Opinion
2011 CW 1309
03-30-2012
IN THE MATTER OF DONALD VILLERE v. THE LOUISIANA BOARD OF ETHICS
Lawrence J. Centola, III New Orleans, Louisiana Counsel for Applicant Donald Villere Aaron Brooks Kathleen M. Allen Tracy Barker Baton Rouge, Louisiana Counsel for Respondent The Louisiana Board of Ethics
NOT DESIGNATED FOR PUBLICATION
ON WRIT OF CERTIORARI FROM
THE DIVISION OF ADMINISTRATIVE LAW
ETHICS ADJUICATORY BOARD - PANEL A
NUMBER 2011-6158
STATE OF LOUISIANA
HONORABLE JOHN O. KOPYNEC
PRESIDING ADMINISTRATIVE LAW JUDGE
Lawrence J. Centola, III
New Orleans, Louisiana
Counsel for Applicant
Donald Villere
Aaron Brooks
Kathleen M. Allen
Tracy Barker
Baton Rouge, Louisiana
Counsel for Respondent
The Louisiana Board of Ethics
BEFORE: WHIPPLE, KUHN, AND GUIDRY, JJ.
GUIDRY , J.
This matter arises out of the March 27, 2010 election for the Mayor of the City of Mandeville. On March 26, 2010, a complaint was filed with the Louisiana Board of Ethics (the Board) by Trilby Lenfant, opponent of elected Mayor Donald Villere, alleging Mayor Villere made false statements about her during the campaign.
The record before us does not reveal the identity of the complainant, although, in arguments and briefs, all parties refer to the complainant as Trilby Lenfant.
The answers to interrogatories filed by the Board and contained in this writ application reveal the nature of the alleged false statements as follows:
(1) that Ms. Lenfant, as council woman, voted to award the City's insurer contract to the company for which her husband was employed, (the Board asserts in truth and fact, her husband worked for a different insurance company at the time of the vote);
(2) that Ms. Lenfant's husband and his business partner profited from an ordinance passed by the Mandeville City Council when Ms. Lenfant was a councilwoman (the Board asserts in fact, only her husband's business partner, in his individual capacity, profited from the ordinance);
(3) that Mr. Villere made a false statement concerning the appraisal value of Ms. Lenfant's home, which he represented to be far below the actual value of the home (the Board asserts he erroneously relied on the Assessor's Office information);
(4) that Ms. Lenfant waited to vote on an ordinance limiting fill on property to six inches until after she filled her personal property, (when the Board asserts reasonable research would have shown that she did not use six feet of fill at her home); and finally,
(5) the representation in the flier that the statements therein were extensively researched proven facts, (the Board asserts several false statements are contained therein.)
On March 3, 2011, as part of the continuing investigation into possible wrongdoing on the part of elected official, Mayor Villere, the Board, pursuant to an earlier issued subpoena and a subpoena duces tecum, took the deposition of Mayor Villere as the subject of its investigation.
On March 17, 2011, by a majority vote of the members at its meeting, the Board, through its Chair, Frank P. Simoneaux, filed formal charges against Mayor Villere, alleging in Count One that he violated La. R.S. 42:1130.4 "when he distributed, or caused to be distributed, with the intent to mislead voters, a written brochure entitled 'Ms. Lenfant claims to be a reformer,' which he knew contained false statements regarding Trilby Lenfant." Count two contains identical allegations against Mayor Villere in connection with the distribution of an email entitled, "You Be the Judge," also containing alleged falsities about Ms. Lenfant.
During that deposition, responding to questions about the brochure at issue, Mayor Villere revealed the name of the political consultant he hired to produce the brochure and who represented to him that everything contained therein was truthful, as Debbie Smith, from Lacombe, Louisiana.
On July 1, 2011, the Board issued a second subpoena setting a second deposition of Mayor Villere for July 7, 2011. On July 5, 2011, Mayor Villere filed a Motion to Quash the Subpoena, contending that Mr. Villere had already been deposed by counsel for the Board once, and that the Board had failed to show any reasons (jurisprudentially required "good cause shown") why a second deposition is necessary.
