Opinion
2012 CW 0224R
06-13-2013
MURPHY J. PAINTER v. STATE OF LOUISIANA, THROUGH THE OFFICE OF THE GOVERNOR, THE DEPARTMENT OF REVENUE AND TAXATION, ALCOHOL AND TOBACCO CONTROL COMMISSION, CYNTHIA BRIDGES, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF REVENUE AND TAXATION, THE OFFICE OF STATE INSPECTOR GENERAL, AND STEPHEN STREET, IN HIS OFFICIAL CAPACITY AS STATE INSPECTOR GENERAL
Al J. Robert, Jr. New Orleans, LA Counsel for Plaintiff/Respondent, Murphy J. Painter Winston G. DeCuir, Jr. Winston G. DeCuir, Sr. Sheri M. Morris Baton Rouge, LA Counsel for Defendants/Respondents, Louisiana Department of Revenue, Office of Alcohol and Tobacco Control, and Cynthia Bridges, in her Official Capacity as Secretary of the Department of Revenue
NOT DESIGNATED FOR PUBLICATION
On Remand from the Louisiana Supremem Court
On Application for Supervisory Writs to the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket Number C604308
The Honorable Janice Clark, Judge Presiding
Al J. Robert, Jr.
New Orleans, LA
Counsel for Plaintiff/Respondent,
Murphy J. Painter
Winston G. DeCuir, Jr.
Winston G. DeCuir, Sr.
Sheri M. Morris
Baton Rouge, LA
Counsel for Defendants/Respondents,
Louisiana Department of Revenue,
Office of Alcohol and Tobacco Control,
and Cynthia Bridges, in her Official
Capacity as Secretary of the
Department of Revenue
WHIPPLE , C.J.
This matter is before us on remand from the Louisiana Supreme Court for briefing, argument, and a full opinion. For the following reasons, we reverse the decision of the trial court, insofar as it overruled the peremptory exception of no cause of action as to plaintiff's claims for wrongful termination pursuant to LSA-R.S. 23:967, otherwise known as the Louisiana Whistleblower Statute. We render judgment sustaining that peremptory exception of no cause of action.
See Painter v. State, through the Office of the Governor, 2012-1676 (La. 12/14/12), 104 So. 3d 450.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Murphy Painter, was appointed as Commissioner and Assistant Secretary of the Office of Alcohol and Tobacco Control (the "ATC") within the Department of Revenue, and served from February 1996 through August 2010. The Office of the State Inspector General (the "OIG") conducted an investigation focusing on Painter, because of complaints of improper conduct while he served as Commissioner and Assistant Secretary of the ATC. Specifically, Painter was accused of using his position and authority to improperly access electronic databases to obtain personal information about public officials in the community, including Kelli Suire, a former ATC employee. The OIG also received complaints that Painter stalked and sexually harassed Ms. Suire. Painter's employment was terminated, and the OIG obtained a warrant to search Painter's former office at the ATC. In executing the warrant, the OIG seized various items, which remain in the custody of OIG in connection with the anticipated criminal prosecution of Painter.
The Commissioner of the Office of Alcohol and Tobacco Control is appointed by the Governor and serves at his pleasure. LSA-R.S. 26:791.
The details of the investigation are outlined in a report issued by the OIG on February 17, 2011.
Items seized included two computers, which were state property, three U.S.B. thumb drives, various ATC documents, case files, and telephone reports. (R. 48)
Thereafter, Painter filed the instant lawsuit, naming as defendants: the State of Louisiana, through the Office of the Governor; the State, through the Department of Revenue and Taxation; the Louisiana Office of Alcohol and Tobacco Control Commission; Cynthia J. Bridges, in her capacity as the Secretary of the Department of Revenue and Taxation; the Office of the State Inspector General; and Stephen E. Street, Jr., in his capacity as the State Inspector General. Therein, Painter alleged four causes of action: (1) wrongful termination in violation of LSA-R.S. 23:967; (2) illegal investigation in violation of LSA-R.S. 40:2531; (3) conversion; and (4) defamation.
Painter subsequently filed first and second amending petitions. Unlike Painter's first amended petition, his second amended petition was filed after the ruling of the trial court on review herein.
