Opinion
March 24, 1999
54 — INSURANCE 77 — OFFICERS — LOCAL MUNICIPAL La. R.S. 33:1233
Police Jurors who are compensated on a salary basis may receive paid or partially paid medical insurance premiums in addition to their salaries. Modifies Op. No. 97-142. Recalls Ops. No. 98-85 and No. 91-54.
Mr. S. Mark McMurry Parish Administrator Calcasieu Parish Police Jury P.O. Box 3287 Lake Charles, Louisiana 70602-3287
Dear Mr. McMurry:
Reference is made to your correspondence requesting reconsideration of Opinion No. 97-142, which was released by this office in May of 1997. Opinion No. 97-142 addressed three separate questions, however, you have asked that this office reconsider only one of those issues.
Specifically, you have asked that we reconsider our determination that a police jury cannot legally pay a portion of a police juror's medical insurance premium, in addition to monthly salary, if the combined salary and premium payment amount exceeds the compensation permitted under La. R.S. 33:1233. As your letter notes, Opinion No. 97-142 determined that insurance premium payments made by a parish for members of the police jury should be considered compensation, for purposes of determining the maximum compensation payable to police jurors in accordance with R.S. 33:1233.
The provisions of La. R.S. 33:1233 which are pertinent to your request are found in subsection A of that statute and provides as follows:
"(2) (a) Members of the police juries are authorized to receive compensation not to exceed fifty dollars per day and the same mileage allowance as provided to state elected officials going to and from the courthouses in their respective parishes for every day they are actually employed in the service of the parish and for travel outside of the parish on parish business. Mileage shall be charged for each day of attendance at each session of the police jury to be paid out of funds of the several parishes on the warrant of the president, provided however, that if a juror has use of a parish owned vehicle for the conduct of official business, the mileage compensation shall not be paid.
(b) (i) Police jurors shall not be paid for more than one hundred forty-four days in any one year.
(ii) No police juror shall be compensated for more than twelve meetings per month, or in lieu of such per diem, the police jury may elect, by a vote of a majority of the elected members, to go on a salary basis, in which event the maximum salary allowable shall be one thousand two hundred dollars per month for each member of the police jury." (Emphasis added).
It is our opinion that the above-quoted provisions provide two alternative methods of compensating police juries for their services.
Pursuant to the first method, police jurors can receive maximum compensation not to exceed fifty dollars per day, for no more than twelve meetings per month and for no more than a maximum of one hundred forty-four days in any one year. In our opinion, this method of compensation clearly limits the total amount of compensation (including both cash and non-cash compensation) that a police juror may receive. As such, it is our opinion that a police juror who is compensated on a per diem basis cannot receive paid or partially paid health insurance premiums if the value of the paid portion of the premiums, when combined with the per diem rate received, would cause the his or her compensation to exceed the maximum amount.
Pursuant to the second method, police jurors may be compensated on a salary basis, and can receive a maximum salary of one thousand two hundred dollars per month. Although this method clearly limits the amount of salary (i.e., cash compensation) police jurors may receive, the statute does not indicate that the compensation of a juror compensated on a salary basis must be limited to salary, nor does the statute indicate a maximum amount of total compensation (i.e., salary and non-cash compensation) a juror compensated on a salary basis may receive.
It is the opinion of this office that Police Jurors who are compensated on a salary basis, as opposed to a per diem basis, may receive paid or partially paid medical insurance premiums in addition to their salary. Attorney General's Opinion No. 97-142 is modified to conform herewith. Additionally, Opinions No. 98-85 and No. 91-54, to the extent they conflict herewith, are hereby recalled.
We trust the foregoing to be of assistance. Should this office be of assistance in other areas of the law, please do not hesitate to contact us.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: _____________________________ JEANNE-MARIE ZERINGUE BARHAM Assistant Attorney General
RPI:JMZB:jv
DATE RECEIVED: FEB. 17, 1999
DATE RELEASED:
JEANNE-MARIE ZERINGUE BARHAM ASSISTANT ATTORNEY GENERAL
OPINION NUMBER 98-49
March 17, 1998
La. Const. Art. XI, Sec. 4 LSA-R.S. 18:1465 (A)
Police Jury is not prohibited from using public funds to disseminate purely factual, unbiased information about governmental projects and programs in an annual newsletter to the citizens of the Parish.
