168 So. 3d 714
La. Ct. App.2014Background
- Bob Ellis, a former New Orleans City Attorney, co-owned Opus Consulting which contracted with Benetech; Benetech later contracted with the City of New Orleans. The Board of Ethics investigated potential conflicts arising from those relationships.
- The Board voted to investigate in September 2011 but did not interview Ellis until August 2012; it filed formal charges August 16, 2012 for alleged Code of Ethics violations (La. R.S. 42:1111(C)(2)(d) and 42:1112(B)(5)).
- Ellis filed an exception of prematurity and a motion for summary disposition, arguing the Board filed charges before completing the statutorily required confidential investigation and without a prima facie evidentiary basis, apparently to avoid prescription.
- The Ethics Adjudicatory Board (EAB) denied the exception and granted the Board’s motion to compel discovery, concluding the statute did not define how complete an investigation must be and allowing discovery after charges were filed.
- The Louisiana Court of Appeal reviewed de novo legal issues and reversed the EAB: it held the Board must complete its investigation and possess at least a prima facie case before filing charges; because the Board failed to do so, the charges were premature and were dismissed.
Issues
| Issue | Plaintiff's Argument (Ellis) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Whether the Board may file formal charges before completing its confidential investigation | Board filed charges prematurely; investigation must be complete and yield evidentiary support (prima facie) before charges | Board may determine when investigation is complete and may file charges then and use post-filing discovery to prepare for hearing | Board cannot file charges until investigation is complete and it has at least a prima facie case; exception of prematurity sustained |
| Whether filing charges to avert prescription is permissible | Filing merely to stop prescription, without evidentiary basis, is improper and undermines statutory purpose | Filing to prevent prescription is justified when Board believes investigation is complete | Impermissible: filing to avoid prescription without factual support is premature and contrary to statute |
| Scope/use of discovery after charges filed | Discovery after premature filing amounts to improper investigatory activity; should be limited to Board’s investigative findings | Once charges are filed, normal discovery rules apply to prepare for trial | Discovery cannot be used to substitute for the statutorily required pre-filing investigation; investigation and discovery are distinct processes |
| Standard for "complete" investigation under La. R.S. 42:1141(C) | "Complete" means Board must have evidentiary support for allegations (prima facie) before filing | Statute does not prescribe details; Board has discretion to decide when investigation is complete | "Complete" requires sufficient factual support (at least prima facie); Board lacks discretion to file absent that support |
Key Cases Cited
- City of New Orleans v. Louisiana Assessors’ Ret. & Relief Fund, 986 So.2d 1 (La. 2007) (statutory text is the starting point for interpretation)
- In re Davies, 55 So.3d 918 (La. App. 1st Cir.) (Board has no vested right to issue charges; one-year investigation creates enforceable expectation)
- Doe v. Louisiana Bd. of Ethics, 112 So.3d 339 (La. App. 4th Cir.) (penal/administrative statutes construed with lenity in favor of accused)
- Braud v. Louisiana Bd. of Ethics, 134 So.3d 1178 (La.) (statutory prescription periods limit when enforcement action may be brought)
- Liberty Mut. Ins. Co. v. Louisiana Ins. Rating Comm’n, 696 So.2d 1021 (La. App. 1st Cir.) (agency proceedings follow Administrative Procedure Act; civil procedure applies where agency law is silent)
- Christakis v. Clipper Constr., LLC, 117 So.3d 168 (La. App. 1st Cir.) (trial court has discretion to entertain summary judgment before discovery completed)