Court: Louisiana Court of Appeal; February 22, 1996; Louisiana; State Appellate Court
The Louisiana Commission on Ethics for Public Employees ruled that Charles Fulda, III, was prohibited from entering into a contract with the Office of Public Health (OPH) to run the Emergency Public Health Information Surveillance System (EPHISS) due to potential violations of the Ethics Code. Fulda had previously worked on the EPHISS project as a computer specialist through the Jefferson Project and later received two temporary restricted appointments with OPH. After these appointments, OPH offered Fulda a contract to continue his work on the project. Concerned about the legality of this contract, Fulda requested an advisory opinion from the Commission, which concluded that he was a "public employee" at the time of his temporary appointments and therefore barred from the proposed contract under La.R.S. 42:1121 B, as it would require him to perform the same services he had provided while employed by OPH. Fulda sought supervisory writs to challenge the Commission’s ruling. OPH argued that the court lacked jurisdiction to review the Commission's advisory opinion, claiming Fulda's application was premature and lacked a factual controversy. However, the court has previously rejected similar jurisdictional challenges to the Commission's advisory opinions. After reviewing the case, the court vacated the Commission's ruling.
La.R.S. 42:1142 grants this court supervisory jurisdiction over preliminary actions of the Ethics Commission, including advisory opinions, which are considered intermediate rulings. The court has previously exercised this jurisdiction in cases involving the Commission's advisory opinions. The Ethics Commission found that the proposed contract with Fulda violated the Code of Governmental Ethics, specifically La.R.S. 42:1121 B, which prohibits a former public employee from assisting in transactions related to their former employment for two years post-termination. The Commission interprets the term “public employee” broadly, asserting that it includes Fulda’s temporary appointments and thus restricts him from contracting with OPH for services he provided while employed there. Notably, the Commission did not identify any actual or potential conflicts of interest arising from Fulda’s proposed contract and maintained that the Code of Ethics must be applied uniformly, without discretion for unique circumstances. The Commission argues that the law's clear application to Fulda's case prevents the court from considering legislative intent regarding the post-employment contract ban.
Numerous court decisions have warned against the Commission's broad interpretation of the Code of Ethics. Courts consistently reference the Code's underlying purposes when determining its applicability to disputes. The primary objective of the Code, as stated in R.S. 42:1101 B, is to ensure impartial decision-making free from personal gain influences and to prevent conflicts of interest that may create appearances of impropriety. A conflict of interest occurs when an official's private interests conflict with public duties, which the Code aims to prevent by outlining situations with a high potential for such conflicts. La.R.S. 42:1121 B was enacted to avoid a "revolving door" between government and private sectors, prohibiting public employees from leveraging their positions for personal contracts. In the Hesse case, the court criticized the Commission for interpreting the Ethics Code too broadly, noting that mere possibilities of conflict are insufficient for violations. Courts have ruled against the Commission's findings when they lack concrete evidence of conflict, emphasizing that presumption alone does not establish a breach of the Ethics Code.
The court determined that the Commission's presumptive approach regarding Mr. Fulda’s contract with the OPH was erroneous, as it failed to consider the unique circumstances of his case and the absence of any conflict of interest. The court noted that Mr. Fulda's involvement with the EPHISS project arose from a temporary appointment due to an emergency situation and did not involve any voluntary departure from public employment to secure a better contractual arrangement. It was emphasized that the legislative intent behind La.R.S. 42:1121 was not to prevent someone like Mr. Fulda, who briefly worked for a state agency under limited circumstances, from contracting with that agency. Consequently, the court vacated the Commission's ruling that deemed the Fulda-OPH contract a violation of the Ethics Code.
Regarding Mr. Fulda's claim for back pay and attorney's fees under La.R.S. 42:1142 B, the court concluded that he was not eligible, as he had not been suspended or dismissed by the Commission but had merely sought an advisory opinion. The court exercised its supervisory jurisdiction to grant the writ application, vacate the Commission’s ruling, and assess costs of $204 against the Commission. Additionally, the court noted that Mr. Fulda's lawsuit against OPH and the Commission was stayed pending the decision, and since the Commission's ruling was deemed improper, there was no need to address his constitutional challenge to that ruling.