Mr. Kelvin G. Sanders Assistant District Attorney P.O. Drawer 1472 Alexandria, Louisiana 71309
Dear Mr. Sanders:
You have requested an opinion of this office as to whether a Police Jury can use public funds to publish and distribute a yearly newsletter to its constituents detailing completed or upcoming projects.
Please be advised that our research did not reveal any provision of law which would prohibit the Police Jury from using public funds to disseminate purely factual, unbiased information about governmental projects and programs in an annual newsletter to the citizens of the Parish.
Please note, however, that La. Const. Art. XI, Sec. 4 and LSA-R.S. 18:1465 (A) prohibit the use of public funds to urge the electorate to vote for any candidate or proposition, as well as the appropriation of public funds to any candidate or political organization. We would caution you to advise the Police Jury to avoid the inclusion of any material that may be construed as a violation of these provisions of law. For your information and assistance, I am enclosing copies of Atty. Gen. Op. Nos. 96-231, 90-126 (A) and 75-589, all of which pertain to the issue presented in your request.
We trust the foregoing to be of assistance.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: JEANNE-MARIE ZERINGUE BARHAM JMZB:dra
Enclosures
15-A CONSTITUTIONAL LAW 1-A-1 ADVERTISE
STATE OF LOUISIANA DEPARTMENT OF JUSTICE June 10, 1975 7TH FLOOR 2-3-4 LOYOLA BUILDING NEW ORLEANS 70112
OPINION 75-589
Art. 11, Sec. 4, Const. of 1974 R.S. 43:111.1; R.S. 33:1236(33) and (40); R.S. 33:4873
Police jury may not use public funds for advertisements about its parish containing names or photographs of police jury members.
Mr. Joe H. Burris Legislative Auditor P.O. Box 44095 Capitol Station Baton Rouge, Louisiana 70804
Dear Mr. Burris:
This opinion is in response to your recent inquiry regarding whether or not it is proper for police jury to expend public funds for the use of names and photographs of police jury members in advertisements for the individual parishes.
The laws applicable to the above question are found in LSA-R.S. 43:111 through 112. R.S. 43:111.1, enacted in 1968, provides the following:
§ 111.1 Advertisements paid for with public funds, restrictions
No public funds shall be used in whole or in part for the payment of the cost of any advertisement containing therein the name of any public official whether elected or appointed; provided, however, that the provisions of this section shall in no case be construed to apply to advertisements or notices required or authorized by law to be published or to any advertisements placed by any public agency or body authorized by law to advertise in the furtherance of its functions and duties.
It is the opinion of this office that by the plain wording of the statute a police jury may not purchase with public funds advertisements containing the names and photographs of police jury members except if it is so authorized by law in furtherance of its functions and duties.
The powers, functions, and duties of the police juries are found in R.S. 33:1236. R.S. 33:1236(33) and (40) specifically authorize the police juries to advertise for the purposes set out therein, i.e. garbage collection contracts and industrial inducement.
R.S. 33:4873 authorizes police juries to spend their funds for advertising up to the amounts prescribed therein. Prior to the effective date of the Constitution of 1974, this statute had been interpreted to allow police juries to advertise in support of bond propositions and even in fair catalogues provided the advertisements were for a public purpose in the descretion of the police jury. Wilkinson v. Poag, 181 So. 27 (La.App. 1938); Op. Atty. Gen. March 1, 1966; Op. Atty. Gen. Oct. 4, 1966; Op. Atty. Gen. 1940-42, p. 2180.
However, the statute must be interpreted in light of Article XI, Section 4 of the new Constitution which provides:
"No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization. This provision shall not prohibit the use of public funds for dissemination of factual information relative to a proposition appearing on an election ballot."
It is the opinion of this office by reading R.S. 43:111.1in pari materia with Article XI, Section 4 of the new Constitution and with R.S. 33:1236(33) and (40), and R.S. 33:4873, that a police jury may not use public funds in whole or in part for the payment of the cost of advertisements about its parish containing the name or photograph of a police jury member.
In our opinion such advertisements would not be in furtherance of functions and duties for which advertising is authorized by law; nor would it be a permissible use of the amounts authorized in R.S. 33:4873 since it does not serve a public purpose. Such advertisements, in our opinion, also may be construed as the use of public funds to urge an elector to vote for a candidate. Such use of public funds is prohibited by the new Constitution.
If this office can be of any further assistance in this matter, please do not hesitate to contact us.
