| Advisory opinion request regarding whether Gilbane Construction can respond to a Request for Proposals for the position of Construction Manager at Risk for the National Hurricane Museum and Science Center's project. |
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The National Hurricane Museum and Science Center, Inc., (Center) was organized under the laws of Louisiana as a not for profit, non-stock corporation on August 16, 2006. The Center's principal purpose is to develop a national hurricane museum and science center. The Center is governed by a Board of Directors, the members of which are appointed by various public and private entities. Upon dissolution, the Center, after satisfying its obligations, shall distribute its assets for one or more exempt purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
The Center is planning to use the "Construction Manager at Risk" method of delivery to design and build a $57 million educational facility in Lake Charles, Louisiana. The Center has received $28 million in capital outlay funding, as well as funding from local governmental entities, private foundations, corporations and individuals.
Dan Gilbane, Vice President of Gilbane Construction, has been a member of the Center's Board of Directors for approximately two years.
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The Louisiana Supreme Court, in PIAL v. Theriot, found that all of the following four factors, originally set forth in State v. Smith, must be present in order to find that an entity is public: (1) whether the entity was created by the legislature; (2) whether its powers were specifically defined by the legislature; (3) whether the property of the entity belongs to the public; and (4) whether the entity's functions are exclusively of a public character and performed solely for the public benefit.
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La. R.S. 42:1102(18)(a) provides that "Public employee" 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.
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Adopt the proposed advisory opinion.
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| Assigned Attorney: |
Haley Williams |
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