Fulda v. State, Office of Public Health

668 So. 2d 1381, 95 La.App. 1 Cir. 1740, 1996 La. App. LEXIS 491, 1996 WL 95125
CourtLouisiana Court of Appeal
DecidedFebruary 23, 1996
DocketNo. 95 CW 1740
StatusPublished
Cited by1 cases

This text of 668 So. 2d 1381 (Fulda v. State, Office of Public Health) 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
Fulda v. State, Office of Public Health, 668 So. 2d 1381, 95 La.App. 1 Cir. 1740, 1996 La. App. LEXIS 491, 1996 WL 95125 (La. Ct. App. 1996).

Opinion

|2FOIL, Judge.

We granted supervisory writs in this case to review a decision of the Louisiana Commission on Ethics for Public Employees which held that a proposed contract with a state agency was prohibited by the Ethics Code. After a thorough review of the record, we vacate that ruling.

FACTUAL AND PROCEDURAL BACKGROUND

Charles Fulda, III, relator, sought the opinion of the Commission on Ethics for Public Employees (Commission) regarding the legality of a contract he was offered by the State of Louisiana, Office of Public Health (OPH) to run a research program. The factual background forming the basis for this litigation is not in dispute. Mr. Fulda, who had many years of experience working in various computer related fields, was employed by the Jefferson Project from August 17, 1994 until December 22, 1994 as a computer specialist. The Jefferson Project was retained as a contractor by OPH to run the Emergency Public Health Information Surveillance System (EPHISS). The EPHISS project, which is a computerized data system [1383]*1383utilized to obtain information from hospital emergency rooms throughout the State of Louisiana, is funded through the federal government and is run by OPH and the Center of Disease Control in Atlanta, Georgia. The project encourages hospitals to join the program, and once on board, the hospitals are provided with computer equipment and training. The information collected by virtue of the EPHISS system is utilized for surveillance of injuries and illnesses. Some of the goals of the EPHISS program are to increase knowledge of disaster related injuries and illnesses and target populations for possible interventions.

While working for the Jefferson Group on the EPHISS project, Mr. Fulda was responsible for presenting the EPHISS program to hospitals. Once a hospital agreed to join the program, Mr. Fulda installed the computer equipment and connected the software to run with the hospital’s main computers. He was also responsible for training hospital personnel, recommending hardware and software, repairing the software and assessing the data downloading process.

|3On December 22, 1994, Jefferson’s contract with OPH ended. To keep the EPH-ISS project operational until another contractor could be retained, OPH offered Mr. Fulda two temporary restricted appointment contracts. The provisional appointments were effective from December 23, 1994 until June 22, 1995. Pursuant to the two restrictive appointments, Mr. Fulda continued to run the EPHISS project.

Prior to the end of the second restricted appointment, OPH offered Mr. Fulda a contract to run the EPHISS project. During negotiations on the contract, the issue was raised regarding potential Ethics Code violations. Mr. Fulda filed a formal request with the Commission on June 27,1995, asking that the Commission issue an advisory opinion on the legality of the proposed contract.1 By letter dated July 25, 1995, Mr. Fulda was informed that the Commission concluded that Section 42:1121 B of the Ethics Code prohibited him from entering into the contract. Specifically, the Commission ruled that Mr. Fulda was a “public employee” for the purposes of the Ethics Code at the time he worked for OPH on the two temporary multi-restricted appointments. The Commission then concluded that Mr. Fulda was prohibited from entering into the contract by virtue of La.R.S. 42:1121 B because the proposed contract would require him to perform for OPH, on a contractual basis, the same services he performed while employed by OPH pursuant to the temporary assignments.

Mr. Fulda applied for supervisory writs to this court, and we granted his request to review the correctness of the Commission’s ruling which effectively barred Mr. Fulda from entering into a contract with OPH to run the EPHISS Project.

SUPERVISORY REVIEW OF ADVISORY OPINION

OPH contends that this court does not have jurisdiction to review an advisory opinion issued by the Commission. It posits that Mr. Fulda’s application is premature and that there is no factual case or controversy for this court to review. However, the Commission’s identical challenge to judicial review of its advisory opinions has been consistently rejected by this court. La.R.S. 42:1142 expressly vests this court with supervisory jurisdiction over preliminary, procedural or intermediate actions or rulings of the Ethics Commission. The law is settled that an advisory opinion rendered by the Commission is a preliminary or intermediate action or ruling by the ethics body within the meaning of La.R.S. 42:1142, and as such, it is subject to this court’s supervisory jurisdiction. Louisiana Insurance Guaranty Association v. Commission on Ethics for Public Employees, 95-0021 (La.App. 1st Cir. 5/5/95); [1384]*1384656 So.2d 670, writ denied, 95-1833 (La. 11/13/95); 662 So.2d 467; City of Baton Rouge v. Commission on Ethics for Public Employees, 94-2480 (La.App. 1st Cir. 5/5/95); 655 So.2d 457, 459, writ denied, 95-1423 (La. 9/22/95); 660 So.2d473; Board of Trustees of Employees’ Retirement System of City of Baton Rouge v. Commission on Ethics for Public Employees, 95-0062 (La.App. 1st Cir. 5/5/95); 655 So.2d 1355, 1356, writ denied, 95-1417 (La. 9/22/95); 660 So.2d 472. See also In re Regions Banks of Louisiana and C.C. Dabadie, 95-0061 (La.App. 1st Cir. 12/15/95); 665 So.2d 824, (wherein this court, without discussion, reviewed an advisory opinion of the Ethics Commission). Accordingly, the challenged advisory opinion issued by the Ethics Commission is properly before this court for supervisory review.

LEGALITY OF THE PROPOSED CONTRACT

The Commission found that the proposed Fulda-OPH contract violated the section of the Code of Governmental Ethics which sets forth rules regulating the conduct of public servants following the termination of the public service. La.R.S. 42:1121 B, the provision relied on by the Commission, states as follows:

B. General rule for other public employees. No former public employee shall, for a period of two years following the termination of his public employment, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which such former public employee participated at any time during his public employment and involving the governmental entity by which he was formerly employed, or for a period of two years following termination of his public employment, render, on a |5contractual basis to or for the agency with which he was formerly employed, any service which such former public employee had rendered to the agency during the term of his public employment.

The Commission also relies on the broad definition of the term “public employee” found in the ethics law. The term “public employee” under La.R.S. 42:1102(18)(e) and (d) encompasses those engaged in the performance of a governmental function, as well as those under the supervision of an elected official or another employee of a governmental entity.

It is the Commission’s position that the term “public employee” is broad enough to include Mr. Fulda’s temporary restrictive appointments within its scope. The Commission contends that Mr. Fulda’s restrictive appointments fell under the literal language of La.R.S. 42:1121 so as to preclude him from “contracting back” with OPH to perform the same services he did while he was employed by OPH pursuant to the temporary emergency appointments.

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Cite This Page — Counsel Stack

Bluebook (online)
668 So. 2d 1381, 95 La.App. 1 Cir. 1740, 1996 La. App. LEXIS 491, 1996 WL 95125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulda-v-state-office-of-public-health-lactapp-1996.