On July 6, 2011, Administrative Law Judge John O. Kopynec held a telephone conference with the parties, following which he denied Mayor Villere's Motion to Quash. The parties voluntarily agreed to stay the deposition pending this writ application by Mayor Villere.
DISCUSSION
In addition to objecting to the subpoena for a second deposition on the basis that it would be highly inconvenient, unnecessary, and an unreasonably vexatious request, Mayor Villere argues that the Board was privy to his campaign financial disclosure, which revealed the identity of the person who produced the brochure at issue as Debbie Smith. Therefore, according to Mayor Villere, the Board could have obtained her identity and requested a deposition from her directly, or it could have contacted her during the investigation, prior to it taking his first deposition had it deemed such necessary. Thus, the Mayor disputes the Board's claim that it did not know, until Ms. Smith's identity was revealed during the first deposition, of the need to further question her and the Mayor about issues relating thereto.
The Board, on the other hand, asserts that the second deposition became necessary after it acquired "newly gained information" after learning the identification of the person responsible for publishing the brochure and speaking with Debbie Smith following the initial deposition of Mayor Villere. The Board asserts that Ms. Smith revealed and turned over to it several preliminary drafts and optional versions of the brochure preceding the production of the final product that was actually distributed to the voters. The Board contends that these differing versions, reflecting the language and content modifications to the information contained therein, go to the very heart of the Mayor's knowledge and input of the information that was placed in the brochure as well as the language chosen to be used therein. The Board also contends that it did not, and could not have known about these varying document drafts until it spoke with Debbie Smith. Also, the Board notes that the Mayor's financial disclosure lists Ms. Debbie Smith as someone who was paid for campaign services, the disclosure does not identify her as the person responsible for the production of the brochure at issue. This court's review of the disclosure statement confirms the Board's representation; while other persons are identified as having performed services related to "mailouts" and such, there are no such identifying notes next to the entry identifying Debbie Smith as a payee.
The only case cited by the parties, and the only reported case this court has found that addresses the issue in similar circumstances is Guillory v. Bofinger Tree Service, 2006-0086 (La. App. 1st Cir. 11/3/06), 950 So.2d 682, wherein this court affirmed a trial court's refusal to allow defendant's request to take a supplemental deposition of a workers' compensation benefits claimant. In so doing, this court noted that the lower court (in that case, the workers' compensation judge) has broad discretion in ruling on discovery matters (see La. Code Civ. P. art. 1426), and in that discretion, a court can refuse or limit discovery of matters not relevant, unreasonably vexatious, or tardily sought. In Guillory, as in this matter, the claimant had already submitted to an initial deposition. However, the defendants argued that the attorney who took the first deposition was not as thorough as she should have been in exploring the issues. In denying the request, the workers' compensation judge stated based on those reasons, granting the defendants' request for a second deposition would be akin to granting them a "second bite at the apple." The court concluded "no good cause" had been shown, and denied the request for a second deposition. This court affirmed. Guillory, 950 So.2d at 695.
The Board in this matter claims that the "good cause" shown for requesting a second deposition in this matter is the acquisition of newly gained information as a result of its communications with Debbie Smith, the producer of the brochure at issue, after learning of her identity during the initial deposition. The Board represents that during communications with Debbie Smith, she revealed and turned over to it many preliminary rough drafts of the brochure that were presented to Mayor Villere and modified pursuant to his direction in terms of the strength of the language used and the phraseology of the content therein. The Board claims that these drafts, showing the changes made, go to the very heart of the issue concerning the alleged charges against Mayor Villere: his knowledge and approval of the precise information and the veracity thereof, that was ultimately included in the brochure that was distributed to voters.
