corporation case did provide guidance on the meaning of that term when it found that a private corporation responsible for providing a specific and statutorily mandated governmental function legislatively assigned to a state agency was engaged in the performance of a governmental function. Id. at *4. In addressing the propriety of the EAB's granting of the motion for summary judgment, this court looked at Jefferson Parish's Code of Ordinances, which listed sixteen "core functions" that Jefferson Parish provides to the public, among them levying and collecting property taxes, enacting plans for development and zoning, maintaining roads, controlling traffic, and providing law enforcement services. Id. at *5. However, providing insurance benefits for Jefferson Parish employees was not listed among Jefferson Parish's sixteen core functions. This court pointed out that an affidavit of the Parish's human resources director established that neither he nor any of the department's employees were responsible for providing insurance brokerage and placement of insurance services. Rather, Jefferson Parish utilized outside services and recommendations of an insurance consultant to broker and place employee and retiree insurance, which services included evaluating and selecting insurance proposals from qualified insurance providers. This court found that under those circumstances, as a matter of law, the insurance consultants were not performing a specific and statutorily mandated governmental function and hence were not public employees subject to the Ethics Code. Id.
In light of the substantive law outlined above, we now examine the evidence submitted by the parties in support of and in opposition to the motion for summary judgment. In support of its claim that the Ethic's Board cannot establish that Savoie is a public employee to whom the Ethics Code applies, Savoie submitted the following evidence: (1) The Engineering Contract executed on "December 7th" between Savoie and the Parish; (2) the Parish's Home Rule Charter; (3) the affidavit of Mr. Savoie, and (4) the affidavits of various Parish officials who worked for the Parish at different times.
In opposition to the motion for summary judgment, the Ethics Board submitted seventeen exhibits, seven of which were considered by the EAB. The evidence ruled admissible by the EAB includes: (1) Savoie's articles of incorporation; (2) an Engineering Contract, signed by the Parish and Savoie on "December 7th", along with a letter to the Parish President dated December 3, 2010, whereby the Parish Council advised that it had voted to renew the Parish Engineering contract, and an Engineering Contract executed by the Parish and Savoie on December 31, 2014; (3) a Contract for Professional Program Management Services for the Parish regarding 2009 Bond Issue Improvements entered into by Savoie and the Parish in March of 2010; (4) the Parish's responses to the Ethic Board's discovery requests and affidavits of the Parish's Director of Purchasing/Procurement, the custodian of the documents, attesting that the documents were complete, researched, unaltered, and to the best of her knowledge, the documents were true and correct; (5) a 2008 Standard Form Agreement in which the Parish engaged Savoie to complete the design and supervision of an expansion at the Lions Water Plant; (6) a 2012 Standard Form Agreement in which the Parish retained Savoie to prepare plans and bid documents for the rehabilitation of twelve sewer lift stations following Hurricane Isaac damage; and (7) a 2014 Standard Form Agreement in which the Parish engaged Savoie to serve as Engineer on a contract for the Lions Water Treatment Plant.
