| Advisory opinion regarding whether the Program manager for IBTS, David Ratcliff, may apply for a variance with the Construction Board of Appeals for the City of Central. |
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IBTS is a 501(c)(3) non-profit organization established to provide unbiased professional building code compliance services directly to, or on behalf of, government agencies at all levels. These services include inspections, plan reviews, building department services, education and training, staff augmentation, policy and procedure development, cost evaluation, energy ratings, and auditing. Mr. David Ratcliffe states that he manages the Municipal Services for the City of Central. Services provided to the City are Finance, Engineering, Public Works, Code Enforcement, Planning & Zoning, Assistant City Clerk, Floodplain Management and all items related to the City of Central's Municipal Government.
In managing the Stormwater and FEMA related issues, the Building Official and Engineering staff for IBTS advises the Board of Appeals on matters brought before them, such as Floodplain Management variances related to FEMA and City of Central requirements. Mr. Ratcliffe has purchased a home in Central and wishes to enclose a building that he placed on the property. In order to apply an enclosure to the building, Mr. Ratcliffe must apply for a variance with the Board of Appeals.
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Section 1113 of the Code prohibits a public servant from entering into transactions that are under the supervision of the agency of the pubic servant. R.S. 42:1102(19) defines "public servant "as a public employee or an elected official.
"Public employee," according to Section 1102(18) means anyone, whether compensated or not, who is: (i) An administrative officer or official of a governmental entity who is not filling an elective office. (ii) Appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the governmental entity or an agency thereof, either as a member of an agency, or as an employee thereof. (iii) Engaged in the performance of a governmental function. (iv) Under the supervision or authority of an elected official or another employee of the governmental entity.
Section 1102(23) defines "transaction involving the governmental entity" as "any proceeding, application, submission, request for a ruling or other determination, contract, claim, case, or other such particular matter which the public servant or former public servant of the governmental entity in question knows or should know: (a) is or will be the subject of action by the governmental entity (b) is one to which the governmental entity is or will be a party or (c) is one in which the governmental entity has a direct interest. A transaction involving the agency of a governmental entity shall have the same meaning with respect to the agency".
In Docket No. 2010-383,the EAB rendered a judgment stating that the legislature did not intend for rezoning applications and appearances at hearings for rezones to be defined as transactions in Section 1113 of the Code. The EAB went further to state that if our interpretation of Section 1113B was adopted it would raise "grave constitutional concerns so they must adopt an interpretation that is consistent with constitutional requirements."
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Adopt the proposed advisory opinion.
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| Assigned Attorney: |
Aneatra Boykin |
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