| Advisory opinion request as to the propriety of Governor John Bel Edwards serving as "special counsel" for the law firm Fishman Haygood LLP after he leaves public office. |
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Facts provided in the request for the advisory opinion:
Governor John Bel Edward would like to associate with the law firm Fishman Haygood LLP as a nonequity special counsel after he leaves public office in January 2024. Fishman Haygood has represented the Louisiana Department of Revenue in tax proceedings since 1996. While serving as Governor, John Bel Edwards did not personally or substantially participate in LDR matters handled by Fishman Haygood. As special counsel, he will not provide any services related to those LDR matters after he leaves office, and he will not receive any compensation derived from Fishman Haygood's legal work for LDR.
Governor Edwards understands that he cannot assist Fishman Haygood's clients in transactions involving the executive branch or in which he participated.
Fishman Haygood is asking the Board to confirm the following:
1. No provision in the Code of Governmental Ethics precludes Governor Edwards' association with Fishman Haygood after he leave office.
2. No provision in the Code of Governmental Ethics disqualifies Fishman Haygood from representing clients in matters involving the State of Louisiana, as long as former Governor Edwards does not assist with such transactions/matters and does not receive any "compensation" arising out of such transactions/matters.
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Definitions: La. R.S. 42:1102
(2)(a) "Agency" means . . . (ii) For the governor and lieutenant governor, it shall mean the executive branch of state government.
(3) "Agency head" means the chief executive or administrative officer of an agency or any member of a board or commission who exercises supervision over the agency.
(7) "Compensation" means any thing of economic value which is paid, loaned, granted, given, donated or transferred or to be paid, loaned, granted, given, donated, or transferred for or in consideration of personal services to any person.
(15) "Participate" means to take part in or to have or share responsibility for action of a governmental entity or a proceeding, personally, as a public servant of the governmental entity, through approval,disapproval, decision, recommendation, the rendering of advice, investigation, or the failure to act or perform a duty.
(16) "Person" means an individual or legal entity other than a governmental entity, or an agency thereof.
(23) "Transaction involving the governmental entity" means 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. (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.
(12) "Governmental entity" means the state or any political subdivision which employs the public employee or employed the former public employee or to which the elected official is elected, as the case maybe.
La. R.S. 42:1121A(1)
No former agency head or elected official shall, for a period of two years following the termination of his public service as the head of such agency or as an elected public official serving in such agency, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction,involving that agency or render any service on a contractual basis to or for such agency.
La. R.S. 42:1121C
No legal entity in which a former public servant is an officer, director, trustee, partner, or employee shall, for a period of two years following the termination of his public service, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which such public servant at any time participated during his public service and involving the agency by which he was formerly employed or in which he formerly held office.
La. R.S. 42:1121D
No former public servant shall share in any compensation received by another person for assistance which such former public servant is prohibited from rendering by this Section.
La. R.S. 42:1113D(3) prohibits the governor, his spouse, or any legal entity in which he or his spouse own an interest in excess of 5% from entering into a contract with state government for one year after the governor's term of office ends.
Commission of Ethics for Public Employees Docket No. 94-005: The Commission of Ethics for Public Employees, the predecessor to the Louisiana Board of Ethics, concluded that the former Secretary of the Louisiana Department of Environmental Qualify (DEQ) "participated" in all transactions that arose within DEQ while he was secretary. Therefore, any law firm in which the secretary becomes an "officer, director, trustee, partner or employee may not assist clients for compensation in transactions that arose at DEQ while he was secretary. However, the Commission suggested that as special counsel, if he was an "independent contractor," then the restrictions in La. 42:1121C would not apply to the law firm. The opinion referenced the decision in Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972) to examine whether the secretary's relationship with the law firm would be as an employee or an independent contractor. This opinion was relied on in Tower Credit, Inc. Carpenter, 825 So.2d 1125, 1129 (La. 2002) when the Court found the following factors relevant in determining whether an independent contract relationship exists:
1. there is a valid contract between the parties;
2. the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;
3. the contract calls for specific piecework as a unit to be done according to the independent contractor's own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
4. there is a specific price for the overall undertaking agreed upon; and,
5. the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side with a corresponding liability for its breach.
Commission on Ethics for Public Employees Docket No. 1995-092: Affirmed its decision in Docket No. 1994-005 with respect to La. R.S. 42:1121C issue.
Ethics Board Docket No. 2002-263:
The Board concluded, after examining the proposed contractual relationship between former New Orleans Mayor Marc Morial and the law firm of Adams and Reese, it established an independent contractor relationship between the law firm and Mayor Morial.
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To be discussed at the board meeting.
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| Assigned Attorney: |
Kathleen Allen |
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