Paragraph II of the 2010 and 2014 Engineering Contracts sets forth the "Scope of Services" the Parish engaged Savoie to perform. Generally, these services include:
1) Preparing scope of the work for all engineering projects as requested for the purpose of allowing design engineering firms to submit professional qualification proposals for design of Parish projects;
2) Evaluating fees charged by other engineering firms prior to the execution of any additional engineering contracts;
3) Evaluating proposals submitted by engineering firms;
4) Assisting the Parish as an expert witness in litigation;
5) Assisting the Utilities Departments with remaining problems relative to Parish-wide sewerage and the Parish water treatment plants and distribution systems;
6) Preparing necessary documents, when requested, for minor utility relocations resulting from highway construction;
7) Assisting the Parish in evaluating pump requirements, hydraulics, engineering calculations, etc.; investigating any problems with the many sewer lift stations throughout the Parish and making improvement recommendations as well as being in an advisory capacity should a failure occur with a pump or an operational board panel;
8) Preparing applications for permits for minor drainage projects, recreational projects such as boat launches, and other permits that are required for Parish Projects (i.e., State right-of-way permits);
9) Assisting the Parish in development and implementation of a Solid Waste program, not including preparation of plans and specifications;
10) Assisting the Parish in direction for miscellaneous projects that Parish personnel perform;
11) Assisting the Parish in developing proper methods and procedures for street and road maintenance repairs as needed;
12) Being available in the Parish a minimum of eight hours per week to respond to engineering problems and inspect various site locations as required;
13) Attending Council meetings and Committee meetings when requested by either the Council or Administration;
14) Preparing written monthly reports and recommendations on Parish projects that are being constructed in the Parish;
15) Assisting the Public Utilities Director and the Public Works Director on in-house engineering matters;
16) Preparing cost estimates on in-house projects for budgeting purposes;
17) Monitoring all construction projects in progress; reviewing all modifications in construction, change orders, types of materials used, ect., in the posture of being an agent and second opinion to the Parish. Such monitoring does not assume the design or inspection responsibilities for projects designed by other engineering consultants; and
18) Preparing, annually, specifications and minimum sets of plans for each street or road proposed by the Parish Public Works Department for reconstruction; the fee for completion of this survey and design work shall be 9 percent of actual construction costs and these fees are separate and apart from the contracted monthly lump sum fee as stated in Section V, Compensation of This Contract.
The Parish's Home Rule Charter vests the Parish Council with all legislative power in the Parish. Article II of the Home Rule Charter provides that:
Except as otherwise provided by this Charter, St. John the Baptist Parish shall continue to have all powers, functions, rights, privileges, immunities, and authority previously possessed under the laws of the state. The parish shall have and exercise such other powers, rights, privileges, immunities, authority and functions not inconsistent with this Charter as may be conferred on or granted to a local governmental subdivision by the State Constitution and the laws of the state. The parish is hereby granted the right and authority to exercise any power and perform any function necessary, requisite, or proper for the management of its affairs, not denied by this Charter or general law, or inconsistent with the Constitution. The parish shall have the right and authority to exercise general police power.The Home Rule Charter vests the Parish Council with the power to enact any ordinance necessary, requisite, or proper to promote, protect, and preserve the general welfare, safety, health, peace, and good order of the Parish. Article III, Section A, Paragraph 7 of the Home Rule Charter lists the specific powers and duties of the Parish Council, to include the power to: (1) levy and collect taxes; (2) make appropriations; (3) establish, merge, reorganize, consolidate and/or abolish special districts within which may be provided fire protection, recreation, police protection, water, streets, drainage, sidewalks, street lighting, waste and garbage collection and disposal, sewerage disposal systems, and other similar facilities and services; and (4) perform any other acts consistent with state law deemed to be in the best interest of the people of the Parish.
In his affidavit, Mr. Savoie attested that Savoie specializes in designing civil public utilities projects, including collections lines, force mains, lift stations, treatment plants, and water plants, and has experience in public works projects such as roads, bridges, and bulkheads. He also made the following attestations: For more than 29 years, Savoie has rendered engineering services, on an independent professional consultant basis, to the Parish. All of Savoie's engineering services have been provided as an independent contractor; Savoie has always been responsible for all aspects of its professional engagements, with the firm always providing all staffing, offices, equipment, liability and workers' compensation insurance, computers, materials, vehicles and all other aspects of a professional consulting firm. Mr. Savoie further attested that:
1) Neither he nor the firm has ever been under the "supervision" or "jurisdiction" of any government employee. No one has ever "directed," reviewed or supervised the qualitative aspects of Savoie's consulting services;
2) The firm has a general consulting contract with the Parish which specifies hourly billing rates. The firm invoices the Parish
monthly for engineering services as are assigned by the Utilities Department and the Council. The Engineering Contract contains a provision that also allows the Parish to engage Savoie for specific, out-sourced designed projects. The Parish has on numerous occasions selected Savoie as the design engineer on those projects, for which Savoie is paid an agreed fee;
