Opinion
2014 CA 1166
08-19-2015
ROBERT BURNS v. LOUISIANA AUCTIONEER'S LICENSING BOARD, CHARLES "HAL" MCMILLIN, JAMES M. SIMS, DARLENE JACOBS-LEVY, GREGORY L. "GREG" BORDELON, CHARLES "CLAYTON" BRISTER
J. Ryan Vivian John C. Hopewell, III Zachary, Louisiana Attorneys for Plaintiff/Appellant Robert Burns Larry S. Bankston Jenna H. Linn Baton Rouge, Louisiana Attorneys for Defendants/Appellees Louisiana Auctioneer's Licensing Board, Charles "Hal" McMillin, James M. Sims, Darlene Jacobs-Levy, Gregory L. "Greg" Bordelon, Charles "Clayton" Brister
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA
DOCKET NUMBER C616916, SECTION "25"
HONORABLE WILSON FIELDS, JUDGE J. Ryan Vivian
John C. Hopewell, III
Zachary, Louisiana
Attorneys for Plaintiff/Appellant
Robert Burns
Larry S. Bankston
Jenna H. Linn
Baton Rouge, Louisiana
Attorneys for Defendants/Appellees
Louisiana Auctioneer's Licensing
Board, Charles "Hal" McMillin,
James M. Sims, Darlene Jacobs-Levy,
Gregory L. "Greg" Bordelon, Charles
"Clayton" Brister
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. McDONALD, J.
This is an appeal by plaintiff, Robert Burns, from a judgment of the district court finding that the members of the Louisiana Auctioneer's Licensing Board (LALB) did not violate the Open Meetings Law (La. R.S. 42:11, et seq.), that the members of the LALB were not liable to him for civil penalties and attorney fees, and dismissing his claims against the LALB and its members. After a review, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Mr. Bums was an auctioneer licensed by the LALB. On September 17, 2012, the LALB held an administrative meeting on the matter of LALB v. Robert Burns, at which time the LALB voted to reprimand Mr. Burns. On January 8, 2013, the LALB held another administrative meeting, reheard the matter of LALB v. Robert Burns, and again voted to reprimand Mr. Burns.
On November 9, 2012, Mr. Burns filed suit against the LALB, James M. Sims, a member and vice-chairman of LALB, and the individual LALB members, Charles "Hal" McMillin, Darleen Jacobs-Levy, Charles "Clayton" Brister, and Gregory L. "Greg" Bordelon, (collectively the defendants) asserting that the LALB members each knowingly and willfully violated La. R.S. 42:17(A)(1) by going into executive session at the meeting on September 17, 2012. Mr. Burns asserted that each of the LALB members was liable to him in the amount of $100.00 in civil penalties pursuant to La. R.S. 42:28, and that he was entitled to reasonable attorney fees and costs. Mr. Burns prayed that the district court rule that the LALB reprimand taken against him was void. The defendants filed an answer and asked that the claims be dismissed.
Thereafter, Mr. Burns filed a motion for summary judgment, asserting that there were no genuine issues of material fact and he was entitled to judgment as a matter of law. The defendants also filed a motion for summary judgment, asserting there was no genuine issue of material fact and that they were entitled to judgment in their favor as a matter of law. The district court denied both motions for summary judgment, and the case proceeded to trial on the merits.
After a trial on the merits, the district court ruled in favor of the defendants, finding that the defendants did not violate the Open Meetings Law and that the defendants were not liable to Mr. Burns. The claims were dismissed with prejudice. The judgment was signed on April 22, 2014. A second judgment was signed by the district court on May 8, 2014, with the same ruling, adding as reasons for judgment that "Mr. Burns' character was not discussed in an Executive Session and also that the guidance of the Attorney General's office as demonstrated by that office's acquiescence to any discussion of Mr. Burns' character in Executive Session absolves Defendants of any liability to Mr. Burns."
Mr. Burns appealed both judgments, and makes the following assignments of error:
1. The trial court erred to the prejudice of the Plaintiff-Appellant in finding that the LALB was not holding an open meeting under LSA R.S. 42:11, et seq.
2. The trial court erred to the prejudice of the Plaintiff-Appellant in finding that the LALB did not go into an Executive Session under LSA R.S. 42:16 for the purpose of discussing the character, professional competency, or physical or mental health of Burns.
3. The trial court erred to the prejudice of the Plaintiff-Appellant in finding that the LALB did not violate the provisions of the Open Meetings Law under, LSA R.S. 42:11, et seq. by going into an Executive Session to discuss the character, professional competency, or physical or mental health of Burns when he demanded that such discussion be held in an open meeting under LSA R.S. 42:17(A)(1) and in finding that each party shall bear their own costs.