Mayor Villere's only defense in opposition to the request for a second subpoena is that, given his busy role and duties as Mayor of the City of Mandeville, the request is unreasonably vexatious. He also contends that the identity of Debbie Smith could have been discovered by the Board during its investigation as her name, as well as the fact that she was a payee in his campaign, was revealed in his financial disclosure to which the Board had access. However, our review of that disclosure reveals, as argued by the Board, that, although Ms. Smith is listed as a payee, that listing does not specifically indicate that those expenses were in connection with the publication of the brochure at issue, nor was it listed as expenses for a "mailouf" as were other items listed therein. Thus, it appears that the actual disclosure fails to support Mayor Villere's claim that the discovery of information related to the brochure from Debbie Smith should have been reasonably discovered prior to the first deposition.
Accordingly, we find the Board has shown sufficient "good cause" for its request. After acquiring the identity of a witness during the first deposition, it also acquired newly gained information substantially related to the ultimate issue underlying the charges herein; and, therefore, a second deposition is necessary as it would lead to relevant discoverable information, is not unreasonably vexatious under those circumstances, and in any event, was not an abuse of the lower court's great discretion in these matters.
Although not raised as an issue by the parties, to the extent that Villere challenges the Board's authority to take Villere's deposition, we note that La. R.S. 42:1141 governing the procedure and authority of the adjudicatory board, provides in Section E(2)(a):
For purposes of an investigation or a hearing, the board or panel may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any records which the board deems relevant or material to the investigation or hearing. [Emphasis added.]Subsection (b) provides that the board shall adopt rules providing for discovery consistent with the Code of Civil Procedure (C.C.P. art. 1420, et seq.). In the Rules for the Board of Ethics, Chapter 11, governing Pre-Hearing Procedure, §1101, entitled Discovery, provides in Subsection C:
The trial attorney and any respondent may take depositions on oral examination, an pursuant to the provisions of applicable Code of Civil Procedure articles, to the extent practicable, of those persons whose names and addresses have been furnished to the respondent .... Such depositions shall be admissible in the public hearing, as ordered by the board or any panel thereof or as otherwise provided by law.
Additionally, Subsection B of that Rule provides in general:
The trial attorney and any respondent may obtain discovery regarding any matter, not privileged, which is relevant to the pending public hearing. It is not ground for objection that the information at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.And to the extent that Villere raises the issue of whether a person under the board's investigation is entitled to criminal constitutional protections, we note the case of Mabry v. Louisiana State Racing Commission. 469 So.2d 1130 (La. App. 4th Cir. 1985). There, a similar argument was raised and rejected, we believe correctly by that court. In that case, the plaintiff, who had been fined and suspended based on his alleged violation of the Commission's claiming rule, argued that the Commission proceeding violated Article 1, Section 16 of the Louisiana State Constitution, which provides that every person charged with a crime is entitled to a trial in which he has the opportunity "to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf." Mabry, 469 So.2d at 1132. The plaintiff contended his rights had been violated by the Commission's proceedings. The court stated, "This argument is fallacious because plaintiff was not charged with a crime, but with a violation of the Racing Commission rule. The Commission hearing was not in any sense a criminal trial." The court acknowledged that the matter might ultimately be referred to the District Attorney for investigation of possible criminal activity, but found that irrelevant, at least at that point in time, noting that if plaintiff were eventually charged with a violation of a criminal statute, he would then be afforded all constitutional rights. We believe that same analysis applies here, and note that in Mabry, the penalty imposed by the Racing Commission was even more severe than what the Board in this case has the authority to do. Not only was a fine involved, but also a suspension of privileges, and the court still rejected the plaintiff's contention that because of the punishment, the proceedings were "criminal" in nature.
CONCLUSION
For all the foregoing reasons, we find the trial court did not abuse its discretion in denying Villere's Motion to Quash the second deposition. The Board of Ethics acted well within its authority and has shown the requisite "good cause" for being allowed to continue discovery in this matter. Accordingly, we deny the writ.
WRIT DENIED.
IN THE MATTER OF DONALD VILLERE
v.
THE LOUISIANA BOARD OF ETHICS
NO. 2011 CW 1309
KUHN, J., dissenting.