3) No governmental power was ever delegated to Savoie by Parish officials or departments, particularly the Utilities Department;
4) Savoie was never considered a public servant or public employee for any purpose. Instead, Savoie has always functioned as a completely independent professional consultant and contractor;
5) Savoie did not use the Engineering Contract as a vehicle to obtain additional outsourced project-specific design work. Savoie never participated in any transactions or made any recommendations that would have led to securing additional design services;
6) None of the services provided by Savoie were ever considered to be for the benefit of the public. To the contrary, these services were provided to the staff of the Parish government, including particularly, the Utilities Department. The design and other engineering work that was provided by the firm was then used for the purpose of contracting out for the performance and construction of designed utilities projects including sewer, water, natural gas, and some public works projects including roads and bridges;
7) Savoie has never been the sole source for the procurement of design services by the Parish. Numerous other firms have provided engineering services on a fee basis, as has Savoie. Other services are also out-sourced, including mosquito abatement, solid waste collection, trash, and refuse collection, accounting, and on occasion, outsourced legal services; and
8) Savoie has never been considered a "public servant" by anyone associated with the Parish. To the best of Savoie's knowledge, there is no, nor has there been, any position or post created on any organization chart, or budget for a post or position of "Parish Engineer."
The second affidavit submitted by Savoie is that of Pat McTopy, who served as the Director of Public Utilities from 1984 through January 2008 and the Chief Administrative Officer for the Parish from 1992 through 2000. Mr. McTopy left public service until 2008, when he returned to the Parish as the Chief Administrative Officer and later acting Parish President until his retirement in 2011. During his tenure, Mr. McTopy was involved in the outsourcing of engineering, design, and other professional services. He made the following attestations:
1) As early as 1984, Savoie provided engineering services to the Parish; Savoie had a general engineering services contract and performed work, as assigned, and invoiced monthly for the services on an hourly fee scale that had been previously confected. The work assigned generally consisted of small projects which were not practical for separate design service contracts; Savoie also made recommendations on things such as subdivision applications and commercial building permits;
2) Later, as individual design projects developed, the Parish outsourced certain design projects to Savoie under a separate engineering contract;
3) All of Savoie's services were provided on an independent contractor basis;
4) Neither he, nor any of the Public Works Departments or other Parish employees or officials were responsible for: a) reviewing engineering plans and specifications submitted by third parties to the Parish for the purposes of verifying engineering calculations; (b) assisting the Parish as an expert witness in litigation; (c) preparing necessary documents for minor utility relocations resulting from highway construction; (d) assisting the Parish in evaluating pump requirements, hydraulics, engineering calculations, etc.; (e) assisting the Parish in designing plans and specifications for developing proper methods and procedures for street and road maintenance repairs let out for public bid; or (f) preparing annual specifications and minimal sets of plans for each street or road proposed for construction in the Parish;
5) During his entire tenure with the Parish, the Parish always utilized the outside services of engineering consultants to provide the services outlined in Paragraph 4 above, and the required expertise to provide those services was not provided or available in-house through the Public Works Department or the Utilities Department;
6) Since 1992, and as early as 1984, the Parish has contracted with Savoie to provide the services outlined in Paragraph 4;
7) Savoie did not provide the consulting services under the supervision or authority of any Parish elected official or employee, but rather, provided the services in accordance with the contract and by Savoie's own independent methodology; he has no reason to believe Savoie provided its consulting services under the supervision or authority of any Parish elected official or employee;
8) Although the Parish Council, President, Chief Administrative Officer, and directors of various departments had authority to assign work under the contract, none of these persons had any supervision or authority over how, where, and when Savoie performed its services;
9) Savoie has a general services professional consulting contract with the Parish which specified hourly billing rates. Savoie invoices the Parish monthly for engineering services as are assigned by various departments and the council. The Parish has occasionally selected Savoie as the design engineer on specific utilities, public works, and
other parish projects, for which Savoie is paid an agreed fee. To his knowledge, Savoie has never used its general contract to solicit or achieve any additional parish work;Savoie also submitted the affidavits of: (1) Arnold J. Labot, the Parish President from 1984 until 1988 and again from 1992 to 2000, and who also served as the Director of Public Works and Utilities on occasion; (2) Ralph Bean, the Parish's Director of Utilities from 2003 to 2009; (3) Samuel J. Accardo, Sr., the Parish's Utilities Director from 1992 to 2000; (4) Jeff Perrilloux, the Assistant District Attorney who served as legal counsel to the Parish since 2001; and (5) Michael Wright, who has been an elected member of the Parish Council since 2012. These affidavits contain attestations that are similar in substance to the attestations made by Mr. McTopy and outlined above.
