Connick v. BrechtelConnick v. Brechtel
William F. Wessel, Raymond R. Egan, Wessel & Associates, New Orleans, and Camille Buras, First Assistant District Attorney Orleans Parish, New Orleans, for Respondent.
Before KLEES, BYRNES and PLOTKIN, JJ.
OPINION
PLOTKIN, Judge.
Defendants, certain members of the Orleans Parish School Board seek supervisory review of a trial court judgment granting a motion to compel discovery filed by plaintiff, Harry F. Connick, District Attorney of Orleans Parish in this suit seeking to void certain actions allegedly taken by the School Board in violation of the Louisiana Open Meetings Law,
Facts
On December 9, 1997, the School Board announced that a “special meeting” would be held the following day, December 10, 1997, for the following stated purposes: (1) to act on a resolution to appoint special counsel for employment-rеlated matters; and (2) to recess into a committee of the whole meeting for the purpose of interviewing applicants for board vacancy in District 1. On December 15, 1997, a special meeting was convened. The minutes reflect that all defendants were present at the public special meeting, along with New Orleans School Superintendent, Dr. Morris Holmes, and an attorney, Robert Rosenberg. After the recitation of the Pledge of Allegiance, the School Board immediately recessed into executive session behind closed doors “to consider personnel matters.”
Following the executive session, the School Board reconvened the public sрecial meeting, after which School Board member Dr. J. Berengher Brechtel stated that the purpose of the special meeting was for the Board to recess immediately into executive session to discuss personnel matters and to take the following actions: (1) fill the vacancy in District 1, and (2) swear in a new Board member from District 7. Dr. Brеchtel then added that the Board would also consider “any emergency item(s) properly presented by the Superintendent and/or Board members.” The minutes reflect that the School Board then
At that point, one of the School Board members moved to add the follоwing item to the agenda:
To discuss and resolve the release of the Board‘s contractual obligations to have Dr. Holmes continue to serve as Superintendent from July 1, 1998 to April 7, 2000.
The motion was unanimously carried and Dr. Brechtel read a statement into the record which indicated that Dr. Holmes and the School Board had already agreed that it was in the best interest of the school district that Dr. Holmes no longer continue to serve as superintendent effective July 1, 1998. Dr. Brechtel then asked School Board member Gail Glapion to read a resolution into the record; that resolution recited the Board‘s agreement to pay Dr. Holmes a lump-sum settlement of $210,000.00 for the release of any continuing obligation under his July 22, 1997 contract. Dr. Brechtel then stated that the Board would inform the public about the “total package,” after everything had been worked out “with all of the agreements.”
Procedural history
The instant suit was filed on February 5, 1998 by D.A. Connick against defendants J. Berenger Brechtel, Scott P. Shea, Bill Bowers, Gail M. Glapion and Carolyn Green Ford, all members of the School Board. Based on the facts recited above, D.A. Connick claims that the School Board took improper actions in violation of Louisiana‘s Open Meetings Law,
Initially, Mr. Connick noticed the depositiоns of the School Board members, whereupon they filed a Motion to Quash Depositions, which was denied by the trial court. This court denied writs on that judgment on the showing made, finding no reason to interfere with the orderly process of the trial court. Connick v. Brechtel, 98-C-0444 (La. App. 4 Cir. 2/26/98), unpub.
Thereafter, Mr. Connick attempted to take the Ms. Glapion‘s deposition. The writ applicatiоn contains an excerpt from Ms. Glapion‘s February 26, 1998 deposition, in which she was advised by her attorney “not to disclose the content of executive session conversations” pertaining to the meeting wherein the Board agreed to buy out Dr. Holmes’ contract.
Accordingly, on February 27, 1998, D.A. Connick filed the Motion to Compel which is the subject оf the instant writ application, seeking a judgment ordering the defendants to answer all questions pertaining to matters discussed and actions taken in private or in executive sessions of the School Board relating to the contract settlement reached with Dr. Holmes. On March 3, 1998, the trial court granted Mr. Connick‘s Motion to Compel, ordering the School Board members “to answer questions with regard to events and discussions held during executive session, with the exception of those questions which infringe on the attorney-client privilege.”
In filing the instant writ application, the School Board members claim that the trial court erred in broadly ordering them to respond to questions about what went on in thе executive session because it “nullifies and completely eviscerates the purpose and intent” of
Open meetings law
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. Toward this end, the provisions of R.S. 42:4.1 through R.S. 42:10 shall be construed liberally.