T must disagree with the majority's conclusion that the Board of Ethics (the Board) has "acted well within its authority and has shown the requisite 'good cause' for being allowed to continue discovery in this matter." The majority's affirmance of the denial of the motion to quash permits the Board to bolster its case long after it presumably had probable cause to file charges against Donald Villere, Mayor of the City of Mandeville (the City), for alleged violations of law. Moreover, because of the quasi-criminal nature of the merits proceeding against Villere, the effect of the majority's action is certain to raise serious constitutional issues vis-a-vis Villere's Fifth Amendment right against self-incrimination.
The majority's action in affirming the right of the Board to a second deposition also has the effect of abrogating Villere's First Amendment right of free speech to hold an opinion. See e.g. n.2, infra.
La. R.S. 42:1130.4 states:
No candidate in an election shall, with the intent to mislead the voters, distribute or cause to be distributed any oral, visual, or written material containing any statement which he knows makes a false statement about another candidate in the election.
On March 17, 2011, the Board charged Villere with the following:
Count I.
At a time when [Villere] was a candidate for the office of Mayor of [the City] in the March 27, 2010 election, he violated La. R.S. 42:1130.4 when he distributed or caused to be distributed, with intent to mislead voters, a written brochure entitled, "Ms. Lenfant claims to be a reformer" regarding another candidate, Tribly Lenfant, in the March 27, 2010 election for the office of Mayor of [the City], which he knew contained false statements regarding [Lenfant].
Count II.
At a time when [Villere] was a candidate for the office of Mayor of [the City] in the March 27, 2010 election, he violated La. R.S. 42:1130.4 when he distributed or caused to be distributed, with intent to mislead voters, a written email entitled, "You Be the Judge," regarding another candidate, [Lenfant], in the March 27, 2010 election for the office of Mayor of [the City], which he knew contained false statements regarding [Lenfant].
In his writ application, Villere contends that the ALJ's ruling is erroneous because the Board is not entitled to a second deposition subsequent to having levied charges against him. The Board urges that because it did not learn of the name of the person who produced the brochure until the March 3, 2011 deposition of Villere, it needs to re-depose Villere since, after it spoke with the person who produced the brochure, the Board obtained "newly-known and newly-acquired evidence and documents," which is "the most relevant proof of [Villere's] knowledge, or lack of knowledge, as to the truth or falsity of the information published in the brochure," which suggests that at the time the charges were filed against Villere, the Board lacked sufficient evidence to support the charges.
The court has broad discretion in ruling on discovery matters, including the discretion to deny discovery. La. C.C.P. art. 1426; Laburre v. East Jefferson General Hosp., 555 So.2d 1381, 1385 (La. 1990). But there are limitations to this rule when justice requires that a party or other person be protected from annoyance, embarrassment, oppression, or undue burden or expense. Belonga v. Crescent City Dodge, L.L.C., 2000-3419 (La. 3/9/01), 781 So.2d 1247,1248 {per curiam).
The relevant procedure is set forth for the Board in La. R.S. 42:1141. Applying that procedure in this case, it is evident that on March 17, 2011, when the Board filed charges against Villere, it was "following an investigation that a public hearing should be conducted." See La. R.S. 42:1141 C(3)(a). Because a private investigation had been conducted, in which evidence was elicited, a recommendation, (presumably by a panel) was made to the Board to conduct a public hearing. See La. R.S. 42:1141 C(l) & (2). Thus, at the time it filed charges, the Board presumably had already obtained sufficient evidence to put before the Ethics Adjudicatory Board in a public hearing the issue of whether Villere distributed or caused to be distributed a written brochure (count I) and a written email (count II) "which he knew contained false statements regarding [Lenfant]" as required for a finding of a violation of La. R.S. 42:1130.4.