10) Savoie performed all of its services with Savoie employees, programs, equipment, and performed services under the contract in a manner determined solely by Savoie;
11) No power or authority to act on the Parish's behalf was ever delegated to Savoie by the Parish Council, President, Chief Administrative Officer, or directors of the various Parish Departments, including the Public Works Department and the Utilities Department;
12) Savoie was never considered a public servant or public employee for any purpose. Savoie always functioned as a completely independent professional consultant and contractor, and was responsible for all of its personnel, equipment, vehicles, and other "tools of the trade" necessary to enable Savoie to provide the described consulting engineering services. Savoie employees were never considered as W-2 employees, they were never provided Parish equipment such as an automobile, computer, cell phone, or other equipment, and none of them were ever included in any retirement plan, 401K plan, group benefits plan, or other emoluments of public service;
13) Savoie never used the general services contract as a vehicle to obtain additional outsourced project-specific design work. Savoie never made any recommendations that would have led to its securing of additional design services. Based on their knowledge of government regulations and communications with regulatory agencies, employees and representatives of the Parish knew what additional engineering work was needed and those decisions were made without initial involvement with Savoie;
14) The design and other engineering work that was provided by Savoie was used for the purpose of contracting out for the performance of designated public works projects, including utilities, sewer, water, natural gas, roads, and bridges;
15) All engineering services, design, and architectural services have always been the subject of outsourcing; the Parish has never maintained, nor attempted to maintain, in house capabilities for all significant design, engineering, and architectural projects. These services have always been the subject of independent fee professional services contracts and numerous engineering firms in addition to Savoie have provided design work;
16) The Parish has had other professional services contracts including mosquito abatement, solid waste collection, trash and refuse collection, accounting, and on occasion, outsourced legal services. None of these services were performed by businesses or individuals that have been considered "employees" or "public servants" of the Parish.
We note that these affidavits contain conclusory attestations that Savoie is not a public employee or public servant, the threshold issue before the EAB. Because they are conclusory in nature and are not subject to cross-examination, these affidavits are of little evidentiary value to an adjudicatory body in deciding whether, in this fact-intensive case, Savoie is not a public employee as a matter of law.
Additional evidence admitted by the EAB in opposition to the motion for summary judgment includes the Parish's responses to discovery requests propounded by the Ethics Board in which the Parish acknowledged that Savoie did receive work for the 2009 Bond issue, sewer lift stations, and established a pool of firms of approved firms for hurricane recovery project. The Parish also detailed Savoie's work on ten specific projects, which included, with respect to some of the projects, preparing bid documents, reviewing bid specifications, and making recommendations on bid awards. Exhibit 3 is a 2010 Contract for Professional Management Services executed between the Parish and Savoie in which Savoie agreed to serve as Program Manager for the Parish approved Bond Issue's proposed improvement specified projects relative to levee and drainage, traffic and recreation improvements. In the contract, Savoie agreed to provide services including, among other things: (1) preparing a scope of the work for all engineering projects for the Parish engineering firms selected to complete the various projects; (2) assisting in the selection of engineering firms for each project; (3) evaluating fees charged by the selected engineering firms; (4) coordinating with the Parish Administration to insure all state regulatory compliance requirements were being followed; (5) acting as coordinator for the owner and staff for all owner retained professional design consultants; (6) making recommendations concerning the work of professional design consultants to the owner; and (7) assisting the owner in reviewing and negotiating any and all contract claims for additional compensation from design professionals. Exhibit 5 is Savoie's contract with the Parish to complete the design and supervision of an expansion at the Parish's Water Plant, in which Savoie agreed to provide professional engineering services to the Parish for all phases of the project, including: serving as the professional engineering representative for the Parish; providing professional engineering consultation and advice and furnishing customary civil, structural, mechanical, and electrical engineering services; determining the general scope, extent, and character of the project in consultation with the owner; assisting the Parish in advertising for and obtaining bids or negotiating proposals for each separate prime contract; consulting and advising the Parish as to the acceptability of subcontractors; and assisting the Parish in evaluating bids or proposals and in assembling and awarding contracts for construction, materials, equipment, and services.