The primary purpose of Louisiana‘s Open Meeting Law, which ensures the right
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. 42:7, of two-thirds of its constituent members. An executive session shall be limited to matters allowed to be exempted from discussion аt open meetings by R.S. 42:6.1; 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 reasons for holding such an executive session shall be recorded and entered into the minutes of the meeting. Nothing in this Section of R.S. 42:6.1 shall be construed to rеquire that any meeting be closed to the public, nor shall any executive session be used as a subterfuge to defeat the purposes of R.S. 42:4.1 through R.S. 42:8.
(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 twentyfour hours before the meeting and that such persons may require that such discussion be held at an open meeting, and provided that nothing in this Subsection shall permit an executive session for discussion of the appointment of a person to a public body. In cases of extraоrdinary emergency, written notice to such person shall not be required; however, the public body shall give such notice as it deems appropriate and circumstances permit.
In Brown v. East Baton Rouge Parish School Board, 405 So.2d 1148 (La.App. 1 Cir.1981), two suits were brought by the District Attorney for the Parish of East Baton Rouge Parish and the League of Women Voters of Baton Rouge, respectively, against the Eаst Baton Rouge School Board, seeking to void the School Board‘s actions taken in connection with its search for a new school superintendent. A search committee comprised of the School Board and one other person met in executive session twice, purportedly to discuss the character, comрetence, and physical and mental health of applicants for the position. Id. The School Board reconvened after each executive session, then nominated applicants and voted for them, narrowing the field of applicants. After the second narrowing action, the suits were filed. Id.
In response to the suits, the School Board cited
In the instant case, D.A. Connick has exercised his right pursuant to
Morеover, D.A. Connick cannot prove his allegations without presenting evidence concerning the discussions and actions taken in the December 15, 1997 executive session. D.A. Connick claims that the School Board effectively entered into a binding agreement with Dr. Holmes regarding the settlement of his employment contract. D.A. Connick has an аbsolute right to discover information necessary to proper preparation for trial of this case, as allowed by the Louisiana Code of Civil Procedure articles governing discovery.
Scope of discovery
“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.”
The Louisiana Supreme Court has delineated the “basic objectives” of the Louisiana discovery process as follows:
(1) to afford all parties a fair opportunity to obtain facts pertinent to the litigation, (2) to discover the true facts and compel disclosure of these facts wherever they may be found, (3) to assist litigants in preparing their cases for trial, (4) to narrow and clarify the basic issues between the parties, and (5) to facilitate and expedite the legal process by encouraging settlement or abandonment of less than meritorious claims.
Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125, 129 (La.1983) (citations omitted). “The discovery statutes are to be liberally and broadly construed to achieve [their] intended objectives.” Id.
The School Board members claim that the December 15, 1997 executive session was convened in order to discuss the character, professional competence, or physical or mental health of Dr. Holmes, as allowed by
Moreover, the argument of the School Board members in this case ignores D.A. Connick‘s contention that the executive session moved beyond discussion to action, which is expressly prohibited by
Accordingly, we find no abuse of trial court‘s great discretion in discovery matters in his granting оf the Motion to Compel filed by D.A. Connick. That judgment is affirmed and the case is remanded to the trial court for further actions consistent with this decision.
Request for protective order
In their opposition to plaintiff‘s Motion to Compel, the School Board members
In camera inspection
In their prayer, the School Board members request that, in the event this court concludes that plaintiff is еntitled to conduct discovery of the information discussed in the executive session, the trial court be required to conduct an in camera inspection of the deposition testimony and preclude the use or disclosure of information that falls within the purview of
WRIT GRANTED; RELIEF DENIED.
BYRNES, J., concurs.
BYRNES, Judge, concurring.
I agree entirely with both the reasoning and result of the majority, especially the finding that
On the one hand the relators contend that by allowing discovery of executive proceedings we nullify the effectiveness of the “executive session” exceptions to the open meetings law found in
Where the requirements of openness cannot be reconciled with the executive session exceptions, then openness must prevail because of “the broad public policy of openness.” Brown v. East Baton Rouge Parish School Board, 405 So.2d 1148, 1154 (La.App. 1 Cir.1981).
Mоreover, the dilemma here is more false than real. A substantial purpose of the executive session exceptions is to provide for unimpeded discussion at the time of the discussion. After the fact discovery of such discussion is not the same impediment to discussion as contemporaneous disclosure would be. Therefore, the disсovery permitted by the majority in the instant proceedings has less potential for damage to the effectiveness of the executive session exceptions than the contrary result would have to the effectiveness of the open meetings law.