4. The trial court erred to the prejudice of the Plaintiff-Appellee in finding that no civil penalties be assessed to the individual board members of the LALB under LSA R.S. 42:28, because they did not knowingly and willfully go into an executive session in violation of the Open Meetings Law.
STANDARD OF REVIEW
In an action to enforce the Open Meetings Law pursuant to Louisiana Revised Statutes 42:25-28, the district court has original jurisdiction and this court reviews the findings for errors of law or manifest errors of fact. See La. R.S. 42:25C and 42:27A; Pittman v. Washington Parish Reservoir District of State, 05-2278 (La. App. 1 Cir. 2/20/96), 2006 WL 3734644.
Louisiana Revised Statute 42:25C provides: Any person who has been denied any right conferred by the provisions of this Chapter or who has reason to believe that the provisions of this Chapter have been violated may institute enforcement proceedings. Louisiana Revised Statute 42:27A provides: Enforcement proceedings shall be instituted in the district court for the parish in which the meeting took place or will take place.
APPLICABLE LAW
The LALB is responsible for overseeing the licensing of qualified auctioneers and auction houses within the State of Louisiana, and the Auctioneer's Licensing Law is intended by the Legislature to contribute to the safety, health, and property of the people of this state in the transfer of property by auction. La. R.S. 37:3101; La. R.S. 37:3102. 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. To that end, the Open Meetings Law is to be construed liberally. La. R.S. 42:12.
Louisiana Revised Statute 42:14 provides that:
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.
D. Except school boards, which shall be subject to R.S. 42:15, each public body conducting a meeting which is subject to the notice requirements of R.S. 42:19(A) shall allow a public comment period at any point in the meeting prior to action on an agenda item upon which a vote is to be taken. The governing body may adopt reasonable rules and restrictions regarding such comment period.
Louisiana Revised Statute 42:13 provides that:
A. For the purposes of this Chapter:Louisiana Revised Statue 42:16 provides:
(1) "Consent agenda" means a grouping of procedural or routine agenda items that can be approved with general discussion.
(2) "Meeting" means the convening of a quorum of a public body to deliberate or act on a matter over which the public body has supervision, control, jurisdiction, or advisory power. It shall also mean the convening of a quorum of a public body by the public body or by another public official to receive information regarding a matter over which the public body has supervision, control, jurisdiction, or advisory power.
(3) "Public body" means village, 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.
(4) "Quorum" means a simple majority of the total membership of a public body.
B. The provisions of this Chapter shall not apply to chance meetings or social gatherings of members of a public body at which there is no vote or other action taken, including formal or informal polling of the members.
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. 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.
Louisiana Revised Statute 42:17 provides in pertinent part:
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.
Louisiana Revised Statute 42:28 provides:
Any member of a public body who knowingly and wilfully participates in a meeting conducted in violation of this Chapter, shall be subject to a civil penalty not to exceed one hundred dollars per violation. The member shall be personally liable for the payment of such penalty. A suit to collect such penalty must be instituted within sixty days of the violation.
FACTS AND ANALYSIS
At the September 17, 2012 LALB meeting, the hearing officer for the LALB advised the LALB members that they had the right to go into executive session "to discuss character and other type issues." However, prior to going into executive session, Mr. Burns requested that the LALB conduct its discussions about him in an open session in accordance with La. R.S. 42:17(A)(1). In spite of this request, and relying on the advice of their legal advisor, the LALB went into executive session. Upon coming out of executive session, committee member Ms. Jacobs-Levy told Mr. Burns that he had "verbally harass[ed] and abuse[d] three of our employees." He was reprimanded and informed that the public reprimand was the only penalty, as he would not be fined or have his license revoked. At the January 8, 2013 LALB meeting, the LALB reheard Mr. Burns' case, but this time they did not go into executive session, and the entire proceeding was held in an open meeting. At the conclusion of the meeting, the LALB again voted to publicly reprimand Mr. Burns.
The LALB contracted with the Attorney General's office to provide hearing officers.
When the LALB went into executive session at the September 17, 2012 meeting, it was done upon the advice of the LALB hearing officer. Thus, we cannot say that the LALB members "knowingly and willfully" violated the Open Meetings Law, as they were acting upon legal advice. Further, the LALB reheard Mr. Burns' case in an open meeting on January 8, 2013, with the same result as the first hearing, a public reprimand. After reviewing the record, we find no legal error or manifest error of fact in the district court's determination that no civil penalties be assessed against the members of the LALB. Moreover, we find no abuse of discretion by the district court in casting each party with their own costs.
While Mr. Burns asked in his petition that his reprimand by the LALB be voided, he did not specifically raise that issue on appeal, thus we do not address it.
Therefore, for the foregoing reasons, the judgment of the district court, affirming the decision of the LALB and dismissing Mr. Burns' suit with prejudice, is affirmed. The costs of this appeal are assessed against the appellant, Robert Burns.
AFFIRMED.