233 So. 3d 625
La. Ct. App.2017Background
- The Board of Ethics (BOE) charged Walter Monsour (RDA CEO) and his son Jordan with ethics violations arising from Jordan’s law-firm representation of clients dealing with RDA/CDE interests.
- Walter and Jordan filed motions for summary judgment before the Ethics Adjudicatory Board (EAB); BOE opposed and submitted documentary exhibits that were unsworn/unverified.
- Walter and Jordan objected that the BOE’s exhibits were not competent summary-judgment evidence under La. C.C.P. arts. 966–67.
- The EAB struck one affidavit (Ex. 17) as not authenticated but overruled objections and admitted BOE Exhibits 1–16 and 19.
- Walter sought writ review; this Court reviewed de novo whether La. C.C.P. arts. 966–67 govern EAB summary-judgment proceedings versus the more relaxed Louisiana Administrative Procedure Act (APA) evidentiary standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether La. C.C.P. arts. 966–67 govern summary-judgment practice before the EAB | Walter: arts. 966–67 apply; BOE exhibits were incompetent because unsworn/unverified | BOE: APA/adjudicatory evidentiary standards apply; EAB may admit evidence it finds probative | Court: arts. 966–67 apply to EAB summary-judgment proceedings when agency law is silent |
| Whether unsworn/unverified documents may be considered on summary judgment before EAB | Walter: such documents are not competent summary-judgment evidence | BOE: administrative hearings allow hearsay and relaxed rules; documents should be admissible | Court: Unsworn/unverified documents admitted by EAB (Exhibits 1–16, 19) did not meet art. 966–67 and were improperly admitted |
| Whether agency may rely on general APA evidence rules to fill gaps where agency regulations are silent | Walter: where local agency rule is silent on procedures for summary judgment, C.C.P. controls | BOE: APA gives agencies discretion to admit probative evidence | Court: Specific civil-procedure rules for summary judgment control in this context; APA/agency rules do not supplant arts. 966–67 |
| Remedy following erroneous evidentiary admission | Walter: reverse and remand to exclude incompetent exhibits | BOE: relied in good faith on relaxed standards; should be allowed to cure defects | Court: Reversed EAB’s admission of Exhibits 1–16 and 19 and remanded for further proceedings (majority); partial dissent would allow BOE a chance to re-submit evidence under arts. 966–67 before ruling |
Key Cases Cited
- Ellis v. Louisiana Board of Ethics, 168 So.3d 714 (La. App. 1st Cir.) (de novo review; C.C.P. governs civil/adjudicatory proceedings where agency law is silent)
- Spreadbury v. State of Louisiana, Dept. of Public Safety, 745 So.2d 1204 (La. App. 1st Cir.) (sworn officer statements can constitute competent administrative evidence)
- Brouillette v. State of Louisiana, Dept. of Public Safety, 589 So.2d 529 (La. App. 1st Cir.) (agency findings must be supported by competent evidence despite relaxed rules)
- Superior Bar & Grill, Inc. v. State, Dept. of Public Safety, 655 So.2d 468 (La. App. 1st Cir.) (incompetent evidence cannot support factual findings)
- Unifund CCR Partners v. Perkins, 134 So.3d 626 (La. App. 1st Cir.) (unsworn/unverified documents lack evidentiary value on summary judgment)
- RCS Gaming, Inc. v. Louisiana Gaming Control Board, 705 So.2d 1124 (La. App. 1st Cir.) (specific agency law governs over general APA or other general laws)