Yours very truly,
WILLIAM J. GUSTE, JR. ATTORNEY GENERAL
By: DONALD ENSENAT Staff Attorney
DE:rm
OPINION NUMBER 90-126A
APRIL 4, 1990
15-A — CONSTITUTIONAL LAW 90-A-1 — PUBLIC FUNDS CONTRACTS La. Const. Art. XI. Sec. 4 (1974) La. Const. Art. VII. Sec. 14 (1974) LSA-R.S. 15:1465
Public funds generally may be used for public information function to provide citizenry with factual information about government; use of public funds to manipulate public opinion isultra vires and unconstitutional, unless expressly authorized by legislature. Original opinion is affirmed.
Mr. Jeff M. David Vice-Chairman Amite River Basin Commission P.O. Box 1685 Denham Springs, LA 70727-1685
Dear Jeff:
You have requested a reconsideration of the original opinion herein which found the use of public funds by the Amite River Basin Commission for a public relations campaign to be unauthorized by statute. You have provided the minutes of the regular November 14, 1989 meeting of the commission which memorialize the decision of the commission to hire a public relations agency "for public relations assistance," and requested that the reconsideration opinion focus upon the language of the minutes and reach a specific conclusion as to whether the November 14, 1989 minutes evidence the performance of a prohibited act by the Amite River Basin Commission.
Opinion No. 90-126 answered, in the abstract, a narrow and hypothetical question of law, tendered in the abstract. Opinions of the Attorney General are conceptual; they cannot by their nature find facts, but only answer questions of law.
In reaching its conclusion that the use of public funds for a public relations campaign by state officers or agencies was unlawful unless expressly authorized by the constitution or by statute, the original opinion suffered a misleading ambiguity by its failure to distinguish between public relations and "public information". While the conclusion of the original opinion was correct and is hereby affirmed, the facial legality of the Amite River Basin Commission's action of November 14, 1989 can only be analyzed if the legal distinction between lawful public information and unlawful public relations is clearly elucidated. The Louisiana Constitution of 1974 and the Election Code in Title 18 of the Revised Statutes clearly make this distinction with regard to elections on tax referenda, an issue which may be present in the commission's use of these public funds for public relations assistance. As the result, the distinction generally between the valid governmental function of public information and the ultra vires activity of public relations is well settled in Louisiana law.
La. Const. Art. XI, Sec. 4 (1974) provides:
No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization. This provision shall not prohibit the use of public funds for dissemination of factual information relative to a proposition appearing on an election ballot. (Emphasis added.)
This provision has been held to be self-operative, without need of enabling legislation. Godwin v. East Baton Rouge Parish School Board, et al., 372 So.2d 1060 (La.App. 1st Cir. 1979). Its violation gives rise to civil remedies; Godwin recognized the viability of causes of action for declaratory judgment and a money judgment for reimbursement of the public funds brought by taxpayers for violation of Art. XI, Sec. 4. Ibid. Such prohibited use of public funds would also create a civil cause of action for an injunction against prospective violations of the constitutional norm. Connick v. Lucky Pierre's, 331 So.2d 145 (La.App. 1st Cir. 1972).
Finally, because the duty created by Art. XI, Sec. 4 is self-operative, its breach may create criminal culpability under LSA-R.S. 14:134 (1)(2) (Malfeasance: a felony).
Godwin, by its interpretation of Art. XI, Sec. 4, concludes that at least with regard to tax referendum elections (or contemplated, planned elections), the line between legality and illegality is that between advocacy of only one side of the public issue through use of public funds and the neutral statement of facts pertinent to all sides of an issue and presented without bias. "Public relations" includes, but is not limited to, lobbying, which is advocacy directed toward government rather than the public at large.
The original opinion herein imputed the former meaning to "public relations" — that original American art which selects and contextualizes the facts or information communicated in order to create a desired body of public opinion which is favorable and compliant to the point of view or political entitlement of the public officer or public entity. Public relations in government generally results in the manipulation of public opinion for the benefit of some private or political goal. It is publicly financed political advocacy, and it is unfair and unlawful precisely because it deprives those citizens who are opposed to the private or political result sought, but at issue, of a level playing field with government. The prohibited advocacy in connection with elections explicated by Godwin's definition of urge in the constitutional provision may be adopted generally for definition of the distinction between public relations and public information. The legal authority for the latter activity of government is subsumed within the constitutional or statutory empowerment of that public officer's or public entity's authorized government function; whereas there is never legal authority for the use of public funds for the former (public relations advocacy) unless expressly authorized by the constitution or statutes. Godwin makes the first part of the distinction as follows:
Urge as used in Art. XI, Sec. 4 means to promote, take a position favorable or opposed to a particular candidate or proposition, or openly and publicly seek the election or defeat of a particular candidate, or the passage or defeat of a proposition submitted to the electorate. Godwin, supra at 1064. (Emphasis added.)