The final exhibits ruled admissible by the EAB include Exhibit 8 and Exhibit 12. Exhibit 8 is a 2012 contract for the rehabilitation of twelve sewer stations entered into by the Parish to engage the services of Savoie to prepare plans, specifications, and bid documents for the project. Exhibit 12 is a 2014 standard form agreement between the Parish and Savoie with respect to a water treatment plant project requiring Savoie, among other things, to: prepare all plans and specifications for the project; assist the Parish in advertising for and obtaining bids or proposals; assist in the evaluation of the bids; and act as the Parish's representative in the construction phase of the project.
Having outlined the evidence on the motion for summary judgment, we now consider the parties' arguments in support of and in opposition to the motion. Savoie argues that it is a private person rendering consulting services as an independent contractor to the Parish. It submits that this court has already held in Fontenot that independent contractors do not become public employees subject to the Board of Ethic's jurisdiction merely because they provide consulting services to governmental agencies. Savoie claims that in Fontenot, this court held that independent contractors can become employees subject to the Board of Ethic's jurisdiction only under narrow circumstances, which are absent here, when the independent contractors are: (1) engaged to perform a core governmental function that the government agency is required to perform for the benefit of the public; or (2) providing contractual services under the supervision or authority of a particular elected official or public employee, as opposed to simply being under the supervision or authority of the governmental entity. Savoie contends that none of the exhibits introduced by the Ethics Board at the hearing on the motion for summary judgment created any disputed issues of material fact or supported the Ethics Board's argument that there were disputed issues of fact. More importantly, Savoie argues, none of the exhibits submitted by the Ethics Board contradicted the litany of facts established in Savoie's sworn affidavits, namely, that Savoie did not perform any governmental functions that the Parish is required to provide for the benefit of the public, and Savoie did not perform any services under the supervision or authority of a Parish elected official or other employee.
Savoie points out that there are material facts that the parties do not dispute: Savoie had a contract with the Parish; the parties agreed that Savoie performed certain services under the contract; and the parties agreed that Savoie performed certain services for the Parish under separate agreements between Savoie and the Parish. Savoie urges that what the parties do dispute is the application of those undisputed facts to the substantive law established by this court in Fontenot. It insists that this court should follow Fontenot and hold that providing professional engineering services to the Parish is not one of the core functions that the Parish's Home Rule Charter requires the Parish to perform for the benefit of the public.
Savoie asserts that Engineering Contract, far from raising a disputed issue of material fact as to whether Savoie was performing a governmental function the Parish was required by law to provide for the benefit of the public, establishes that the services Savoie was contracted to perform were not governmental functions assigned by the Parish to Savoie. Rather, Savoie maintains, the services it provided were indirect support to the Parish's governing body, departments, and employees. Savoie contends that, just as in Fontenot, its unchallenged affidavit evidence establishes that the services set forth in the Engineering Contract have been contracted out by the Parish to companies that are engineering experts and more qualified to provide engineering services to Parish employees. It points to language in the affidavits indicating that the Parish has never maintained or attempted to maintain in-house capabilities for all significant design, engineering, and architectural projects. To the contrary, these services have always been the subject of independent contractor professional service contracts. Savoie asks this court to find, in line with Fontenot, that Savoie was not performing a "statutorily-mandated governmental function" that the Parish is required by law to provide for the benefit of the public.