As against the Governor's Office and the Department of Revenue, Painter alleged that he was wrongfully terminated from his position as Commissioner and Assistant Secretary of ATC because he refused a request made on behalf of the Governor that he issue a liquor license to SMG, which manages the Mercedes Benz Superdome in New Orleans, for Champions Square, which was built adjacent to and on the outside of the Superdome in the summer of 2010. Painter alleged that the request had been properly denied, as the proposal outlined by SMG violated numerous provisions of Louisiana law. Specifically, Painter alleged that Budweiser desired to offer a $300,000.00 annual sponsorship of Champions Square in exchange for erecting a large Budweiser tent and other signage in Champions Square, which he contends was not permitted under Title 55, Part VII, §317(C)(2)(e) of the Louisiana Administrative Code. Painter alleged that after he advised SMG that the proposal would need to be revised in accordance with the law to comply with licensing requirements, and SMG refused to do so, he received a phone call from the Governor's Executive Counsel asking him to "cooperate" with SMG and to stop using his own counsel to address his concerns with the Champions Square Project proposed by SMG. Painter alleged that after he informed the Governor's Executive Counsel that SMG did not qualify for an exception to the licensing requirements, as suggested by the Governor's Counsel, he "understood" that he was being "ordered" to issue the license requested by SMG in direct contravention of law. Painter alleged that upon his refusal to do so, two days later, he was summoned to the Governor's Office on the fourth floor of the State Capitol Building, where he met with the Governor's Executive Counsel, the head of the Louisiana State Police, and another member of the Governor's Executive Counsel Staff, and was advised that he was being investigated for alleged criminal violations and that the Governor was asking for his resignation. Painter alleged that he refused to resign, but it was nonetheless reported to the media that he had resigned, he was required to turn in his keys to his state vehicle, and he was further prohibited from returning to his office to collect his personal items. Painter acknowledged in his petition that "it was made clear" that his alleged criminal investigation was the reason that the Governor was asking for his resignation. Nonetheless, Painter also alleged that shortly after he was "terminated," as evidenced by the conditions surrounding the end of his employment, the "illegal permitting scheme" the Governor's Office sought was ultimately approved by Painter's successor, and Budweiser was allowed to maintain its requested sponsorship of Champions Square. Accordingly, Painter contended, the OIG investigation was a pretext for his employment termination, in that he was dismissed from his employment by the Governor's Office because he refused to sanction, in violation of state law, the permit requested by SMG.
Pursuant to 1997 La. Acts, No. 658, § 2, and the statutory revision authority of the Louisiana State Law Institute, "Department of Revnue and Taxation" was changed to '"Department of Revenue."
As against the OIG, Painter also asserted a claim of conversion, alleging that the Inspector General intentionally removed Painter's "personal provisions" from his office at ATC and withheld them without just cause. In the petition, he prayed that his possessions be returned and that he be awarded damages associated with the deprivation of these belongings for more than a year. As against Street and OIG, Painter alleged that Street and his employees communicated to third persons multiple defamatory statements, accusing him of the criminal act of stalking and of improperly accessing databases. Thus, Painter prayed for damages to his reputation, which were allegedly caused by the defendants' violation of law.
The defendants responded by filing various exceptions. Among these, OIG and Street filed a peremptory exception raising the objection of no cause of action with regard to the request for release of seized property and the conversion claims.
Therein, they asserted that Painter was improperly attempting to obtain the release of the property by asserting a conversion claim in a civil lawsuit, collaterally attacking the decision by the district court judge to issue a search warrant in connection with a criminal investigation. They urged that, pursuant to law, the civil district court does not have jurisdiction over these claims, and further that the law does not afford a remedy to Painter under the circumstances of this case, because property seized pursuant to a search warrant may lawfully be retained until such time as a determination is made that the seized property is no longer needed as evidence in the criminal proceeding. They farther urged that when property is seized pursuant to a search warrant, such property is not considered to be held in derogation of the claimant's rights to his property, and therefore, the seizure does not give rise to a conversion claim. They contended that while Painter's petition alleged that no criminal proceeding had yet been instituted against Painter, the petition did not allege that Painter cannot be criminally prosecuted prospectively for the charges that form the basis of the OIG's investigation. In sum, the OIG and Street urged that Painter is not entitled to the release of the seized property, and that his petition thereby failed to state a cause of action with respect to conversion.
