STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 CA 0943 3.
ELAINE LEWNAU, CHRISTY MOLAND, TERRILYNN GILLIS, MARILYN SEIBERT, AND TOM ASWELL
VERSUS
THE BOARD OF SUPERVISORS OF SOUTHERN STATE UNIVERSITY AND AGRIBULTURAL AND MECHANICAL COLLEGE
Judgment Rendered. ' JAN 0 9 2070
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C681213
The Honorable Richard " Chip" Moore III, Judge Presiding
Winston G. DeCuir, Jr. Counsel for Defendant/Appellant Brandon DeCuir Board of Supervisors of Southern Baton Rouge, Louisiana University and Agricultural and Mechanical College
J. Arthur Smith, III Counsel for Plaintiffs/Appellees J. Arthur Smith, IV Elaine Lewnau, Christy Moland, Baton Rouge, Louisiana Terrilynn Gillis, Marilyn Seibert, and Tom Aswell
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ. THERIOT, J.
In this case involving alleged violations of the Open Meetings Law, La. R.S.
42: 11- 28, the Board of Supervisors of Southern University and Agricultural and
Mechanical College (" Southern") appeals a trial court judgment in favor of the
plaintiffs. For the reasons set forth herein, we affirm and award additional attorney
fees to the plaintiffs for defense of the appeal.
FACTS AND PROCEDURAL HISTORY
On November 20, 2018, current and former faculty members in the
Department of Speech -Language Pathology and Audiology at Southern' s Baton
Rouge campus, Elaine Lewnau, Christy Moland, Terrilynn Gillis, and Marilyn
Seibert, filed a joint grievance with Southern. The grievance sought to address
employment matters, including the termination of Moland and Gillis, the removal
of Lewnau as the Department of Speech -Language Pathology and Audiology' s
Graduate Program Director, the reduction of Seibert' s regular teaching salary, and
a number of allegedly illegal workplace practices.
On December 19, 2018, Tracie J. Woods, Associate Vice President for
Human Resources for the Southern University System, notified Lewnau that
Southern University System President -Chancellor Ray Belton had requested that
the Southern University System Grievance Committee (" Grievance Committee")
review the faculty members' joint grievance and make recommendations thereon.
According to Woods' s letter, the Grievance Committee would review the
grievance, and a grievance hearing would be scheduled in 2019.
Attached to the notice from Woods regarding the Grievance Committee
review was a copy of Appendix F to the Faculty Handbook, entitled " Faculty
Grievance Procedures." According to the Faculty Grievance Procedures, the
Board of Supervisors delegated its authority to handle certain categories of
employee grievances to Southern' s Baton Rouge campus, while reserving other
2 types of grievances to itself and the System President. For those grievances for
which complete administrative authority has been delegated to the Baton Rouge
campus, the employee' s right to administrative review of her grievance will be
fully exhausted following the decision of the Chancellor of the Baton Rouge
campus.' The Faculty Grievance Procedures states that the Chancellor of the
Baton Rouge campus shall appoint a Grievance Committee2 to serve as a fact-
finding body with regard to employee grievances and sets forth guidelines and
procedures for hearings of the Grievance Committee. According to the procedures
outlined therein, the Grievance Committee will make a recommendation to the
Chancellor of the Baton Rouge campus for resolution of the grievance following a
hearing. In grievances where the Board has delegated complete authority to the
Baton Rouge Campus, there is no right to appeal the decision of the Chancellor.
On February 19, 2019, Lewnau, Moland, Gillis, and Seibert each received an
email from Marla Dickerson, Chairperson of the Grievance Committee, advising
that the Grievance Committee would convene on March 18 and 19, 2019 to hear
the joint grievance and requesting that they clear their schedules on those dates.
The email further advised " you have a right to submit a witness list, documentary
support, and evidentiary support in support of your position."
