Bagert v. State, Board of Ethics for Elected Officials

588 So. 2d 1264, 1991 La. App. LEXIS 2862, 1991 WL 226500
CourtLouisiana Court of Appeal
DecidedOctober 18, 1991
DocketNo. CW 91 0166
StatusPublished
Cited by2 cases

This text of 588 So. 2d 1264 (Bagert v. State, Board of Ethics for Elected Officials) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bagert v. State, Board of Ethics for Elected Officials, 588 So. 2d 1264, 1991 La. App. LEXIS 2862, 1991 WL 226500 (La. Ct. App. 1991).

Opinions

LANIER, Judge.

This action is an application for supervisory relief by an elected public servant from an adverse advisory opinion rendered by the Board of Ethics for Elected Officials (Board). La. Const. of 1974, art. V, § 10; La.R.S. 42:1142(A); Board of Commissioners, Fifth Louisiana Levee District v. Commission on Ethics for Public Employees, 484 So.2d 845 (La.App. 1st Cir.), writ denied, 487 So.2d 440 (La.1986).

FACTS

The relator, Barry D. Bagert, is a member of the St. Tammany Parish Police Jury (Parish). In 1988, Bagert acquired a controlling interest in Jade Landscapes, Inc. (Jade), a corporation engaged in grass cutting and landscaping as a business. Jade had a contract to perform grass cutting services for the Slidell Memorial Hospital which was operated by St. Tammany Parish Hospital Service District No. 2 (District).

The District was created by the legislative branch of the State of Louisiana in Act 180 of 1984 (Act). La. Const, of 1974, art. III, § 1(A) and art. YI, § 19. It was not created by the Parish pursuant to the authority of La.R.S. 46:1051 et seq.1 The District is governed by a board of seven commissioners. The Parish appoints five commissioners to represent specified geographical areas and it appoints one commissioner to represent the City of Slidell from a nomination submitted by the governing authority of the City of Slidell. These six commissioners then appoint the seventh commissioner from the membership of the Slidell Memorial Hospital medical staff. The Parish may revoke the appointment of any commissioner for explicitly stated cause upon a majority vote of a quorum of its membership. The status and powers of the District are set forth in Section 8(A) of the Act as follows:

[1266]*1266Section 8. Corporate status and powers of each district; evidence of acts and proceedings.
A. Each hospital service district created in this Act shall constitute a body corporate in law with all the powers of a corporation, shall have perpetual existence, shall have the power and right to incur debts and contract obligations, to sue and be sued, and to do and perform any and all acts in its corporate capacity and its corporate name necessary and proper for the carrying out of the objects and purposes for which the hospital service district was created. Such hospital service district shall have the right and power of expropriating property for the purpose of acquiring land for any purpose that it may find necessary in the operation of a hospital service district and may acquire by donation or purchase, any existing hospital facility in the district. It shall also have the power and authority to acquire any and all necessary equipment and buildings for the purpose of performing the objects for which it is formed, and shall own all sites and physical facilities, which are acquired either by donation, purchase, expropriation, exchange, or otherwise, in full ownership.

In addition, the Act gives the District the powers to levy taxes and issue bonds. Finally, Section 12 of the Act provides that “This Act, being intended to carry out a function of the state to protect the health and welfare of the inhabitants of the state to be affected thereby, shall be liberally construed by the courts to effect its purposes.” (Emphasis added).

By letter dated November 13, 1989, Ba-gert asked the Board for an advisory opinion on whether or not he was in violation of the Code of Governmental Ethics, La.R.S. 42:1101 et seq. On March 20, 1990, the Board responded in a letter which advised that “the future rendition of such services is prohibited by Section 1113 A of the Code of Governmental Ethics.” La.R.S. 42:1113(A) provides, in pertinent part, as follows:

No public servant ... or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction that is under the supervision or jurisdiction of the agency of such public servant. (Emphasis added)

The definitions of “agency”, “controlling interest” and “public servant” for purposes of La.R.S. 42:1113(A) are found in La.R.S. 42:1102(2)(f), (8) and (19). Bagert requested that the Board reconsider its opinion.2 On March 28, 1990, the Board took this request under advisement. On August 17, 1990, the Board rendered an opinion on reconsideration that “concluded that Section 1113 A of the Code of Ethics would prohibit Mr. Bagert as well as the corporation in which he owns a controlling interest from entering into the lawn care services contract with the St. Tammany Parish Hospital Service District No. 2.” This opinion was issued on October 9, 1990.

This request for a supervisory writ followed.

SUPERVISION OR JURISDICTION OF THE PARISH OVER THE JADE-DISTRICT CONTRACT

Bagert asserts the Board erred in finding the District operates within the agency of the Parish and is under the Parish’s supervision and jurisdiction. He contends that the District was created by the State, and not by the Parish; Bagert is an elected official of the Parish, and not the State; and, therefore, it is permissible for Bagert (and Jade) to contract with the District. The Board argues that because the Parish has the authority to appoint six of the District’s commissioners and has the power to remove commissioners for cause, it exercises “supervision and oversight with regard to the operation of the District” and can “take responsive action where appropriate”. The Board asserts that “such power suggests the conclusion that the District is an entity within the political subdivi[1267]*1267sion of the parish government” and, therefore, La.R.S. 42:1113(A) is applicable. Both sides cite In re Schneckenburger, 518 So.2d 497 (La.1988) and In re Beychok, 495 So.2d 1278 (La.1986) in support of their positions.

The issue in this writ is a question of statutory interpretation. The following rules found in Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1st Cir.1984) are applicable:

When a law or ordinance is clear and free from all ambiguity, it must be given effect as written....
When interpreting a law (ordinance), the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions.

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Cite This Page — Counsel Stack

Bluebook (online)
588 So. 2d 1264, 1991 La. App. LEXIS 2862, 1991 WL 226500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bagert-v-state-board-of-ethics-for-elected-officials-lactapp-1991.