While the Board has suggested that it was not until the March 3, 2011 deposition of Villere that it first learned the name of the person who produced the brochure which it has charged Villere with having distributed (or having caused to be distributed) "with knowledge that it contained false statements," the Board has offered nothing to explain why it did not continue the investigation at that point rather than file formal charges, which then necessitated the public hearing and the ultimate determination by the Ethics Adjudicatory Board of whether Villere violated La. R.S. 42:1130.4. And although La. R.S. 42:1141 C(3)(c) requires that the Board file charges within one year of receiving the complaint, one should presume that the Board timely commenced its investigation, particularly in light of the statutory requirement that it send a copy of the sworn complaint to both "the accused and the complainant," see La. R.S. 42:1141 B(l)(a), and, therefore, had more than sufficient time to fully elicit all the evidence it needed to bring the matter before the Ethics Adjudicatory Board for a public hearing on whether Villere had violated La. R.S. 42:1130.4.
The request for a second deposition is simply an attempt to elicit more evidence subsequent to the investigation stage of the statutorily defined process. Any information that would be subsequently acquired by the Board through a second deposition of Villere relative to his having distributed (or having caused to be distributed) the brochure with knowledge that it contained false statements would only be cumulative evidence of that which the Board already has in its possession and for which the charges had to have been based so as to permit the Board to have filed them in accordance with La. R.S. 42:1141C(3)(a). As such, I believe the second deposition is not appropriate and that justice requires Villere to be protected from oppression and undue burden. See Belonga, 781 So.2d at 1248; see also Guillory v. Bofinger's Tree Srvc., 2006-0086 (La. App. 1st Cir. 11/3/06), 950 So.2d 682, 687 ("getting a second bite at the apple" is not good cause for a second deposition).
Additionally, I point out that at the hearing on the merits, should Villere choose to testify, nothing would preclude the Board from questioning him about such information. But see and compare La. R.S. 42:1141E(4)(a) & (b) (any action by a public official in willfully refusing or failing to appear before the Board or panel, or any court authorized to conduct any hearing or inquiry pertaining to the provisions of this Chapter, or having appeared refusing to testify or answer any question specifically, directly, and narrowly relating to the performance of his official duties on the ground that his testimony or answers would tend to incriminate him, or refusing to accept immunity from prosecution on account of any matter about which he may be asked to testify at any such hearing or inquiry shall be subject to dismissal or forfeiture of his office or position and if dismissed, will not be eligible thereafter for employment by the governmental entity for a period of five years, unless such reemployment is authorized by a majority vote of the membership; and the Board is authorized to prescribe the penalties provided in La. R.S. 42:1153 against such elected official).
For these reasons, I find that the ALJ abused its discretion by denying Villere's motion to quash where, as here, the second deposition was merely an attempt to elicit cumulative evidence. Even more importantly, because of the obvious penal nature of the proceedings conducted by the Board against Villere, I strongly believe that as a subject of a complaint lodged with the Board, he should receive those protections afforded those who are charged with a crime.
In this case, Villere is charged with having violated, La. R.S. 42:1130.4. And La. R.S. 42:1153A provides:
Upon finding that any elected official or other person has violated any provision of any law within the jurisdiction of the [B]oard ... the [B]oard by a majority vote of the membership, may censure the elected official or person, or impose a fine of not more than ten thousand dollars, or both. (Emphasis added.)
A "fine" is a pecuniary criminal punishment or civil penalty payable to the public treasury. See Black's Law Dictionary 708 (9th ed. 2009). A "penalty" is a punishment imposed on a wrongdoer, usually in the form of imprisonment or a fine. It can be a sum of money exacted as punishment for either a wrong to the state or a civil wrong. Although a penalty is usually imposed for a crime, it is sometimes imposed for a civil wrong. Id. at 1247 (9th ed. 2009). An action is "penal" when it is "of, relating to, or being a penalty or punishment," particularly for a crime." Id. at 1246. A "statutory penalty" is understood to mean a penalty imposed for a statutory violation, Le., one that imposes automatic liability on a wrongdoer for violation of a statute's terms without reference to any actual damages suffered. Id. at 1247. And an offense that is not subject to criminal prosecution but for which penalties or forfeitures can be imposed is a "quasi- crime," and includes forfeitures for the violation of a public duty. Id. at 428. Thus, where an individual is subject to the imposition of a fine ~ as Villere is here since the Board has filed charges against him for alleged violations of La. R.S. 42:1130.4 ~ the proceeding before the Ethics Adjudicatory Board is for a quasi- crime, that is a penal action and for which he is exposed to a statutory penalty. As such, Villere is entitled to the protections afforded by the Louisiana and United States Constitutions to those accused with having committed a crime.