The Office of the Governor also filed peremptory exceptions raising the objections of no right of action and no cause of action as to Painter's illegal investigation claims under LSA-R.S. 40:2531 and no cause of action as to Painter's wrongful termination claim, contending that Painter failed to state a cause of action under LSA-R.S. 23:967, as the petition contained no allegations of an actual violation of state law. The Office of the Governor contended that the petition was devoid of any allegation that Painter reported and refused to participate in an actual violation of law, as required to state a cause of action. Specifically, the Office of the Governor contended that because a plaintiff asserting a claim for wrongful termination under LSA-R.S. 23:967 must plead and prove an actual violation of law, Painter's fatal omission of such renders his petition fatally defective for failure to state a cause of action under the statute.
Louisiana Revised Statute 40:2531 provides the minimum standards for investigation of a police officer or a law enforcement officer as defined by LSA-R.S. 40:1372(5).
The Louisiana Department of Revenue, ATC, and Cynthia Bridges, in her capacity as Secretary of the Louisiana Department of Revenue, filed similar peremptory exceptions, likewise raising the objections of no right and no cause of action under LSA-R.S. 40:2531 and LSA-R.S. 23:967.
The trial court heard the defendants' exceptions on November 28, 2011, taking the matters under advisement at the conclusion of the hearing. On January 9, 2012, the trial court issued its ruling, sustaining the defendants' exceptions of no right of action as to Painter's illegal investigation claims, noting that Painter does not belong to a class of persons to whom the law grants a cause of action under the enumerated categories set forth in LSA-R.S. 40:2531. However, the trial court overruled the defendants' exceptions of no cause of action with reference to Painter's conversion claims and whistleblower claims under LSA-R.S. 23:967.
Considering its ruling on the exceptions of no right of action as to Painter's claims under LSA-R.S. 40:2531. the trial court rendered the exceptions of no cause of action under LSA-R.S. 40:2531 moot.
In overruling Painter's whistleblower claims, the trial court noted:
Accepting the allegation of petitioner as true as this Court must, plaintiff has stated sufficient facts to warrant a cause of action under the whistleblower statute. Nevertheless, plaintiff worked at the discretion of the Governor and could be removed from office at any time or any reason [sic] except as prohibited by law.
The OIG and Street filed an application for supervisory writs with this court, seeking reversal of the trial court's decision. This court granted the writ application and reversed the trial court's decision insofar as the lower court had overruled the peremptory exception of no cause of action by the OIG and Street as to Painter's conversion claim. Specifically, the writ panel of this court noted that plaintiff failed to state a cause of action with respect to his claim for damages allegedly resulting from the conversion of his property, which was lawfully seized pursuant to a search warrant in connection with a criminal investigation. Accordingly, this court rendered judgment on the application for writs, sustaining the defendants' exception of no cause of action and dismissing plaintiff's conversion claim.
See Painter v. State, through the Office of the State Inspector General and Stephen E. Street, 2012-0161 (La. App. 1st Cir. 6/18/12)(unpublished writ).
The Louisiana Department of Revenue, the ATC, and Bridges also filed a writ application seeking review of the trial court's denial of their exception of no cause of action as to Painter's whistleblower claim. Declining to exercise supervisory jurisdiction, this court denied the application for writs.
See Painter v. State, through the Department of Revenue and Taxation, including the Alcohol and Tobacco Control Commission, and Cynthia Bridges in her capacity as Secretary of the Louisiana Department of Revenue and Taxation, 2012-0189 (La. App. 1st Cir. 6/18/12), Parro, J. dissenting (unpublished writ).
Pertinent to the instant appeal, the Office of the Governor likewise filed a writ application with this court, seeking review of the trial court's order denying its exception of no cause of action as to Painter's whistleblower claim. This court denied writs, declining to exercise supervisory jurisdiction, after which the Office of the Governor filed an application for supervisory review with the Louisiana Supreme Court. The Supreme Court granted the writ application and remanded the matter to this court for briefing, argument, and a lull opinion. See Painter v. State, through the Office of the Governor, 2012-1676 (La. 12/14/12), 104 So. 3d 450.
See Painter v. State, through the Office of the Governor, 2012-0224 (La. App. 1st Cir. 6/18/12), Parro, J. dissenting (unpublished writ).
DISCUSSION
In accordance with the Supreme Court's directive, we now look to the issue presented to us by the Office of the Governor, which is whether an allegation that an employee was terminated because he refused to take action that he believed would result in a violation of law is sufficient to state a cause of action under the Louisiana Whistleblower Statute, LSA-R.S. 23:967, where the employee's petition and amended petition fail to allege that a violation of law actually occurred.
