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Waiver request submitted by Kevin Guidry regarding a $2,500 late fee assessed for filing his amended 2088 Tier 2 annual pfd 54 days late. |
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Kevin Guidry is a member of the Calcasieu Parish Police Jury. In Mr. Guidry's original request for the waiver, he stated that he was unable to obtain the information required to be disclosed on the amended report within the 14 business day period after receipt of the notice of delinquency. He also stated that he was unaware of the late fee that would be assessed for being late.
At this time, Mr. Guidry, through his attorney, asserts that he received the notice of delinquency in February 2010 requesting he amend his report and that he timely filed an "answer" to such notice when he responded in March 2010 by filing a blank Schedule D marking it "not applicable." However, the staff did not accept this as an answer as nothing on the schedule indicated that it was "answer" and it was not a "written answer" as required by statute. Further, Mr. Guidry at no point, until now, has asserted that it was an answer. In April 2010, Mr. Guidry received a second notice requesting he properly amend his report to disclose income he received from a gaming interest and income his wife received from a political subdivision. The amendment was filed on May 17, 2010. All actions needed to be taken to enforce the provisions of the code for Mr. Guidry's failure to file were taken within two years of not only the original filing date - May 15, 2009 - but also from the discovery of his inaccuracy --February 18, 2010.
On March 16, 2012, a late fee order was issued to Mr. Guidry for his late filing. The late fee order was returned "unclaimed" on April 11, 2012. On April 12, 2012, a late fee order was issued by subpoena and personally served on Mr. Guidry by the state police on April 18, 2012.
The late fee assessment is an automatic assessment pursuant to R.S. 42:1157. The provision does not provide a prescription date for notifying a late filer of the automatic assessment. As stated above, any action needed to be taken in the time period required to be met to enforce the late filing was timely taken pursuant to R.S. 42:1163. Collecting a late fee that is automatically assessed pursuant to statute is not an enforcement action as contemplated by R.S. 42:1163.
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TIER: 2
TYPE OF REPORT: amended 2008 Annual Report
DATE REPORT INITIALLY DUE: May 15, 2009
DATE NOD RECEIVED: February 18, 2010
DATE REPORT FILED: May 3, 2010
DAYS LATE: 54 days
ASSESSED LATE FEE: $2,500
OTHER LATE FILINGS: NO
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La. R.S. 42:1124.2 requires each person holding a public office who represents a voting district having a population of 5,000 or more persons to file an annual personal financial disclosure statement on or before May 15th of each year during which the person holds office and the year following termination of the holding of such office.
La. R.S. 42:1124.2C(5)(a) requires the name, address, type and amount of each source of income received by the individual or spouse, or by any business in which the individual or spouse, either individually or collectively, owns an interest which exceeds ten percent of that business, which is received from the state or any political subdivision or for services performed for or in connection with a gaming interest.
La. R.S. 42:1124.4 of the Code provides that upon discovery of the failure to file, failure to timely file, omission of information or inaccurate information, the Board shall notify the filer by sending him a notice of delinquency by certified mail. The notice of delinquency shall inform the person that the financial statement must be filed, or that the information must be disclosed or accurately disclosed, or that a written answer contesting the allegation of such failure, omission, or inaccuracy must be filed no later than fourteen (14) business days after receipt of the notice of delinquency.
La. R.S. 42:1124.4B(2) provides that if a person fails to file, fails to provide the omitted information, fails to correct the inaccurate information, or fails to file a written answer prior to the deadline contained in the notice of delinquency, he shall be subject to assessment of the penalties provided in Subsection C ($100 per day for Tier 2).
La. R.S. 42:1163 provides that no action to enforce any provision under this Chapter shall be commenced after the expiration of two years following the discovery of the occurrence of the alleged violation, or for four years after the occurrence of the alleged violation, whichever period is shorter.
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Based on the waiver guidelines, decline to waive.
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| Assigned Attorney: |
Tracy Barker |
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