Lewnau, Moland, Gillis, and Seibert attended the March 18 hearing in order
to present their grievances to the committee. Tom Aswell, a professional journalist
and investigative reporter who publishes an internet blog known as " The Louisiana
Voice," in which he reports on matters involving Louisiana government and the
activities of its officials, also attended the Grievance Committee meeting in order
to report on the meeting through his blog. At the outset of the meeting, the
I Although the Faculty Grievance Procedures refers to both the System President and the Chancellor of the Baton Rouge campus, at some point prior to the filing of the joint grievance herein, these roles were combined into a single position, called the " President -Chancellor." The Faculty Grievance Procedures provided to Plaintiffs and applied to their joint grievance was apparently not updated to reflect the newly combined President -Chancellor position, creating some confusion in the application of the procedures to Plaintiffs' joint grievance. 2 Although the Faculty Grievance Procedures refers to the Grievance Committee as a " Grievance Panel," it is consistently referred to elsewhere in the record as the " Grievance Committee," and will be referred to as such herein.
3 chairperson asked Lewnau, Moland, Gillis, and Seibert whether they wished to
have an open or closed meeting, and each responded, through counsel, that they
wished to have an open meeting. Nevertheless, the chairperson announced that the
meeting would be closed, as the Grievance Committee had previously voted in
private to have a closed meeting. Aswell was involuntarily removed from the
meeting room and not allowed to observe the proceedings, and following brief
opening statements given by each, Lewnau, Moland, Gillis, and Seibert, along with
their attorney, were involuntarily removed from the meeting room and not allowed
to observe or participate in the meeting.
On March 25, 2019, Lewnau, Moland, Gillis, Seibert, and Aswell
hereinafter " Plaintiffs") filed a petition against Southern pursuant to La. R.S.
42: 25( C) 3, alleging that Southern' s Grievance Committee violated the Louisiana
Constitution and the Open Meetings Laws when it voted in private to close the
3 Louisiana Revised Statutes 42: 25( C) provides that any person who has been denied any right conferred by the Open Meetings Law, or who has reason to believe that the provisions of the Open Meetings Law have been violated, may institute enforcement proceedings. 4 Plaintiffs alleged that the committee violated La. Const. Art. 12, § 3, which provides that "[ n] o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law." 5 Plaintiffs alleged that the committee' s vote to close the meeting, as well as the exclusion of the public from the meeting, violated La. R.S. 42: 14( A), ( B), and ( C), 16, and 17( A)( 1), which
provide, in pertinent part:
14. Meetings of public bodies to be open to the public
A. Every meeting of any public body shall be open to the public unless closed pursuant to R. S. 42: 16, 17, or 18.
B. Each public body shall be prohibited from utilizing any manner of proxy voting procedure, secret balloting, or any other means to circumvent the intent of this Chapter.
C. All votes made by members of a public body shall be viva voce and shall be recorded in the minutes, journal, or other official, written proceedings of the body, which shall be a public document.
16. Executive Sessions
A public body may hold executive sessions upon an affirmative vote, taken at an open meeting for which notice has been given pursuant to R.S. 42: 19, of two- thirds of its constituent members present. An executive session shall be limited to matters allowed to be exempted from discussion at open meetings by R.S. 42: 17; however, no final or binding action shall be taken during an executive session.
4 meeting to the public and when it removed the Plaintiffs and their attorney from
the meeting. As such, Plaintiffs requested an injunction prohibiting Southern from
applying, enforcing, or implementing any actions taken that were in violation of
the Louisiana Constitution and the Open Meetings Law; a declaration that actions
taken by the committee in violation of the law are null and void, as authorized by
La. R.S. 42: 24; and civil penalties, attorney fees, and costs, as authorized by La.
R.S. 42: 26 and 28.
Southern filed an exception of no cause of action, asserting that the Open
Meetings Law is inapplicable to the Grievance Committee, since the committee is
not a " public body." Southern argued that the committee, which is appointed by
the President -Chancellor and whose sole authority is to make a recommendation to
the President -Chancellor, does not fit within the definition of "public body" in La.
R.S. 42: 13( A)(3).
The exception was taken under advisement following a hearing, and the trial
court later denied Southern' s exception raising the objection of no cause of action,
explaining:
The vote of each member on the question of holding such an executive session and the reason for holding such an executive session shall be recorded and entered into the minutes of the meeting. Nothing in this Section or R. S. 42: 17 shall be construed to require that any meeting be closed to the public, nor shall any executive session be used as a subterfuge to defeat the purposes of this Chapter.