It has long been recognized by our courts that a penalty provided for in a statute is for the purpose of inflicting punishment upon the violator of its provisions. In McHugh v. Placid Oil Co., 206 La. 511, 19 So.2d 221, 224 (1944), the court grappled with the issue of the applicable prescriptive period for the imposition of a statutory penalty in the context of delivering and transporting quantities of oil in excess of the permissible amounts. Concluding that the true nature of the proceeding was criminal, the McHugh court noted that although a penalty may be recovered in a civil suit, it is nevertheless a punishment for an infraction of the law, reasoning that the word "penalty" conveys the thought and idea of punishment and, therefore, the character of a penalty is not changed by the method through which it is imposed whether by civil action or criminal prosecution. Id., 19 So.2d at 225 (citing U.S. v. Chouteau, 102 U.S. 603, 26 L.Ed. 246, 249 (1880)). Although the recovery may be sought in the form of a civil action, the McHugh court held that such a proceeding in nature and effect is a proceeding for the punishment of a criminal offense and should substantially adhere to the essential principles governing such proceedings. Id., 19 So.2d at 226. Accord Boyd v. U.S., 116 US 616, 633-35, 6 S.Ct. 524, 29 L.Ed 746 (1886) (subsequently legislatively overruled on other grounds) (a proceeding to forfeit goods for customs revenue violation, which is a civil infraction that is quasi-criminal in nature, is treated as a criminal case and afforded Fifth Amendment constitutional protection); State v. Edwards, 2000-1246 (La. 6/1/01), 787 So.2d 981, 991 (criminal forfeitures are a part of a criminal prosecution and, therefore, are subject to rules of criminal procedural); State v. Cook, 203 La. 95, 13 So.2d 478, 480 (1943) (an action seeking to impose a penalty or punishment for forfeiture of a truck and trailer is quasi-criminal, subject to rules governing the interpretation and construction of penal statutes, and are to be strictly construed; rules applicable to civil matters do not apply); and L-Franca v. U.S., 37 F.2d 269, 270 (5th Cir. 1930) (penalty imposed for criminal misconduct is not less punitive simply because it may be enforced by a proceeding that is civil in form).
Our Louisiana Supreme Court has held that attorney disciplinary proceedings are quasi-criminal in nature, thus, entitling the subjects of those proceedings to due process of law and the protections afforded thereby. In re Nevitte, 2002-1962 (La. 9/30/02), 827 So.2d 1135, 1136 (citing and relying on In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968)). Additionally, this court has held that criminal contempt proceedings entitle the subjects of those proceedings to constitutional protections, notwithstanding that the proceeding for contempt arises in a civil setting. For example, in Estate of Graham v. Levy, 636 So.2d 287 (La. App. 1st Cir. 4/8/94), writ denied. 94-1202 (La. 7/1/94), 639 So.2d 1167, after finding that the punishment (jail sentence) imposed was criminal in nature, this court held that the accused was entitled to constitutional protections, including that the offense be proved beyond a reasonable doubt. And in Geo-Je's Civic Assoc., Inc. v. Reed, 525 So.2d 192, 197-98 (La. App. 1st Cir. 1988), the court recognized that defendants held in contempt are entitled to basic constitutional protections, including prohibitions against double jeopardy. The Reed court also held that certain provisions of the Code of Criminal Procedure may be extended by analogy to contempt proceedings.
Additionally, the criminal nature of these proceedings against Villere are underscored by the use of the terms "accused" and "defendant" in the statute that provides for the process by which the Board may proceed against the subject of a complaint. See La. R.S. 42:1141B(l)(a) and C(2).