In a definition also adopted herein for general application to this issue without limitation to election campaigns, Godwin ruled that for the expenditure of public funds to qualify for the public information exception to the prohibition of Art. IX, Sec. 4, the information compiled and communicated through the use of public funds must be free from the presence of all advocacy and argument. It cannot be selective in its presentation and contextualization of information and thereby present only one side of the issue. "Public information" may be also defined generally as that which Art. IX, Sec. 4 authorizes in election campaigns to be supported by public funds:
. . . factual information relative to a proposition appearing on an election ballot [which] encompasses all empirical data required by the public to intelligently decide whether to vote for or against the issue. . . . Such information [must be] purely factual and suggest no position for or against and make it clear that the data is published and disseminated solely and only for informational purposes. Godwin, supra, at 1064 (Emphasis added.)
The Attorney General adopts the distinction between public relations and public information stated by the Louisiana Constitution, as interpreted and explained by the Godwin, and applies it to the question of the proper expenditure of public funds for communications activity by government in state government's ordinary, everyday course of business. Without specific, express authorization from the legislature by statute (i.e. drug education, economic development, etc.), the use of public funds to finance public relations techniques to manipulate public opinion on public issues to create a body of public opinion favorable to a public official or entity, is ultra vires. The use of public funds to provide a public information function to a state office is integral to its constitutional and/or statutory power and function, and is lawful if its intent is to be factually informative to the public.
The public information function recognized as lawful here is not only consistent with democratic values but essential to conformation to them by government. Even the communist world, in its startling intended transformation into democratic polities, recognizes the essentiality of fact-based and honest information to the public from government — they call it glasnost.
Public trust requires the citizenry to have access to accurate information to evaluate and judge the honesty, fairness and efficiency of government. Fact-based information also facilitates public respect for the lawful exercise of authority by government, when such exercise of authority, if not understood, might be popularly contested or obstructed.
The legal issue here is teleological. The expenditure of public funds for this type of communications activity is not unlawful per se. It is the purpose for which the public funds are spent, and the intent of the public agency or official which makes the expenditure, which controls the legal character of the expenditure. While intent must always be inferred from acts or circumstance, and its true nature difficult sometimes to precisely determine because it is a question of fact, nonetheless it serves as the test we herein adopt as the bright line between legality and illegality, both in election campaigns and in the general course of business by state government.
The Attorney General, in an earlier opinion personally written by Mr. Guste, has recognized this standard in his enforcement of "constitutional prohibitions against the use of public funds for private and political purposes." Opinion of the Attorney General No. 76-307.
The legal test stated by the Attorney General was reaffirmed in Opinion of the Attorney General No. 79-1191, which disallowed the use of public funds to pay for a newspaper advertisement addressing a proposed constitutional amendment. The Attorney General disallowed the use of public funds because "the proposed advertisement takes a stand in the support of passage of constitutional amendment No. 1 and does not desseminate purelyfactual information." (Emphasis added.)
Several other points should be made concerning the rule stated in this opinion and derived from the constitution, statutes and jurisprudence.
Art. XI, Sec. 4 is enabled by a statute in the Election Code, LSA-R.S. 18:1465. The statute duplicates the prohibitory language of the constitutional provision, but further provides a criminal penalty for its violation.
Violation of the Constitution or the Election Code provisions does not invalidate or delegitimate any election in which the illegal use of public funds occurred. Rather than nullification of the election results, the proper remedy in law is criminal prosecution. Concerned Business and Property Owners of DeSoto, Inc. v. DeSoto Parish School Board, 528 So.2d 567 (La.App. 2nd Cir. 1988).
Violation of this rule may result in criminal penalities under another statute. LSA-R.S. 43:31D prohibits the use of public funds appropriated for printing for the partisan or public relations purposes prohibited by Art. XI, Sec. 4 and R.S. 18:1465, subject to the same exception authorizing the use of public funds to desseminate "factual information relative to a proposition on any election ballot." Violation of Sec. 31D creates culpability for a criminal penalty under R.S. 43:31F.