17. Exceptions to open meetings
A. A public body may hold an executive session pursuant to R.S. 42: 16 for one or more of the following reasons:
1) Discussion of the character, professional competence, or physical or mental health of a person, provided that such person is notified in writing at least twenty- four hours, exclusive of Saturdays, Sundays, and legal holidays, before the scheduled time contained in the notice of the meeting at which such executive session is to take place and that such person may require that such discussion be held at an open meeting. However, nothing in this Paragraph shall permit an executive session for discussion of the appointment of a person to a public body or, except as provided in R.S. 39: 1593( C)( 2)( c), for discussing the award of a public In cases of extraordinary emergency, written notice to such contract.
person shall not be required; however, the public body shall give such notice as it deems appropriate and circumstances permit.
5 T] he Grievance Committee at issue herein is making recommendations to the President -Chancellor as to whether
employment should be maintained and, if so, the amount of
compensation. [ This] type of committee action is too important to be made in a dark room, where no one other than committee members know what factors are being considered. The actions taken by the Grievance Committee served to slam the door on Article XII, § 3 of the 1974 Louisiana Constitution and our democratic process.
Plaintiffs' request for a preliminary injunction and declaratory judgment was
heard by the trial court on May 6, 2019, following which the trial court took the
matter under advisement.6 The trial court rendered judgment on May 13, 2019,
reiterating its earlier ruling that the Grievance Committee constituted a " public
body" for purposes of the Open Meetings Law, and finding that the Grievance
Committee had violated the Open Meetings Law and Art. 12, § 3 of the Louisiana
Constitution. The trial court judgment declared that all actions taken by the
Grievance Committee from March 18 through the date of judgment, and all future
actions affecting Plaintiffs to be taken as a consequence of or resulting from
evidence introduced in any hearing before the Grievance Committee from March
18 to the date of judgment, are null and void. Further, the trial court issued a
preliminary injunction enjoining Southern from enforcing, applying, or
implementing any action taken in violation of the Open Meetings Law and the
Louisiana Constitution. Finally, the trial court awarded Plaintiffs $ 8, 400. 00 in
attorney fees, statutory damages in the amount of $5, 000. 00, and court costs of
Southern filed a devolutive appeal from the May 13, 2019 trial court
judgment. On appeal, Southern argues that the trial court erred in concluding that
the Grievance Committee was a public body, and based on that finding, granting
6 There was also a motion to consolidate before the court at the May 6 hearing; however, the trial court continued the hearing on the motion to consolidate to a later date at the request of Southern' s counsel. Plaintiffs' motion sought to consolidate this suit with another suit filed by Plaintiffs against Southern and Chairperson Dickerson, alleging violations of the Louisiana Public Records Law by the Grievance Committee and Dickerson arising out of Plaintiffs' request for copies of the Grievance Committee' s agenda, minutes, transcript, and audio recordings from its March 18 and 19, 2019 hearings. The motion to consolidate was eventually granted by the trial court on May 28, 2019.
no declaratory and injunctive relief, as well as damages and attorney fees. Plaintiffs
answered the appeal and requested additional attorney fees and costs for the
additional work required to defend the appeal.
DISCUSSION
No person shall be denied the right to observe the deliberations of public
bodies and examine public documents, except in cases established by law. La.
Const. art. XII, § 3. In connection with La. Const. art. XII, § 3, the Louisiana
Legislature enacted the Open Meetings Law. The Open Meetings Law provides
that " It is essential to the maintenance of a democratic society that public business
be performed in an open and public manner and that the citizens be advised of and
aware of the performance of public officials and the deliberations and decisions
that go into the making of public policy. Toward this end, the provisions of [the
Open Meetings Law] shall be construed liberally." La. R.S. 42: 12.
The primary purpose of the Open Meetings Law and the constitutional
provision ensuring the right of citizens to participate in the deliberations of public
bodies is to protect citizens from secret decisions made without any opportunity for
public input. Organization of United Taxpayers and Civic Associations of
Southeast Baton Rouge, Inc. v. Louisiana Hous. Fin. Agency, 1996- 2406, p. 5
La.App. 1 Cir. 11/ 7/ 97), 703 So.2d 107, 110, writ denied, 1997- 3007 ( La. 2/ 6/ 98),
709 So. 2d 745. The public has a right to know what is being considered and is
entitled to direct participation in deliberations as styled by La. Const. art. XII, § 3.
