Opinion
2023 CA 0763
01-11-2024
BRANDON WILLIAMS v. CITY OF BATON ROUGE
Dawn Guillot, David M. Lefeve, Michael P. Schillage Attorneys for Defendant/1st Appellant City of Baton Rouge, Parish of East Baton Rouge. Clifton J. Ivey, Jr. Attorney for Intervenor/2nd Appellant Brandon O'Neal, as president of the Baton Rouge Police Local No. 237 of the International Union of Police Associations, AFL-CIO. Stephen M. Irving Attorney for Plaintiff-Appellee Brandon Williams
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT, SECTION 31 IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 723,557 HONORABLE TIFFANY FOXWORTH-ROBERTS, JUDGE PRESIDING
Dawn Guillot, David M. Lefeve, Michael P. Schillage Attorneys for Defendant/1st Appellant City of Baton Rouge, Parish of East Baton Rouge.
Clifton J. Ivey, Jr. Attorney for Intervenor/2nd Appellant Brandon O'Neal, as president of the Baton Rouge Police Local No. 237 of the International Union of Police Associations, AFL-CIO.
Stephen M. Irving Attorney for Plaintiff-Appellee Brandon Williams
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
GREENE, J.
This is an appeal from a judgment on the pleadings that found that an individual could simultaneously hold an office with both the Baton Rouge Municipal Fire and Police Civil Service Board (Civil Service Board) and the Louisiana Housing Corporation (LHC) without violating La. R.S. 33:2476. After review, we reverse.
FACTS AND PROCEDURAL HISTORY
Brandon Williams, the appellee, is an appointed member of the Civil Service Board and its chairman. He is also a board member of the LHC. After concerns were raised to Mr. Williams by members of the Baton Rouge Metropolitan Council about holding these roles simultaneously, Mr. Williams filed a petition for declaratory judgment on September 15, 2022, naming as defendant the City of Baton Rouge and Parish of East Baton Rouge (City/Parish). Mr. Williams asked for a declaratory judgment that he was not in violation of La. R.S. 33:2476 by serving on both boards. The City/Parish filed an answer, stating that the LHC is "wholly a creature of the state." The City/Parish maintained that a judicial determination of the statutes at issue was in the best interest of Mr. Williams and the City/Parish.
Mr. Williams filed a motion for judgment on the pleadings on October 14, 2022. On April 10, 2023, Brandon O'Neal, as president of the Baton Rouge Police Local No. 237 of the International Union of Police Associations, AFL-CIO, filed a petition for intervention. O'Neal maintained that he joined the City/Parish in resisting Mr. Williams' petition for declaratory judgment, asserting that the LHC is a public body and an instrumentality of the state.
After a hearing on April 10, 2023, the district court granted Mr. Williams' motion and found that Mr. Williams was not in violation of La. R.S. 33:2476 by holding office as a member of the Civil Service Board and also holding office on the board of the LHC. The judgment was signed on April 21, 2023.
The City/Parish and Mr. O'Neal appealed that judgment. On appeal, the City/Parish and Mr. O'Neal maintain that the district court erred, as the LHC is expressly delineated as a public body corporate and an instrumentality of the state, and its board members are public officials. The City/Parish and Mr. O'Neal assert that an individual may not serve on the Civil Service Board and the LHC simultaneously without violation of La. R.S. 33:2476. In his brief, Mr. Williams maintains that the LHC is a separate corporate entity owned by the state, but not an agency of the state or a political subdivision.
STANDARD OF REVIEW
The trial court granted Mr. Williams' motion for judgment on the pleadings. Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial. For the purposes of this motion, all allegations of fact in mover's pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party's pleadings shall be considered true. La. C.C.P. art. 965. A motion for judgment on the pleadings tests the sufficiency of a party's allegations. It presents solely a question of law, which is reviewed de novo without deference to the legal conclusions of the trial court. Bodenheimer v. State, 2019-1561 (La.App. 1 Cir. 10/21/21), 332 So.3d 105, 110.
DISCUSSION
Louisiana Revised Statutes 33:2476 provides in pertinent part:
A. A municipal fire and police civil service board is created in the municipal government. The board shall be composed of five members who shall serve without compensation. The board shall have a chairman, vice-chairman, and a secretary. The domicile of the board shall be in the municipality it serves.
B. (1)(a) To be eligible for appointment or to serve as a member of a board, a person shall be a citizen of the United States of America, a resident of the municipality in which he is to serve for at least five years next preceding his appointment, and, at the time of his appointment, shall be a qualified voter of the municipality.
* * *
(2)(c)(i) No member of a board shall be a candidate for nomination or election to any public office or hold any other public office or position of public employment, except that of notary public, a military or naval official office, or that of a municipal fire or police department which is expressly required by the provisions of this Part.
Louisiana Revised Statutes 33:2476(B)(2)(c)(i) prohibits an individual from serving on the Civil Service Board and holding any other public office which does not meet the limited exceptions provided therein.
The term "public office" means any state, district, parish or municipal office, elective or appointive, or any position as a member on a board or commission, elective or appointive, when the office or position is established by the constitution or laws of this state. La. R.S 42:1. "Public officer" is any person holding a public office in this state. Id.