A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So. 2d 114, 118. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Southeastern Louisiana University v. Cook, 2012-0021 (La. App. 1st Cir. 9/21/12), 104 So. 3d 124, 128.
Generally, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. LSA-C.C.P. art. 931. In addition, all facts pled in the petition must be accepted as true, and any doubts are resolved in favor of the sufficiency of the petition to state a cause of action. Ramey v. DeCaire, 869 So. 2d at 118-119. If the petition alleges sufficient facts to establish a case cognizable in law, the exception raising the objection of no cause of action must fail. Rebardi v. Crewboats, Inc., 2004-0641 (La. App. 1st Cir. 2/11/05), 906 So. 2d 455, 457. However, mere conclusions of the plaintiff, unsupported by facts, do not set forth a cause of action. Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So. 2d 127, 131.
Appellate courts review judgments sustaining the peremptory exception raising the objection of no cause of action de novo. Ramey v. DeCaire, 869 So. 2d at 119. This is because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Southeastern Louisiana University v. Cook, 104 So. 3d at 128.
Louisiana's "Whistleblower Statute," LSA-R.S. 23:967, entitled, "Employee protection from reprisal; prohibited practices; remedies," provides:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.
C. For the purposes of this Section, the following terms shall have the definitions ascribed below:
(1) "Reprisal" includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section; however, nothing in this Section shall prohibit an employer from enforcing an established employment policy, procedure, or practice or exempt an employee from compliance with such.
(2) "Damages" include compensatory damages, back pay, benefits, reinstatement, reasonable attorney fees, and court costs resulting from the reprisal.
D. If suit or complaint is brought in bad faith or if it should be determined by a court that the employer's act or practice was not in violation of the law, the employer may be entitled to reasonable attorney fees and court costs from the employee.
The Whistleblower Statute provides protection to employees against reprisal from employers for reporting or refusing to participate in illegal work practices. Hale v. Touro Infirmary, 2004-0003 (La. App. 4th Cir. 11/3/04), 886 So. 2d 1210, 1214, writ denied, 2005-0103 (La. 3/24/05), 896 So. 2d 1036. Under the provisions of the Whistleblower Statute, an employee is entitled to damages, attorney fees, and court costs if his employer fires him, lays him off, causes a loss of his benefits, or takes any discriminatory action against him as a reprisal for the employee advising the employer that the employer has violated the law, and thereafter the employee: (1) discloses or threatens to disclose a workplace act or practice that is in violation of state law; (2) provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law, or (3) objects to or refuses to participate in an employment act or practice that is in violation of law. LSA-R.S. 23:967.
In Accardo v. Louisiana Health Services & Indemnity Company, 2005-2377 (La. App. 1st Cir. 6/21/06), 943 So. 2d 381, 383 (per curiam), this court examined LSA-R.S. 23:967 to determine whether the statute provided protection to a plaintiff who reports what he believes, in good faith, is a violation of the law. In doing so, this court noted that whether a plaintiff was required to prove an actual violation of state law to establish a Louisiana Whistleblower claim was a res nova issue. Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 383. After applying pertinent principles of statutory construction, reviewing cases from other Louisiana circuits, and tracing the legislative history to determine the legislative intent, this court squarely concluded that an actual violation of state law must be established by the plaintiff under the Whistleblower Statute in order to prevail on the merits of the case. See Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 383-387.
See Hale v. Touro Infirmary, 886 So. 2d at 1215 ("the very specific language referring to a 'violation of law' placed not once, but in several places throughout the statute, manifests a desire by the Louisiana legislature to only provide a remedy to employees of private employers whose practices are in actual violation of law, and not simply practices disagreed with or found distasteful by the employee"); see also Puig v. Greater New Orleans Expressway Commission, 2000-924 (La. App. 5th Cir. 10/31/00), 772 So. 2d 842, 845, writ denied, 2000-3531 (La. 3/9/01), 768 So. 2d 731 (where, in distinguishing LSA-R.S. 23:967 and LSA-R.S. 42:1169, which protects public employees from reporting alleged violations of the Code of Governmental Ethics, the court held:
R.S. 23:967 is clearly distinct, and targeted at more serious conduct, in that it specifies that the employer must have committed a "violation of state law" for an employee to be protected from reprisal. R.S. 42:1169 does not require a violation of state law, merely an "alleged act of impropriety'' under the Code of Governmental Ethics for the public employee to be protected from discipline or reprisal.)