The Ethics Board submits that as Parish Engineer, Savoie was integrally involved in water, sewerage, and street projects for the Parish, and thus, was performing a governmental function by engaging in the activities set forth in Paragraph II of the Engineering Contract. It argues that the Engineering Contract submitted by Savoie in support of its motion for summary judgment raises a genuine issue of material as to whether Savoie is a public employee; therefore, the burden of proof on the motion for summary judgment never shifted to the Ethics Board. The Ethics Board maintains that its exhibits demonstrate that Savoie was also performing functions that the Parish is required to perform in accordance with the Public Bid Law, which is clearly intended to benefit the public. It further argues that the evidence shows that that Savoie performed its contractual duties under the supervision and authority of Parish employees and officials.
The American Council of Engineering Companies of Louisiana, Inc. (ACECL), which represents thousands of engineers in the State of Louisiana, filed an Amicus Curiae brief in which it argues that the term "governmental function" has only been applied by courts in instances in which an independent contractor is providing governmentally mandated public services directly to the public. ACECL claims that where the services are provided directly to the governmental entity, there is no exercise of core function, even if the services indirectly benefit the public. It maintains that there is no legal basis or precedent for applying the term "governmental function" to an independent contractor who designs and/or constructs facilities for a public entity, which then owns and operates the facilities for the benefit of the public. ACECL argues that such design and construction services do not involve the provision of government services directly to the public, and thus, do not constitute the exercise of a "core function" of government. ACECL submits that it is only when a contractor is "literally clothed with the sovereign power to act directly upon the public (i.e., takes the place of government) that [it] can be exercising a governmental function."
We decline to read the term "governmental function" so narrowly. The determination of whether a particular contractor has, by its actions, crossed the line between serving solely as a professional consultant to a governmental body on a matter that is not a core function of a governmental body, as was the case in Fontenot, and is instead performing a governmental function, must be made on a case by case basis. Making this determination requires an adjudicatory body to decide which factors militate in favor of finding private contractor has become a public employee subject to the Ethics Code and which factors militate against such a finding. Such a fact-intensive inquiry is inappropriate for resolution by summary judgment except in the clearest of cases, such as that presented to this court in Fontenot.
The phrase in La. R.S. 42:1102(18)(a)(iii) "engaged in the performance of a governmental function" is not defined in the Code of Ethics and its scope is unclear. While courts have attempted to offer a definition in the IT Corporation and Fontenot cases, it may be that the definition is better suited for legislation to further define the scope of the term "governmental function."
The evidence presented in the motion for summary judgment in this case cannot be easily characterized, is subject to differing interpretations, and requires a trial on the merits to be fully developed. Accordingly, after our de novo review of all of the documents submitted in support of and in opposition to the motion for summary judgment, we find that there are genuine issues of material fact and that Savoie was not entitled to judgment as a matter of law. Because the issue of whether Savoie in fact became a public employee for the proposes of the Ethics Code is contested and involves both an interpretation of the facts and applicable law, we are unable to find that Savoie is entitled to summary judgment decreeing that he is not a public employee in accordance with the Ethics Code. Therefore, we find that EAB correctly denied Savoie's motion for summary judgment.
CONCLUSION
For the foregoing reasons, the ruling of the Ethics Adjudicatory Board denying appellants' motion for summary judgment is affirmed. All costs of this appeal are assessed to C J Savoie Consulting Engineers, Inc. and Clarence Savoie, II. This matter is remanded to the Ethics Adjudicatory Board for proceedings consistent with this opinion.
AFFIRMED; REMANDED. CRAIN, J., concurs.
I agree the motion for summary judgment was properly denied, but disagree with issuing a full opinion in this procedural posture. See Board of Ethics in the Matter of Savoie, 17-0077 (La. App. 1 Cir. 8/7/17), 224 So. 3d 1246, 1251 (per curiam). While appealable in accordance with precedent from this court, the ruling is still interlocutory. Material issues of fact are in dispute which preclude summary judgment, but I believe writing beyond that is advisory.