State Ex Rel. Guste v. Nicholls College Foundation

564 So. 2d 682, 1990 WL 91090
Supreme Court of Louisiana·Decided June 28, 1990·No. 90-C-0648·Published·Cited by 99 cases

Opinion

564 So.2d 682 (1990)

STATE of Louisiana, ex. rel. William J. GUSTE, Jr., Attorney General
v.
NICHOLLS COLLEGE FOUNDATION and Donald L. Peltier.

No. 90-C-0648.

Supreme Court of Louisiana.

June 28, 1990.
Rehearing Denied September 5, 1990.

*684 William Guste, Jr., Atty. Gen., James M. Ross and Stephen Irving, Asst. Attys. Gen., for plaintiff-applicant.

Daniel A. Cavell, for respondent-defendant Nicholls College Foundation and Peltier.

Weiss Gonzales, amicus curiae.

CALOGERO, Chief Justice.[*]

Until now, the Inspector General of the State of Louisiana has been unsuccessful in examining certain records of the Nicholls College Foundation, notwithstanding the provisions of the Public Records Act, LSA-R.S. 44:1, et seq. We granted writs in this case to review the Inspector General's contention that both lower courts erred in denying him the opportunity to examine records that he alleges are "public records", and thus, subject to inspection under LSA-R.S. 44:31. For the reasons that follow, we reverse the district court's granting defendants' motion for directed verdict and remand to the district court for further proceedings.

In connection with an investigation conducted at Nicholls State University, the Office of the Inspector General of the State of Louisiana sought to examine the financial records of the Nicholls College Foundation, a non-profit corporation, apparently on the belief that the Foundation had received "public funds" through a "donation" from the Nicholls State University Alumni Federation. The Federation is also a non-profit corporation. One David Morales, an auditor with the Inspector General's office, had previously inspected the records of the Federation and determined from that inspection and other sources that the Federation received "public funds" through a student "self-assessment" fee. The fee was approved by the student body of Nicholls State College in 1962, and had since been collected by Nicholls State from registering students (along with the students' tuition payments) for the benefit of the Nicholls State University Alumni Federation.

The assessed fee was initially 85¢ per semester in 1962. In 1969, the students voted to increase the fee to $1.35.[1] The assessment for the alumni federation is mandatory for all students registering for seven hours or more each semester at Nicholls State. The money is deposited, along with other fees and tuition, in Nicholls State's general operating account, and transferred to the Alumni Federation in one lump sum payment each semester after registration is completed.

In 1984, the Board of Directors of the Alumni Federation decided to give to the Nicholls College Foundation ten percent (10%) of all the student assessed fees received thereafter by the Federation from the University. This payment was apparently unsolicited, and the specific purpose not evident, at least insofar as is revealed by this record.

The Inspector General's auditor inspected the Federation's records in connection with the investigation at Nicholls State, without opposition from the Federation. Donald L. Peltier, Foundation president and a named defendant in this suit, however, refused to allow an inspection of the Foundation's records. The Attorney General of the State of Louisiana filed suit on behalf of the Inspector General to obtain a court order allowing examination of the Foundation's records pursuant to the Public Records Act. LSA-R.S. 44:1 et seq. Following presentation of the State's case at the trial on the merits, the district court *685 granted a directed verdict for the defendants, the Foundation and Peltier, finding that the State had not carried its burden of proving that the records were subject to inspection under the Public Records Law. The court of appeal affirmed. 558 So.2d 1232. We granted writs upon application of the Inspector General, represented here by the Attorney General. The Louisiana Press Association has filed a brief as Amicus Curiae in support of the Attorney General's position.

We find, for the reasons explained below, that the State did present sufficient evidence to present a prima facie case, and that the district court erroneously granted the defendants' motion for directed verdict.

The Federation, whose records were made available to the Inspector General at the latter's request, states in its Articles of Incorporation that its purpose is to "foster[], protect[ ], and promot[e] the welfare of Nicholls State University."[2]

The Foundation, whose records are the subject of this litigation, is also a tax-exempt, non-profit private corporation, like the Federation. Its purpose, as stated in its Articles of Incorporation, is to:

"[P]romote, stimulate and improve the educational, cultural, moral and material welfare of Nicholls State College ... to give financial aid to needy and deserving students; to promote and encourage research and scholastic excellence among the faculty members of Nicholls State College; ..."

The Public Records Law allows inspecting, reproducing or obtaining reproductions of any public record. LSA-R.S. 44:31. "Public records" include all books and records (a) used in the transaction of any business "performed by or under the authority of the constitution or laws of this state", or "under the authority of any ordinance, regulation, mandate, or order of any public body", or (b) all books and records "concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state." LSA-R.S. 44:1(A)(2).[3]

The Act defines "public body", in LSA-R.S. 44:1(A)(1), as "including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function."[4]

The Attorney General contends that the Foundation's records are subject to examination because the Foundation is a "public body" under the terms of LSA-R.S. 44:1(A)(1). Alternatively, he contends that if the Foundation is not a public body, the Inspector General is nonetheless entitled to examine the Foundation's books and records regarding receipt or payment of money received or paid under authority of the Constitution or laws of the state. The argument is, essentially, that the funds are public money paid by a public body, the Federation, under authority of the constitution or the laws of this state, even if paid to a private nonprofit corporation. He relies on Carter v. Fench, 322 So.2d 305 (La.App. 1st Cir.1975), writ denied, 325 So.2d 277 (La.1976), for the proposition that the student *686 fees transmitted from the University to the Federation, and then from the Federation to the Foundation, are public funds.[5]

On the other hand, the defendants allege that the Foundation is not a public body and the funds it receives from the Federation are not public funds. Rather, the transfer was a simple donation of money without responsibility on the part of the Foundation to perform any function in return. Furthermore, the funds are too far removed from the public purse, if in fact the funds were ever public, but rather is more akin to receipt of money for goods or services rendered as would be the case with an independent private, perhaps business, corporation. Additionally, the Foundation takes issue with the characterization of the Federation as a public body, and contends further that the Federation is an indispensable party, the determination of whose status cannot be made without the Federation's being a party.

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State Ex Rel. Guste v. Nicholls College Foundation, 564 So. 2d 682, 1990 WL 91090 (La. 1990).

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