Open Meetings Ruling

THIRTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF ST. BERNARD STATE OF LOUISIANA

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NO. 113-757

DIVISION "A

MICHAEL GINART, JR., INDIVIDUALLY, AND IN HIS CAPACITY AS A MEMBER OF THE ST. BERNARD PARISH COUNCIL,

FRANK AUDERER, JR., INDIVIDUALLY AND AS A MEMBER OF

ST. BERNARD PARISH COUNCIL, RAY E. LAUGA, JR., INDIVIDUALLY, AND AS A MEMBER OF THE ST. BERNARD PARISH COUNCIL VERSUS

ST. BERNARD PARISH COUNCILMAN-AT-LARGE WAYNE J. LANDRY and ST. BERNARD PARISH COUNCILMAN GEORGE CAVIGNAC

FILED:

JUN 1 ? 2W

\

CLERK OF COURT

/S/ALICE PERNICIARO

REASONS FOR JUDGMENT This matter came for hearing on a Preliminary Injunction and Writ of Mandamus on June 5, 2009. Following testimony and by consent of all parties present, the Court made preliminary findings and reserved ruling on other issues to

allow defendants additional time to provide legal argument via additional briefs.

The briefs were received on June 15, 2009. As the next Hospital Service District meeting is scheduled for June 17, 2009 a judgment was issued this date. The testimony heard on June 5, 2009 established that the agenda for the

council meeting was posted in its final form timely under both the Louisiana Open Meeting Law and the St. Bernard Council Charier. Specifically, the language of Item 79 appeared as follows:

"Motion to Discuss appointments to the following boards and commissions: (Councilman Landry) •

Tourism Commission

Coastal Zone Advisory Committee Hospital Service District"

This agenda item was included in the agenda properly posted Friday morning prior to 11:00 a.m. Accordingly, it complied with the two business days posting

requirement of the St. Bernard Council Charter. It is, further, well over the 24 hour posting requirement of La. R.S. 42:7(b)(l). Accordingly, the Court finds that as a matter of law the agenda item was properly posted prior to the council meeting. However, that does not end this inquiry.

The second issue before the Court was whether the agenda item gave proper notice to the public that appointments to the Hospital Service District were going to be made at the council meeting. In the area of public meetings the cases are

uniform in setting forth that the underlying issue is the notice and opportunity for

the public to be informed and to participate in the deliberations of public bodies. This requirement is spelled out in Jackson vs. Board of Commissioners for the

Housing Authority of New Orleans. C.A. 7150, 514 So.2d 628 (La. 4lh Cir. 1987). The purpose of the Open Meeting Law is to allow the public to voice its opinion in the decision-making process.

"While the agenda item sets forth there is to be a discussion of appointments to three boards and commissions, that is not sufficient in light of the actual

intended purpose concerning the Hospital Service District. It is pointed out that

testimony clearly established that the council has a procedure in place which requires all appointments to boards and commissions to have public input prior to

being considered by the council for appointment. Specifically, there are advertisements and recommendations made for appointment to the council prior to

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the actual consideration and appointment. This obviously provides notice and opportunity for the public to be engaged in the process. That procedure has not

applied to the Hospital Service District since its creation. It has been treated differently. This Court does not address what is the proper procedure for

appointment to the Hospital Service District. It is clear that Councilmen Landry and Cavignac did not feel that the regular appointment process applied to the Hospital Service District. It is also clear that they had knowledge of the

resignations of two members of the Hospital Service District well in advance of the meeting. That knowledge appears to have been received as early as Friday.

This information was not shared with other council members or in any way noted on the agenda item to provide notice to the public. That failure is what renders the agenda items to be defective as a matter of law.

The requirements of the Open Meeting Law must be strictly construed. Every case or Attorney General's opinion which addresses this issue is clear lhal the public has an absolute right to be informed of what public bodies are contemplating. That does not mean that public bodies cannot address issues as

they arise. However, these exceptions are to be narrowly construed. For an item to be added to the agenda or to expand the agenda item to consider action not reasonably noticed, a unanimous vote of all council members is necessary. In this case where resignations were going to be accepted and appointments made, that needed to be on the agenda. See Attorney General opinion 90-B-A, wherein the opinion was rendered that an agenda item must be sufficiently clear so that the public could ascertain that the removal and reappointment of a Hospital Service District member would be considered. Absence of this requirement makes the action voidable by the Court if challenged within sixty (60) days. While this is not

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binding upon the Court the reasoning is persuasive, accordingly if appointments

are to be made and this is known, the failure to put this on the notice is voidable action.

Any person is competent to seek to void any action taken in violation of the Open Meeting Law. This is a court of complete jurisdiction and the proper venue.

There are no requirements that any administrative remedies be undertaken prior to suit being filed. The plaintiffs can proceed as individuals without any requirement

of the council authorizing this action or being made a party. The public has a right to be protected from decisions made without opportunities for public input. The public further has the right to know in advance the subject matter upon which governing bodies will deliberate and vote. Wagner vs. Beauregard Parish Police Jury. No. 87-154, 525 So.2d 166, (La. 3rd Cir. 1988). The most compelling reasoning for voidance of this action is found in Hayes vs. Jackson Parish School

Board, No. 24,4450C.A., 603 So.2d 274 (La. 2nd Cir. 1992) wherein the Court voided action of the defendant School Board for violation of the Open Meeting Law. In that case, the agenda item discussed additional space for a Head Start

Program. No mention was made concerning closure of any schools to accomplish this action in the agenda. After discussion, a motion was made to implement a restructuring program which would close a school, transfer its students to another school and put the Head Start Program into the closed school. While the Court found no evidence that the Board intended to act in secret, the Court voided the action by finding that, in light of the knowledge of the superintendent that he was "definitely leaning toward" this action, it needed to be placed on the agenda.

Further, no vote was taken to expand the agenda to allow consideration of the closure.

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In this case, the Court finds that at the time of posting the agenda, Mr.

Landry and Mr. Cavignac had knowledge that resignations to the Hospital Service District were made or soon to be made, and vacancies would need to be filled. While they may have felt that the agenda item as posted gave sufficient notice to

the public that two appointments were going to be made, the notice is legally deficient. La. R.S. 42:7(b)(l) requires that the agenda item as published be sufficiently detailed to give notice to the public that two vacancies existed on the Hospital Service District which were going to be filled by appointment. The action taken while beyond the agenda as published, could have been accomplished through exceptions to the Open Meeting Law. For the agenda item to be expanded to allow the filling of vacancies which just occurred, it is necessary that a unanimous vote of the members present add that item to the agenda or modify the motion. The fact that this procedure is not followed at most meetings does not

exempt it from the Open Meeting Law. Specifically, any action taken by a public

body which violates this law is voidable either by the body by a properly noticed readdressing of the issue or by Court action within sixty (60) days. If neither is done, then the action becomes valid. In this case, a timely suit recognized its invalidity, and the appointments are voidable.

Any remaining exceptions filed by defendants which were not addressed involve merit defenses to be set and heard prior to a trial on the Permanent

Injunction. These were not timely filed prior to the hearing on the Preliminary Injunction and are considered only to address the ability of the Court to hear and rule on the Preliminary Injunction. The Writ of Mandamus is denied as it does not apply to the facts of this case as no public entity is a party defendant. While the Court has made factual findings concerning the Preliminary Injunction those are

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not binding upon a determination concerning issuance of a Permanent Injunction following a full trial after consideration of all exceptions raised and completion of discovery.

Chalmette, Louisiana, this 17th day of June, 2009.

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