Therefore, it is beyond evident that Villere is entitled to basic constitutional protections in defending against the charges filed against him by the Board. Of particular concern to me is the effect of any attempt by Villere to exercise his Fifth Amendment right against self-incrimination at the public hearing. Although the constitutionality of these provisions is not an issue in this writ review, as already noted, under La. R.S. 42:1141E(4)(a) & (b), public officials are exposed to dismissal and the punishments of censure and the imposition of a fine (set forth in La. R.S. 42:1153) for exercising the right against self-incrimination in certain instances.
Tn Baxter v. Palmigiano, 425 U.S. 308, 318-19, 96 S.Ct. 1551, 47 L.ed.2d 810 (1976), the U.S. Supreme Court commented on the issue of silence by a witness in a civil proceeding noting that:
[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment "does not preclude the inference where the privilege is claimed by a party in a civil cause." (Citation omitted.)Thus, in a civil case, a negative inference may be drawn against a party to the action who asserts his Fifth Amendment privilege. Accord Dimitri v. O'Keefe, 96- 1358 (La. 6/21/96), 675 So.2d 733; Smith v. Lynn, 32-093 (La. App. 2d Cir. 8/18/99), 749 So.2d 692; Miles v. Louisiana Landscape Specialty, Inc., 97-118 (La. App. 5th Cir. 6/30/97).
The majority cites the case of Mabry v. Louisiana State Racing Comm'n, 469 So.2d 1130 (La. App. 4th Cir. 1985) for the proposition that constitutional protections do not apply to the facts of this case, interpreting the phrase "criminal" constitutional protections. As already noted, constitutional protections apply in both civil and criminal cases. The real issue before us is whether the potential effect of this charge against Villere is penal in nature, thus affording a charged individual with all the protections of the U.S. and Louisiana Constitutions. The severity of the potential penalty is of no moment. In comparing Mabry to the writ before us, the majority notes that "the penalty imposed by the Racing Commission was even more severe than what the Board in this case has the authority to do." That subjective conclusion misses its mark. The potential severity of the penalty is not a factor in the application of an individual's constitutional rights. Moreover, an elected official like Villere may not agree with that conclusion in light of the impact the imposition of a penalty may have on his reputation and career.
With these legal constraints in mind, I feel compelled to point out that in this quasi-criminal, penal proceeding, if Villere chooses to invoke his Fifth Amendment right against self-incrimination at the second deposition, negative inferences can be drawn and held against him, despite the criminal nature of these proceedings and in derogation of his right to invoke Fifth Amendment protection. Thus, justice requires that as a party accused with a quasi-crime, Villere be protected from oppression and undue burden otherwise afforded this administrative tribunal in ruling on discovery matters. See Belonga, 781 So.2d at 1248.
Whether analyzing the Board's action under a civil or a criminal standard, it appears when charging Villere with having violated the provisions of La. R.S. 42:1130.4, the Board simply ignored the requisite elements that are its burden to prove and undertook the role of weighing the evidence to determine whether a breach had occurred. Specifically, the Board must prove that Villere "with intent to mislead the voters" distributed or caused to be distributed material "containing ... statements ...he knows makes a false statement" about his election opponent. Villere's first deposition is rife with the Board's stated belief that his responses are insufficient to support his articulation of his subjective state of mind and that the attorney representing the Board is authorized to weigh or grade the testimonial evidence rather than collect it for purposes of presenting it to the ultimate trier of fact.
In the first deposition, the following exchanges between Aaron Brooks, Counsel for the Louisiana State Board of Ethics, and Villere occurred: By Brooks:
Q. And I am told that your opponent in the election was not given an opportunity to view this [brochure] before it was mailed. By Villere:
A. That's true.
Q. Not that you had an obligation to do such, but I'm just making sure. ...
You will find that most of this deposition is going to be negating possible defenses, that if this were to go forward that you would make. So, I'm going to spend a lot of time having you establish a negative and going from that. And your attorney will know exactly what I'm doing. I'm just trying to defeat [-] ...
