Opinion
2021 CA 0459
04-07-2022
LOUISIANA BOARD OF ETHICS IN THE MATTER OF MICHELLE BARNETT
Kathleen M. Allen Tracy M. Barker LaToya D. Jordan David M. Bordelon Baton Rouge, Louisiana Attorneys for Appellee Louisiana Board of Ethics David A. Lowe Baton Rouge, Louisiana Attorney for Appellant Michelle Barnett
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Ethics Adjudicatory Board Panel B State of Louisiana No. 2015-0662 Edwin L. Hightower, Gregory McDonald, Esther A. Redmann
Kathleen M. Allen Tracy M. Barker LaToya D. Jordan David M. Bordelon Baton Rouge, Louisiana Attorneys for Appellee Louisiana Board of Ethics
David A. Lowe Baton Rouge, Louisiana Attorney for Appellant Michelle Barnett
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
HOLDRIDGE, J.
In this adjudicatory proceeding, Michelle Barnett challenges the Ethics Adjudicatory Board's denial of her motion in limine. Mrs. Barnett was charged by the Board of Ethics with violating the Louisiana Code of Ethics by virtue of her receipt of anything of economic value, for services provided to Magellan Health Services, by her husband, when she was employed by the Louisiana Department of Health and Hospitals (DHH)/Office of Behavioral Health (OBH) and her husband's company had a contractual or other financial relationship with DHH/OBH. In her motion in limine, Mrs. Barnett sought to preclude the Board of Ethics "from asserting, alleging, calling any witness to testify, or offering any evidence into the record asserting that Michelle Barnett's agency was anything other than DHH/OBH" as the Board of Ethics had asserted in the charges. Specifically, Mrs. Barnett objected to the Board of Ethics' reference to her agency as DHH/OBH/BI in the proceedings, after the charges had been filed and discovery had been completed, without specifically amending the charges to reference that she was part of the Business Intelligence Section (BI). In a separately filed motion for summary judgment, Mrs. Barnett claimed that her agency was actually one of two subsections of DHH/OBH/BI, called the Analytics Section, and not DHH/OBH or DHH/OBH/BI. The Ethics Adjudicatory Board denied the motion in limine and the motion for summary judgment.
Although Mrs. Barnett initially filed applications for supervisory writs with this court to challenge both rulings, another panel of this court ruled that the Ethics Adjudicatory Board's August 25, 2020 judgment denying the motion in limine and the August 21, 2020 judgment denying the motion for summary judgment are appealable judgments. The matters were remanded to Ethics Adjudicatory Board to grant Mrs. Barnett an appeal from those judgments. Board of Ethics In the Matter of Michelle Barnett, 2020-0990 c/w 2020-1022 (La.App. 1st Cir. 12/21/20)(unpublished writ action).
We pretermit discussion of whether this court's decision in Board of Ethics in Matter of Savoie, 2017-0077 (La.App. 1st Cir. 8/7/17), 224 So.3d 1246, which permitted an appeal of a denial of a motion for summary judgment by the Ethics Adjudicatory Board, extends to all interlocutory rulings by that administrative body.
Generally, a trial court is granted broad discretion in its evidentiary rulings, including a motion in limine, and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Barnett v. Woodburn, 2020-0675 (La.App. 1st Cir. 4/16/21), 324 So.3d 641, 646; Bristol v. Gonzales Police Department, 2017-0675, 2017-0676, 2017-0677 (La.App. 1st Cir. 12/21/17), 240 So.3d 232, 243, writ denied, 2018-0146 (La. 3/23/18), 239 So.3d 296. We have examined the record in this case and conclude that the trial court did not abuse its broad discretion in denying Mrs. Barnett's motion in limine.
Accordingly, the judgment appealed from is affirmed. The case is remanded to the Ethics Adjudicatory Board to conduct proceedings consistent with this opinion. All costs of this appeal are assessed to appellant, Michelle Barnett.
AFFIRMED AND REMANDED.
CHUTZ, J., concurring.