Finally, another constitutional provision justifies the extension of the legal standard of Art. XI, Sec. 4 to the general course of business by all governmental entities, state, local and parochial, including state boards, commissions and districts. La. Const. Art. VII, Sec. 14 (1974) characterizes as illegally gratuitous those expenditures of public funds which are not mandated by a legal obligation or subsumed by legal duty. City of Port Allen v. Louisiana Mun. Risk Management Agency Inc., 439 So.2d 399 (La. 1983). Without a legal obligation to engage in public relations created by a statutory delegation of the power and duty to do so by the legislature, neither the commission nor any other state officer and agency may do so. Because of the use of public funds, the lack of authority in the enabling statute identified as ultra vires in the original opinion rises to the level of a constitutional violation not limited to the presence of a tax referendum on a ballot as in the case of Art. XI, Sec. 4. No government entity or officer, without a legal obligation created by an authorizing statute, may use public funds to attempt to wrestle public opinion to rest on one side of a public issue of moment to the public interest or to government. The constitution denies the use of public funds to finance the advocacy of the self-interest of any state agency or officer. Lobbying is likewise barred where financed by public funds; it is but an included instance of the same malum prohibitum, except it is directed at manipulating and influencing government action rather than public opinion.
It is crucial to note that the core prohibition of the doctrine expounded herein is the use of public funds. The law values and protects the most passionate, eloquent and totally one-sided expression of conviction regarding public issues by both public officials and citizens alike. The members of the Amite River Basin Commission are constitutionally entitled, and protected, to make the most vociferous public argument possible for the construction of a reservoir to alleviate the profound drainage problem within their district — as long as they do not use public funds to potentiate their entreaty of the collective opinion of the electorate. Godwin carefully noted this point:
. . . the provision [Art. XI, Sec. 4] is designed to prevent public officials from using public funds to support or oppose candidates, parties or propositions. We note particularly that the provision does not prohibit public officials from supporting or opposing candidates, parties or propositions with their personal funds and resources, which admittedly they have a right to do. It only prevents their doing so with public funds. Supra. at 1063. (Emphasis added.)
With regard to your opinion request, there is nothing facially illegal about the action of the commission that is memorialized in the November 14, 1989 minutes. There is nothing illegal in a state agency with statutory authority to ameliorate flooding and drainage problems to spend money for professional help in preparing a public information slide presentation which empirically and factually informs the citizenry and government officials of the actual nature of the flooding and drainage crisis in the Amite River Basin Drainage District, without seeking public or official support for the affirmative side of any tax referendum which must be electorally approved in order to authorize the levy of a 3 mill ad valorem tax under LSA-R.S. 33:3309 to finance the construction a new reservoir to alleviate the flooding.
Hence it is superficial to judge the legality of the acts of the commission on the basis of the minutes alone. The correct legal question is not whether the funds were authorized but what was the nature of the slide presentation prepared by the public relations agency hired with public funds, and how was it used? Did it advocate the approval of a tax referendum to authorize a 3 mill ad valorem tax to generate sufficient revenue to build a reservoir? Did the slide presentation present the opposite view — the alternatives available to alleviate the flooding problem without an ad valorem tax or new reservoir?
Beyond the minutes you have supplied, I have no idea what the commission did or did not do. The minutes do not reflect the intent or purpose of the commission as to how the work product of the public relations agency would be used. Intent is a finding of fact, and that is beyond the authority of this opinion, which is restricted to questions of law. The power to find facts is a judicial and a quasi-judicial one, and the question of intent must be deferred to the appropriate district court and district attorney, respectively.
However, until the appropriate judicial officer may find differently, the act of the Amite River Basin Commission in expending these funds for "public relations assistance" is presumed lawful, and the Attorney General so presumes. LSA-R.S. 15:432.
Trusting this to be of sufficient information, I am
Sincerely,
WILLIAM J. GUSTE, JR. Attorney General
BY: CHARLES J. YEAGER Assistant Attorney General
CJY: tm
STATE OF LOUISIANA One American Place DEPARTMENT OF JUSTICE 301 Main Street, Suite 600 CIVIL DIVISION P.O. Box 94005 BATON ROUGE TEL.:(504)342-7013 70804-9005 FAX.:(504)342-2090