Pittman v. Washington Parish Reservoir District of State, 2005- 2278 ( La.App. I
Cir. 12/ 20/ 06), 2006WL3734644, * 3, citing Wagner v. Beauregard Parish Police
Jury, 525 So.2d 166, 169 ( La.App. 3 Cir. 1988).
Under the Open Meetings Law, meetings of public bodies are to be open to
the public unless closed in accordance with the provisions of the Open Meetings
Law. La. R.S. 42: 14. Southern' s arguments on appeal are all based on the premise
7 that the Grievance Committee is not a " public body," and therefore not subject to
the Open Meetings Law. A " public body," for purposes of the Open Meetings
Law, is defined in La. R.S. 42: 13( A)(3) as:
V] illage, town, and city governing authorities; parish governing authorities; school boards and boards of levee and port
commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy
making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.
Southern' s Board of Supervisors was created by Article VIII, § 7 of the
Louisiana Constitution and granted exclusive administrative power to supervise
and manage the institution, statewide agricultural program, and other programs
administered through its system. See Student Government Association of
Louisiana State University and Agricultural and Mechanical College, Main
Campus, Baton Rouge v. Board of Supervisors of Louisiana State University and
Agricultural and Mechanical College, 262 La. 849 ( La. 1972). Southern' s Board
of Supervisors falls under the definition of " public body" as a " state, parish,
municipal, or special district boards, commissions, or authorities, and those of any
political subdivision thereof, where such body possesses policy making, advisory,
or administrative functions." Thus, in order for the Grievance Committee to
qualify as a public body under the Open Meetings Law, it must be a " committee or
subcommittee" of Southern' s Board of Supervisors. The Open Meetings Law does
not define " committee or subcommittee," nor does it set forth any specific factors
to be used in determining whether a body is a committee or subcommittee of any
of the bodies enumerated in the statute.
In Louisiana High School Athletics Association, Inc. v. State, 2012- 1471, pp.
31- 32 ( La. 1/ 29/ 13), 107 So. 3d 583, 606, the Louisiana Supreme Court considered
the meaning of "committee or subcommittee" for purposes of determining whether a particular entity is a public body. In that case, the supreme court held that it must
ascertain the intent of the legislature using the principles of statutory construction
in determining whether a particular entity is a public body for the purpose of the
Open Meetings Law. Those principles of statutory construction are as follows:
when a law is clear and unambiguous and its application does not lead to absurd
consequences, the law shall be applied as written and no further interpretation may
be made in search of the legislature' s intent. La. C. C. art. 9, Lockett v. State,
Department of Transportation and Development, 2003- 1767, p. 3 ( La. 2/ 25/ 04),
869 So. 2d 87, 90- 91. However, when the language of the law is susceptible of
different meanings, it must be interpreted as having the meaning that best conforms
to the purpose of the law, and the words must be given their generally prevailing
meaning. La. C.C. arts. 10 and 11, Lockett, 2003- 1767 at p. 4, 869 So.2d at 91.
When the words of a law are ambiguous, their meaning must be sought by
examining the context in which they occur and the text of the law as a whole, and
laws on the same subject matter must be interpreted in reference to each other. Id.
In Louisiana High School Athletics Association, Inc., the supreme court concluded
that because the appropriate starting point for statutory interpretation is the
language of the statute itself, it is error for a court to look beyond the plain
language of the statute in determining whether an entity is a committee or
subcommittee of any other bodies enumerated in the definition of "public body."
The supreme court noted that Black's Law Dictionary defined the term
committee" as a " subordinate group to which a deliberative assembly or other
organization refers business for consideration, investigation, oversight, or action."
Black' s Law Dictionary 273 ( 9th ed. 2009). The supreme court concluded that
under a plain reading of the Open Meetings Law's definition of "public body," the
phrase " committee or subcommittee of any of these bodies" refers to a committee
or subcommittee formed by the public body itself. Louisiana High School
E Athletics Association, Inc., 2012- 1471 at pp. 31- 32, 107 So. 3d at 606; see also
Wayne v. Capital Area Legal Services Corporation, 2013- 2036 ( La.App. 1 Cir.