In conformity with this court's holding in Board of Ethics in the Matter of Savoie, 2017-0077 (La.App. 1st Cir. 8/7/17), 224 So.3d 1246, 1250 (per curiam), under the present version of the method of review created by the Louisiana legislature, I believe the grant of immediate appeals from all interlocutory rulings rendered by the Louisiana Ethics Adjudicatory Board (EAB) is required.
I do not pass scrutiny on whether an immediate appellate review of interlocutory rulings hinders the ability of the EAB to perform the adjudicatory functions delegated to it by the Louisiana legislature and, as such, raises constitutional separation of powers issues. See Metro Riverboat Associates, Inc. v. Louisiana Gaming Board, 2001-0185 (La. 10/16/2001), 797 So.2d 656, 661.1 note, however, that a suggestion that an immediate review may be afforded under the Louisiana Administrative Procedures Act (APA) similar to that undertaken by the Metro Riverboat Associates court in its review of the jurisdiction granted to the district court under the Louisiana Gaming Control is without merit. While La. R.S. 49:964 of the APA allows for immediate judicial review of a "preliminary, procedural, or intermediate agency action or ruling ... if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury," such filings are commenced and heard in the district court. La. R.S. 49:964 provides no direct recourse to the court of appeal. Further, La. R.S. 49:964(G)(6) requires the district court to "make its own determination and conclusions of fact by a preponderance of evidence." This standard is inapposite to the requirement on summary judgment that there be "no genuine issue as to material fact" before such judgment can be rendered. See La. C.C.P. art. 966(A)(3). Savoie, 224 So.3d at 1250.
The Louisiana Constitution establishes the authority for the Code of Governmental Ethics. Article X, § 21 states:
The legislature shall enact a code of ethics for all officials and employees of the state and its political subdivisions. The code shall be administered by one or more boards created by the legislature with qualifications, terms of office, duties, and powers provided by law. Decisions of a board shall be appealable, and the legislature shall provide the method of appeal." [Emphasis added.]
The system of review set forth in La. R.S. 42:1142 of "[d]ecisions of a board" administering a code of ethics as established in La. Const. Art. X, §21, appears to fall within the ambit of the grant of power bestowed on the legislature to provide "a method of appeal." Therefore, the plain language of La. R.S. 42:1142A(1), setting forth a right of appeal to a public servant or person who is aggrieved by "any action" of the EAB, conforms to La. Const. Art. X, §21. Moreover, La. Const. Art. V, § 10, providing for the appellate jurisdiction of the courts of appeal, expressly prefaces the grant of jurisdiction to instances "[e]xcept as otherwise provided by this constitution."
La. Const. Art. V, § 10(A) states, in pertinent part:
Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of (1) all civil matters, including direct review of administrative agency determinations in worker's compensation matters as heretofore or hereafter provided by law, (2) all matters appealed from family and juvenile courts, and (3) all criminal cases triable by a jury [except when the defendant has been convicted of a capital offense and a penalty of death has been imposed]. It has supervisory jurisdiction over cases which arise within its circuit.
The language "[d]ecisions of the board shall be appealable" in Article X, §21, was intended to allow the legislature to provide for an appeal of any action of an ethics board adverse to the interests of a person. Duplantis v. Louisiana Bd. of Ethics, 2000-1750 (La. 3/23/01), 782 So.2d 582, 597 (Calogero, J., dissenting, citing Official Transcript of the Constitutional Convention State of Louisiana 1973, 48th day, p. 16 (Sept. 15, 1973), reprinted in 7 Records of the Louisiana Constitutional Convention of1973: Convention Transcripts, p. 1276 (La. Const. Conv. Records Comm. 1977)). Thus, the language of La. R.S. 42:1142, allowing an appeal of "any action" by "any public servant or person who is aggrieved," is consistent with the expressed intention of the last sentence of Article X, §21.
