| Consideration of a request by Rowdy Gaudet to dismiss the consent agreement in which he agreed that he violated Section 1111C(2)(d) of the Code of Governmental Ethics based on the enactment of Act 492 in the 2024 Regular Legislative Session. |
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Rowdy Gaudet signed a consent opinion to resolve an ethics violation that was investigated by the Board in BD 2021-139. The consent opinion was entered into by both Mr. Gaudet and the Board concerning Mr. Gaudet's violation of Section 1111C(2)(d) concerning his receipt of compensation from an employer who had contractual relationships with East Baton Rouge City Parish.
Mr. Gaudet asserts that the enactment of Act 492 of the 2024 Legislative Session codifies the opinion in BD 82-02D, is a clear legislative intent to permit the business relationship that led to the penalty against him, and necessitates reconsideration of the punitive measures taken against ($50,000 penalty that was part of the consent opinion).
BD 82-02D was an opinion rendered by the Board in 1982 in which it applied certain factors to except the application of the R.S. 42:1111C(2)(d). The Board used these same factors when analyzing certain subsequent advisory opinion requests.
In 2018, the Board discussed the fact that the Board, as an executive branch agency, does not have the authority to create law, and that it does not have the authority to create exceptions to those laws.
The factors used in BD 82-02D were the following:
1. the public servant is a regularly compensated employee;
2. the public servant's compensation is substantially unaffected by relationship between employer and their agency;
3. the public servant own less than controlling interest in employer; and,
4. the public servant must not be an officer, director, trustee or partner in employer.
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La. Civil Code Article 6 provides that [i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively unless there is a legislative expression to the contrary.
La. La. R.S. 42:1111C(2)(d) provides that no public servant and no legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are: (d) Neither performed for nor compensated by any person or from any officer, director, agent, or employee of such person, if such public servant knows or reasonably should know that such person has or is seeking to obtain contractual or other business or financial relationships with the public servant's agency; conducts operations or activities which are regulated by the public employee's agency; or has substantial economic interests which may be substantially affected by the performance or nonperformance of the public employee's official duty.
R.S. 42:1114A requires a public servant to file annual income disclosures when they receive income from a person that has a contractual relationship with their agency.
Act 492 of the 2024 Regular Legislative Session, which was effective when the governor signed on June 5, 2024, provides an exception to 42:1111C(2)(d) for a member of a school board or parish/municipal governing authority to maintain their employment with a person that has or is seeking to have a contractual or other business or financial relationship with their governmental entity provided all of the following factors are met:
1) they are a salaried or wage-earning employee;
2) their compensation is substantially unaffected by their employer's relationship with the governmental entity;
3) they are not an officer, director, trustee or partner of their employer;
4) they do not own more than 1% of their employer;
5) they do not participate in transactions with their governmental entity that involves their employer; and,
6) they comply with the disclosure requirements in R.S. 42:1114.
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Decline to dismiss the consent agreement and to refund the civil penalty of $50,000 to Mr. Gaudet.
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| Assigned Attorney: |
Tracy Barker |
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