A thorough reading of the first deposition testimony demonstrates that even that was annoying, oppressive, and an undue burden on Villere. For all these reasons, permitting the second deposition after the Board has filed charges against Villere is clearly an abuse of discretion. Accordingly, I dissent.
Later, the Board additionally alleged:
(1) Mayor Villere made additional false statements about Ms. Lenfant, concerning her claiming a special exemption for a reduction in property taxes as well as statements that she owned 124 acres of property neighboring her home, (the Board maintains that she, in fact, owned only a 10% interest in the company that owns the acreage; and
(2) that Ms. Lenfant, as councilwoman, initially fought the city's audit, and then later changed her mind when the audit was beneficial to her; and that she was inconsistent in her statements concerning the selection of a new police chief, noting that initially she wanted to spend taxpayers' money on a national search for such, but later claiming she would name her own if elected mayor.
Q. We have selected certain bullet points [from the brochure] and we're going to try to work from there. We're going to start off with No. 6. Ms. Lenfant's house in The Preserve is appraised at nearly $560,000. ... [W]hat is your documentary evidence of the $560,000.
A. It would be this St. Tammany Parish Assessor.... That would be St. Tammany Parish Assessor's assessment of the property, which states that the total assessed value is $55,934....
Q. And you equated the assessed value to equate to an appraisal?
A. Knowing that the assessed value is normally smaller than an appraised value, yes, sir.
Q. Okay. Do you have any other support you wish to offer for the $560,000?
A. No, sir.
Q. You use the term, in your brochure, of her next door neighbor's house, which next door neighbor were you identifying when you stated that? ... And your statement in "the next door neighbor's house," even by this document there are at least three lots in between, if not more, from inside here, would you agree with that? ... The homes are more higher caliber and higher value in The Sanctuary than they are in The Preserve, would you agree with that assessment?
A. It's [...] it is[.] Yes, it is the closest house though to her home. ...
Q. Okay, the Board of Ethics, if this were to go forward, will likely make the argument this is a comparison of apples and oranges, that you have a lower value subdivision versus a higher value subdivision, do you have [-]
A. Well, I'm not sure that [-]
Q. Do you have a response to that contention?
A. I wouldn't consider it a lower value subdivision[.] ...
Q. Well, the question is, is what is your factual support for her claiming of a special exemption to reduction in property taxes?
A. You can pick any one of these [-] It says [--]
Q. No, sir, I can't [-]
A. special land use[.]
Q. I need you to pick; I don't get to pick. ...
Q. And our position would likely be, talking with people in the street is not sufficient factual support in order to make claims in the brochure. ...
Q. You know, the premise of a law is that you made the statement, you've got to stand by it or either it becomes false or it becomes unreasonably negligent to put it out there.
A. Yeah.
Q. I don't know what the legal standard is going to be because we're still in the infant stage of this law. Once again, my question is, in the 2005 vote you don't know whether it went to Hanover's or to the St. Paul Travelers consortium?
A. I believe at the time it went to the company Mr. Lenfant was working for.
Q. Now, see, that opens up a new can of worms when you say believed at the time. Because we will argue that believed at the time is not a defense. ...
Q. The point I'm making here is that if you knew that he was supporting you and was against her I'm going to stand up and argue that you had a duty, if you were going to rely on his facts, to go double-check it a little bit more because you knew he had a bias. ...
Q. I'm not trying to find out where the victim is in this thing, if there is a victim. Skeletons are hid too, that's the reason I'm asking. Anything you wish to say about Ms. Lenfant and the way this campaign went that you think would be persuasive to our board in determining whether to go after charges to you. Because they may very well say, well, what did she do to him. So that's the reason I'm asking [-]
A. Well, I don't know [-]
Q. I'm trying to be somewhere in the middle on this.
A. Ms. Lenfant didn't do you know, has really never done anything to me. I believe that this information was is truthful, I believe that it's a matter of showing some difference in what Ms. Lenfant says and what she does and I felt like it was important for the community to have that information in order to come to a vote.