In Savoie, 224 So.3d at 1249, this court examined its subject matter jurisdiction sua sponte. The Savoie court looked to the provisions of La. R.S. 42:1142 as the proper authority to govern review of actions taken by the EAB, which state:
A. (1) Whenever action is taken against any public servant or person by order of the Board of Ethics [(BOE)], or panel thereof, or by a final
decision of the [EAB], or by an agency head by order of the [BOE], or panel thereof, or by a final decision of the [EAB], or whenever any public servant or person is aggrieved by any action taken by the [BOE], or panel thereof, or the [EAB], he may appeal to the Court of Appeal, First Circuit. [Emphasis added by the Savoie court.]
Expressly noting that the present version of the statute does not address preliminary, procedural, or intermediate actions, the Savoie court scrutinized the version of La. R.S. 42:1142A that preceded it. See Acts 2008, 1st Ex. Sess. No. 24, § 1, eff. March 14, 2008. That version provided, in pertinent part, as follows:
Subsequently, La. Acts 2008, No. 595, §1, enacted Subsection E of La. R.S. 42:1142, which stated, "A decision of the [EAB] or a panel thereof may be appealed under this Section in the same manner as a decision of the [BOE]." And by La. Acts 2010, No. 1002, §1, eff. July 8, 2010, Subsection E was amended and reenacted to state, "A decision of the [EAB] or a panel thereof is a final decision that may be appealed under this Section in the same manner as a decision of the [BOE] within thirty days after the mailing of the notice of the decision, or if a rehearing is requested, within thirty days after mailing of the decision on the rehearing." Subsection E was subsequently eliminated by La. Acts 2012, No. 607, §1, which is the present version.
A. Whenever action is taken against any public servant or person by the board or panel or by an agency head by order of the board or panel, or whenever any public servant or person is aggrieved by any action taken by the board or panel, he may appeal therefrom to the Court of Appeal, First Circuit, if application to the board is made within thirty days after the decision of the board becomes final. Any refusal by the board or panel to issue a declaratory opinion or any preliminary, procedural, or intermediate action or ruling by the board or panel is subject to the supervisory jurisdiction of the appellate court as provided by Article V, Section 10 of the Constitution of Louisiana. The Court of Appeal, First Circuit, shall promulgate rules of procedure to be followed in taking and lodging such appeals. [Emphasis added by Savoie court.]The Savoie court reasoned that because the legislature is presumed to have enacted a statute in light of the preceding law involving the same subject matter and court decisions construing that statute, and given that the new statute was worded differently from the preceding law, the presumption was that the legislature intended to change the law. 224 So.3d at 1249. Focusing then on the language "whenever any public servant or person is aggrieved by any action taken by ... the [EAB], he may appeal the Court of Appeal, First Circuit," the Savoie court concluded that the removal of all reference to supervisory review of preliminary, procedural, or intermediate actions by the EAB expanded the right of appeal. 224 So.3d at 1249-50.
The provisions of La. Const. Art. X, §21, stating that "the legislature shall provide the method of appeal" of "[decisions of a board" administering the code of ethics, coupled with the method of review presently set forth in La. R.S. 42:1142A, preclude the conclusion that finality is a prerequisite to an appeal in Subsection A(1). This is because in Subsection A(2), which is the basis for the BOE to obtain a review of an EAB decision, the legislature has expressly imposed finality as a prerequisite to such appeals. See La. R.S. 42:1142A(2). And in Subsection A(3), the legislature explicitly set forth that reviews of refusals of the BOE to issue declaratory opinions are through this court's supervisory jurisdiction. Therefore, it is evident that the legislature was mindful of the available avenues of review when it fashioned a method of appeal. The explicit manners of review set out in La. R.S. 42:1142A(2) and (3) belie a finding that in fashioning "the method of appeal" of decisions of an ethics board, the legislature implicitly intended finality of "any action" as a requirement for a public servant or person who is aggrieved to appeal pursuant to Subsection A(1).
The broad grant of power bestowed upon the legislature in La. Const. Art. X, §21, to "provide the method of appeal" of "[d]ecisions of a board" administering the code of ethics, the plain language of La. R.S. 42:1142A, and the history of the statute's enactment, support this court's holding in Savoie, 224 So.3d at 1250. Accordingly, I concur.