In so holding, this Court noted that it had grave concerns regarding the chilling effect that this requirement will have on the reporting by an employee of illegal acts. Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 387.
Applying the principles of statutory construction, this court noted in Accardo that the first part of Subsection (A) of the statute describes the prerequisite conditions that must occur before an employee takes one of three actions and reads, "An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law." LSA-R.S. 23:967(A). The remaining part of Subsection (A) sets forth three different employee actions that are protected under the statute (referred to as "disclosure activities"). See Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 385. This court concluded that the specific reference to "violation of law" in several places in LSA-R.S. 23:967(A) supports the conclusion that the prerequisite condition of advising the employer of the actual violation of state law, must be fulfilled before the employee undertakes one of the three protected disclosure activities. See Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 385. Moreover, the penalty provision of LSA-R.S. 23:967 supports the conclusion that the employer conduct complained of must constitute an actual violation of law, i.e., "An employee may commence a civil action in a district court where the violation occurred." See LSA-R.S. 23:967(B) (emphasis added); see also Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 385.
Painter contends that his disclosure activity, i.e., refusing to issue the license to SMG, is protected under Subsection (A)(3). ("Objects to or refuses to participate in an employment act or practice that is in violation of law.")
17. [O]ur conclusion that the statute requires an actual violation of state law is also supported by the legislative history showing the House of Representatives' amendments to the bill. The House adopted several amendments, including the requirement that the employer be advised of the "violation of law" in Section A, that the violation be one of "state" law in Section A(l), that "potential" be deleted in regard to a "violation of law" in Section A(2) and that the employee's reasonable belief be deleted in Section A(3).Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 386.
Applying these priciples to the instant case, we first look to Painter's allegations as pled, which, for purposes of this exception, we accept as true, to determine whether he has alleged an actual violation of law. In particular, Painter pled the following:
The proposal outlined by SMG violated numerous provisions of Louisiana law.
Specifically, Budweiser desired to offer a $300,000 annual sponsorship of the Louisiana Superdome Entertainment District (LSED) in exchange for erecting a large Budweiser tent and other signage in the Champions Square.
However, Title 55, Part VII, Chapter 3 of the Louisiana Administrative Code, which is promulgated under Department of Public Safety regulations, outlines a host of unfair trade practice regulations that further implement Louisiana's alcohol beverage and control law.
The ATC Commissioner is charged with enforcing these regulations.
The regulations contain a blanket prohibition on outdoor signs by suppliers such as Budweiser. See 55 LAC VII §317(C)(2)(c).
Furthermore, 55 LAC VII §317(C)(2)(e) outlines rules governing sponsorships and expressly provides that industry members such as Budweiser shall not provide anything of value, except as allowed in the regulations. Moreover, the regulation restricts sponsorships to no more than one every 60 days at the same location.
Mr. Painter again advised [Governor's Executive Counsel] that the license would not be forthcoming because SMG did not qualify for the proposed exception as it suggested.
Subsequently, on or about August 11, 2010, the Governor's Executive Counsel called Mr. Painter again and advised Mr. Painter that he, as Executive Counsel for the Governor's Office, he [sic] saw no problem with issuing the requested license to SMG.
Mr. Painter advised that he believed that SMG did not qualify for the requested license, but indicated that he would defer to the Governor's Executive Counsel if he were willing to issue a legal opinion in writing to the ATC representing the Governor's position.
In short, Mr. Painter understood that he was being ordered to issue the license requested by SMG in direct contravention of ATC regulations.
Mr. Painter and ATC refused to issue the requested license to SMG to operate Champions Square.
Mr. Painter was terminated, at least in part, because he refused to issue a license to SMG for the sale of liquor at Champions Square.
