2009-807
Created By: Elizabeth Sanders on 08/06/2010 at 10:10 AM
Category: Ethics Charges, Miscellaneous
Caption: Charges concerning State Senator Robert Marionneaux, Jr. violating provisions of the Ethics Code arising out of contract dispute between private contractor and LSU.

July 28, 2010

Senator Robert Marionneaux, Jr.
246 Napoleon Street
Baton Rouge, LA 70802-5937

RE: Charges Issued in Ethics Board Docket No. 2009-807

Dear Senator Marionneaux:

The Louisiana Board of Ethics conducted a private investigation into allegations received by the Board of Ethics concerning certain activities in which you were involvedwhile serving as a Louisiana State Senator. Based upon that investigation, at its July 15, 2010 meeting, the Board by a majority vote of its membership ordered that a public hearing be conducted on the following charges:


1.

Rob Marionneaux has served as a member of the Louisiana State Senate since January 2000 and he is also licensed to practice law in the State of Louisiana.

2.

On or about February 17, 2003, the Division of Administration approved a performance-based contract/energy efficiency contract between the LSU System and Bernhard Mechanical Contractors, Inc. (Bernhard Mechanical) in which Bernhard Mechanicalwas obligated to design and install a cogeneration plant on the LSU System Baton Rouge campus in return for compensation as provided in the contract.

3.

As early as 2004, performance and monetary disputes arose between LSU and Bernhard Mechanical. In early 2006, LSU filed suit in the 19th Judicial District Court alleging principally that the stipulated energy savings under the contract had not been attained and that Bernhard owed substantial sums under its guarantee of annual energy costs savings. Bernhard filed a reconventional demand principally for substantial sums in alleged shared savings under the contract. The lower court decision was appealed to the Court of Appeal, First Circuit, which remanded the matter back to the trial court, which in turn remanded the matter to the Commissioner of the Division of Administration for resolution. The parties then engaged in periodic mediation efforts without success.

4.

Then in April 2008 or before, Mr. Marionneauxwas retained by Bernhard Mechanical to represent it in the subject litigation. Later, Mr. Marionneaux formerly advised counsel for the LSU System by letter on August 28, 2008 that he had been retained by Bernhard Mechanical. As compensation for his legal services, Bernhard Mechanical agreed to pay Mr. Marionneaux a contingency fee based on the amount of money it might recover.

5.

In the August 28, 2008 letter to counsel for the LSU System, Mr. Marionneaux confirmed he had requested additional mediation meetings in the matter. In that letter, Mr. Marionneaux requested that the Director of Facilities and Planning Section of the Division of Administration be present for mediation discussion, as that entity would make the recommendation on paying any settlement funds to his client, which funding would have to be approved by the Legislature as the ultimate solution to the dispute. Mr. Marionneaux’s letter also referred to a prior meeting on this matter that he had with the Director to provide him with some preliminary information. Additional periodic mediation, negotiations and settlement efforts involving Mr. Marionneaux continued unsuccessfully for a period of time.

6.

At SenatorMarionneaux’s request, a meeting was held on May 27, 2009 in the conference room of the President of the Louisiana Senate to again discuss settlement of the dispute. At Mr. Marionneaux’s request, the LSU System President, the Chancellor of the Baton Rouge campus and counsel for the LSU System were present. Mr. Marionneaux led the settlement discussion on behalf of Bernhard Mechanical and stated Bernhard Mechanical would settle for $7.1 million from the LSU System and $5.5 million from the State. He indicated that funding of the State’s portion would be secured through legislative appropriation.

7.

The proposal made by Mr. Marionneaux at the May 27, 2009 meeting was rejected by the LSU System. At a later date, a settlement between the LSU System and Bernhard Mechanical was approved by both parties.

8.

As Senator Marionneaux did not file a sworn statement required by R.S. 42:1111E (2) within ten days of his initial assistance to Bernhard Mechanicalor any time thereafter, the various acts of assistance provided to Bernhard Mechanical by Senator Marionneaux were prohibited by said statute.

9.

Senator Marionneaux violatedR.S. 42:1111E(2) when as an elected official, when he received or agreed to receive or both a thing of economic value for assisting Bernhard Mechanical in a transaction or in an appearance in connection with a transaction with the State of Louisiana or its officials or agencies without having filed a sworn written statement with the Board of Ethics prior to or within ten days after his initial assistance to Bernhard Mechanical Contractors, Inc.

The hearing will be held at a time and place that will be set by the Ethics Adjudicatory Board. You will be contacted by the Ethics Adjudicatory Board in order to confect a Pre-hearing Scheduling Order.

The public hearing will be conducted in accordance with the procedural requirements set forth in Section 1141E and 1143 of the Code, and in conformity with the Rules adopted by the Board, a copy of which is enclosed. At the conclusion of this public hearing, the Ethics Adjudicatory Board shall determine whether a violation has occurred and, if so, shall determine what the civil sanctions, contained in Part III, Subpart C of the Code, shall be imposed.

In order to fully cooperate with you in this matter, the designated trial attorney will, upon request, provide you with copies of all documents that may be introduced into evidence and the names and addresses of all witnesses that the designated trial attorney intends to call. If you desire the attendance of any witnesses, the Ethics Adjudicatory Board can issue subpoenas for those witnesses.

If you need any additional information, please contact Michael Dupree or Kathleen Allen, the designated trial attorneys, or Deborah Grier, the Executive Secretary, at (225) 219-5600 or (800) 842-6630.

Yours truly,

LOUISIANA BOARD OF ETHICS



Frank P. Simoneaux
For the Board

Enclosure

CERTIFIED MAIL
RETURN RECEIPT REQUESTED

cc: Lewis Unglesby
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