In order to determine whether a board member of the LHC is a public officer, we must determine whether the LHC is a public entity. In Property Insurance Association of Louisiana v. Theriot, 2009-1152 (La. 3/16/10), 31 So.3d 1012, 10141015, the Louisiana Supreme Court stated that four factors must be met in order for a court to determine that an entity is public. These factors are (1) whether the entity was created by the legislature, (2) whether its powers were specifically defined by the legislature, (3) whether the property of the entity belongs to the public, and (4) whether the entity's functions are exclusively of a public character and performed solely for the public benefit. Accordingly, we address each factor.
Was the LHC created by the legislature?
Louisiana Revised Statutes 40:600.88 provides "[t]here is hereby created a public body corporate and politic known as the Louisiana Housing Corporation." It also provides that the LHC "shall be an instrumentality of the state." Thus, we find that the legislature created the LHC.
Are the LHC's powers specifically defined by the legislature?
Louisiana Revised Statutes 40:600.91 provides an exhaustive detailed list of the powers and duties of the LHC. Louisiana Revised Statutes 40:600.91 provides in part:
A. The corporation shall have the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Chapter, including the following powers in addition to all other powers granted by other provisions of this Chapter:
(1) The corporation may sue and be sued in its own name.
(2) The corporation may establish a seal and alter the same at its pleasure.
(3) The corporation shall adopt, in accordance with the provisions of the Administrative Procedure Act, R.S. 49:950 et seq., those rules and regulations as are necessary and proper for the performance of its duties and responsibilities, in compliance with and subject to the exceptions in the following provisions:
(a) The Administrative Procedure Act, R.S. 49:950 et seq., shall not apply to the sale of bonds, notes, or other obligations of the corporation or of programs of the corporation funded with the proceeds thereof, when such sale occurs after reasonable public notice and public hearing.
(b) The Administrative Procedure Act, R.S. 49:950 et seq., shall not apply to the administration and allocation of low-income housing tax credits under Section 42 of the Internal Revenue Code of 1986, as amended, except that upon adoption of rules and regulations relative to such administration and allocation, the corporation shall submit these rules and regulations to the Joint Legislative Committee on the Budget for review.
(4) The corporation may make and execute contracts and all other instruments necessary or convenient for the exercise of its powers and functions pursuant to this Chapter with any federal or state governmental agency, public or private corporation, lending institution, or other entity or person.
After reviewing La. R.S. 40:600.91, we find that the LHC's powers are specifically defined by the legislature.
Does the LHC's property belong to the public?
Louisiana Revised Statutes 40:600.104 provides that the legislative auditor shall prepare an annual audit of the accounts and operations of the LHC. It also provides that the LHC shall submit to the governor and both houses of the legislature an annual report on the operations of the corporation. Louisiana Revised Statutes 40:600.110 provides that the promulgation of the LHC fee schedules, which requires Joint Legislative Budget Committee approval, shall be done in accordance with the Administrative Procedure Act. These statutes indicate that the LHC is a public entity.
Louisiana Revised Statutes 40:600.108 provides:
A. The corporation and its corporate and public existence shall continue until terminated by law, provided that no such law shall take effect so long as the corporation shall have bonds outstanding, unless adequate provision has been made for the payment thereof.
B. Upon termination of the existence of the corporation, all of its rights, money, assets, and revenues in excess of its obligations shall pass to and be vested in the state.
This statute, requiring all rights, money, assets and revenues of the LHC in excess of the obligations of the LHC to pass to and be vested in the state upon termination of the LHC, also shows that the LHC is an agency of the state.
After review, we find that the LHC's property belongs to the public.
Are the LHC's functions exclusively of a public character and performed solely for public benefit?
Louisiana Revised Statutes 40:600.100 provides:
A. It is hereby determined that the creation of the corporation and the carrying out of its public functions and corporate purposes is, in all respects, a public and governmental purpose for the benefit of the people of the state, and for the improvement of their health, safety, welfare, comfort, and security and that the functions and purposes are public purposes and that the corporation will be performing an essential governmental function in the exercise of the powers conferred upon it by this Chapter.
B. The money, assets, revenues, and operations of the corporation shall be exempt from all taxation by the state or any of its political subdivisions.
C. The corporation shall not be required to pay any recording fee or transfer tax of any kind on account of instruments recorded by it or on its behalf.
D. All bonds authorized to be issued by the corporation pursuant to the provisions of this Chapter, together with interest thereon, income therefrom, and gain upon the sale thereof shall be exempt from all state and local taxes.
This statute makes it clear that the LHC's functions are exclusively of a public character and solely for the benefit of the public.
Because the LHC meets all four of the criteria which define a public entity, we find that the LHC is a public entity. See Property Insurance Association of Louisiana, 31 So.3d at 1015 &1022. Thus, we find that a member of the LHC board is a public officer. See La. R.S. 42:1. Therefore, Mr. Williams is prohibited from holding office on the Civil Service Board and simultaneously holding office as a board member of the LHC. See La. R.S. 33:2476(B)(2)(c)(i). Accordingly, as Mr. Williams sought declaratory judgment that he was not in violation of La. R.S. 33:2476 by serving on both boards, he is not entitled to the relief sought in his motion for judgment on the pleadings.
CONCLUSION
For the foregoing reasons, the district court's April 21,2023 judgment is reversed. Costs of this appeal are assessed against Brandon Williams.
REVERSED.