Construing these allegations under the applicable law and jurisprudence, the Office of the Governor contends that Painter's allegation that he "understood that he was being ordered to issue the license requested by SMG in direct contravention of ATC regulations" renders the petition fatally defective, as he has alleged, at best, nothing more than a potential or threatened violation of law, which he claims he prevented by refusing to capitulate to the Executive Counsel's request, which is insufficient to set forth that there was an actual violation of law as was necessary to state a cause of action under the statute. The Governor's Office further contends that allowing a plaintiff to proceed to trial on what he believes to be a violation of law undermines the rationale for requiring an actual violation of law, because it shifts the focus to the plaintiff's state of mind and to speculation about what could have occurred if the employer had not refused to act. The Office of the Governor also contends that accepting such an allegation as disclosing a cause of action is illogical and unsupported in law, as doing so would place the employer in the position of having to defend an alleged violation of law that never actually occurred, which is at odds with the requirement that "a violation of law must be established" by a plaintiff under the statute to prevail on the merits of the case. See Hale v. Touro Infirmary, 886 So. 2d at 1215; Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 384.
Painter counters that the statute itself does not utilize the word "actual," and moreover, that the use of the term "actual" does not require that a statute be violated to give rise to a claim under LSA-R.S. 23:967. Painter urges a different interpretation of LSA-R.S. 23:967. According to Painter, the employee's claim under the statute arises when he merely refuses to participate in a practice or act that would result in a violation of the law. Painter contends that to require that a statute actually be violated to give rise to a claim would render portions of the statute meaningless. Specifically, Painter cites the language of Subsection (A)(3), where, after advising the employer of the violation of law, the employee "[o]bjects to or refuses to participate in an employment act or practice that is in violation of law." We disagree.
As this court has previously determined, under the statute, the employee must establish that he met the prerequisite condition in the first part of Subsection (A) of advising the employer of the actual violation of state law, before the employee takes one of the three different protected disclosure activities. See Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 385.
To the extent that the Governor's Office contends that Painter failed to make the necessary allegation that he advised the State of the violation of law, we note that Painter alleged the following facts in paragraphs 44 and 45 of his first supplemental petition:
The Governor's Executive Counsel asked Mr. Painter to cooperate with SMG and to stop using his own counsel to address his concerns with the Champions Square project proposed by SMG.Thus, it appears that, according to the petition, the Governor's Office was advised of the problems of which Painter complained. However, with regard to the necessary allegation that Painter advised his employer of the violation of law required pursuant to Subsection (A), on review, we agree with the defendant/relator that Painter has failed to do so.
Thereafter, [SGM's counsel] forwarded an email to Mr. Painter that he had already forwarded to the Governor's Executive Counsel outlining a purported rationale that would allow SMG to qualify for the requested license to sell liquor in Champions Square.
Painter's allegations are that he did not issue a license to SMG because to do so would have been a violation of 55 LAC VII §317(C). Further, his allegation that he "understood that he was being ordered to issue the license requested by SMG in direct contravention of ATC regulations," does not constitute the necessary allegation that an actual violation of law occurred, as required by Subsection (A), as to enable him to invoke one of the three employee actions that are protected under the statute.
In Accardo, as additional support for the conclusion that the statute requires an actual violation of state law, this court reviewed the legislative history of the statute, noting that the House adopted several amendments, including the requirement that the employer be advised of the "violation of law," and that "potential" be deleted in regard to "violation of law." See Accardo v. Louisiana Health Services & Indemnity Company, 943 So. 2d at 386. In the instant case, even assuming that Painter's allegations concerning the legality of issuing the license are true, his petition alleges only a "potential" violation of law. Because there was no actual violation of law alleged, Painter's petition fails to disclose a cause of action under LSA-R.S. 23:967.
CONCLUSION
For the above and foregoing reasons, the ruling of the trial court is reversed insofar as it overruled the Office of the Governor's peremptory exception of no cause of action as to Painter's claims of wrongful termination pursuant to LSA-R.S. 23:967. We hereby render judgment sustaining the peremptory exception of no cause of action as to Painter's claims of wrongful termination pursuant to LSA-R.S. 23:967.
While the trial court's ruling on review before us pertains to the peremptory exception of no cause of action urged by the Office of the Governor, we note that a ruling on a peremptory exception of no cause of action is interlocutory. Thus, to the extent that the issues resolved herein were raised by other parties, those exceptions can be reurged below in light of this court's ruling. See Johansen v. Louisiana High School Athletic Association, 2004-0937 (La. App. 1st Cir. 6/29/05), 916 So. 2d 1081, 1086; Sellers v. El Paso Industrial Energy, L.L.P., 2008-403 (La. App. 5th Cir. 2/10/09), 8 So. 3d 723, 732.
Costs of this supervisory review are assessed to the plaintiff/respondent, Murphy J. Painter.
REVERSED AND RENDERED.