5/ 2/ 14), 145 So. 3d 427, 433, writ denied, 2014- 1149 ( La. 9/ 19/ 14), 149 So. 3d
243. Although the supreme court acknowledged that the Louisiana High School
Athletics Association performs a major policy-making, advisory, and
administrative function in an area that is within the primary control of a public
body, the supreme court found that it was not a committee or subcommittee of a
public body since there was no evidence that it was formed by a public body or
that a public body has ever referred business to it for its consideration,
investigation, oversight, or action. As such, the supreme court held that the
Louisiana High School Athletics Association is not a public body for purposes of
the Open Meetings Law. Louisiana High School Athletics Association, Inc., 2012-
1471 at pp. 32- 33, 107 So.3d at 606- 07.
In this case, although the Grievance Committee was appointed by the
President -Chancellor, the authority and direction to do so is conferred by the Board
of Supervisors. The Faculty Grievance Procedures states that a grievant has the
right to request that her grievance be transmitted to a Grievance Committee, at
which time the Chancellor " shall appoint" faculty members and other unclassified
staff members to a Grievance Committee, if a standing Grievance Committee does
not already exist. Thus, although the individual members of the Grievance
Committee were appointed by the President -Chancellor, the Grievance Committee
was formed under the authority and direction of a public body, making it
distinguishable from the entity in Louisiana High School Athletics Association,
Inc. The Grievance Committee is further distinguishable from the entity in
Louisiana High School Athletics Association, Inc. in that the evidence in the record
before us on appeal establishes that the Board of Supervisors ( or the President -
Chancellor, under the authority and at the direction of the Board of Supervisors)
10 refers business ( employee grievances) to the Grievance Committee for
consideration, investigation, oversight, or action.
Considering that the primary purpose of the Open Meetings Law is to
protect citizens from secret decisions made without any opportunity for public
input, as well as the statutory imperative in La. R.S. 42: 12( A) to construe the
provisions of the Open Meetings Law liberally, we conclude that the Grievance
Committee is a committee or subcommittee of the Southern Board of Supervisors,
and therefore is a public body under the definition in La. R.S. 42: 13( A)(3). See In
re Edward Wisner Donation, 2014- 0027 ( La.App. 4 Cir. 9/ 18/ 14), 150 So. 3d 391,
402, writs denied, 2014- 2135, 2014- 2150 ( La. 2/ 13/ 15), 159 So. 3d 463 ( trust
advisory committee, formed by the City Council and given authority to control all
matters related to the supervision, direction, and administration of a charitable trust
endowed to the city, was a public body under the plain language of the Open
Meetings Law).
Because we have concluded that the trial court did not err in finding that the
Grievance Committee was a public body under the Open Meetings Law,
Southern' s arguments on appeal that the trial court erred in granting Plaintiffs'
request for injunctive and declaratory relief and awarding attorney fees and
damages because the Grievance Committee was not subject to the provisions of the
Open Meetings Law are without merit.
Plaintiffs also answered the appeal, requesting an additional award of
attorney fees for defending Southern' s appeal. An increase in attorney fees is
usually awarded where a party who was awarded attorney fees by the trial court is
forced to and successfully defends an appeal. Aswell v. Division ofAdministration,
State, 2015- 1851, p. 10 ( La.App. 1 Cir. 6/ 3/ 16), 196 So. 3d 90, 96, writ denied,
2016- 1263 ( La. 11/ 7/ 16); 209 So. 3d 102. The award of additional attorney fees is
to keep the appellate judgment consistent with the underlying judgment. To
11 determine the amount of attorney fees, factors that are considered include " the skill
Maldonado exercised by the attorney and the time and work required on appeal."
v. Cannizzaro, 2018- 0177, p. 14 ( La.App. 4 Cir. 10/ 10/ 18), 257 So. 3d 733, 743,
writ denied, 2018- 1749 ( La. 1/ 8/ 19), 260 So. 3d 591. Since Plaintiffs have
successfully defended this appeal, we award additional attorney fees for the work
performed defending the appeal in the amount of $1, 400. 00.
CONCLUSION
For the reasons set forth herein, the May 13, 2019 judgment of the trial court
is affirmed. Additional attorney fees in the amount of $1, 400. 00 for defense of this
appeal are awarded to Plaintiffs, Elaine Lewnau, Christy Moland, Terrilynn Gillis,
Marilyn Seibert, and Tom Aswell, and costs of this appeal in the amount of
1, 804. 00 are assessed to the Board of Supervisors of Southern University and
Agricultural and Mechanical College.
AFFIRMED; ANSWER TO APPEAL GRANTED.