Created By: Sylvia Scott on 06/29/2010 at 02:53 PM
Category: Ethics Rulings
In the matter of
Louisiana Board of Ethics & Board Docket No. 2010-425
the Clerks of Court of Louisiana
On March 23, 2010, Attorney Randy Zinna submitted a request for a declaratory opinion on behalf of all clerks of courts in the State of Louisiana. By Act 24 of the 2008 1st Extraordinary Legislative Session, R.S. 42:1141.1 provides that on application of a person, the Louisiana Board of Ethics (“Board”) may declare rights, status, and other legal relations established by the provisions of this Chapter or by any other law within its jurisdiction or under opinions issued by the Board, either before or after there has been a breach thereof.
FACTS R.S. 42:1124.2A provides that elected officials that represent a voting district with a population of 5,000 or more shall file an annual financial disclosure statement with the Louisiana Board of Ethics. R.S. 42:1124.2C(5)(a)(i) provides that a person required to file pursuant to R.S. 42:1124.2A shall disclose the name, address, type and amount of each source of income received by the individual which is received from any of the following: (aa) the state or any political subdivision as defined in Article VI of the Constitution of Louisiana; (bb) services performed for or in connection with a gaming interest as defined in R.S. 18:1505.2L(3)(a). R.S. 42:1124.2C(5)(a)(ii) provides that income reported pursuant to R.S. 42:1124.2C(5)(a)(i) shall be reported y specific amount rather than by category of value.
All clerks of court in the State of Louisiana are required to file an annual personal financial disclosure statement with the Board pursuant to R.S. 42:1124.2. Mr. Zinna, on behalf of the clerks of court, asserts that the income earned by a clerk of court in his position as clerk of court is not required to disclose such income in specific amount as it is not received from the state or a political subdivision.
ISSUEIssue: Whether the income earned by a clerk of court in his position as clerk of court is required to be disclosed in specific amount as it is received from the state or a political subdivision?
The threshold issue is whether the clerk of court’s office is a political subdivision as defined by Article VI of the Louisiana Constitution. Article VI of the Constitution defines "political subdivision" to mean a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions. Since a clerk of court is not a "parish" or a "municipality", the question is whether or not a clerk of court is a unit of local government authorized by law to perform governmental functions. Black’s Law Dictionary, 8th Edition, defines “political subdivision” as a division of a state that exists primarily to discharge some function of local government. The Board has defined a governmental function as "those services that the law requires be performed by a governmental agency for the public's benefit." In addition, Black’s Law Dictionary, 8th Edition, defines "local government" as the government of a particular locality, such as a city or county; a governing body at a lower level than state government. The terms includes a school district, fire district, transportation authority, and any other special-purpose district or authority. Black’s Law Dictionary, 8th Edition, defines "governmental function" as a government agency's conduct that is expressly or implied mandated or authorized by constitution law or other law that is carried out for the benefit of the general public. A clerk of court does perform a governmental function for the public benefit, which is mandated by law pursuant to Article V of the Louisiana Constitution and Title 13 of the Revised Statutes.
The Board recognizes that there is no case specifically on point which clearly states that the definition of "political subdivision" contained in Article VI of the Louisiana Constitution includes a clerk of court office. However, the Board took notice that the same definition used in Article VI of the Louisiana Constitution to define "political subdivision" is used in other statutes, including the Code of Ethics; however, the definition in the Louisiana Constitution is broader than the one found in the Code of Ethics. In Safety Net for Abused Persons v. Segura, 94-1471 (La. App. 3 Cir. 6/26/96), 677 So.2d 152, the Court held that a statute requiring clerks of courts to collect certain fees and deposit such fees in a special account for nonprofit corporations violated a constitutional provision prohibiting political subdivisions from donating funds to nonprofit corporations. In Law Enforcement District of the Parish of Avoyelles v. Avoyelles Parish Police Jury, et al, 98-996 (La. App. 3 Cir. 2/03/99), 736 So.2d 842, the Court discusses the responsibility of the Avoyelles Parish Police Jury to political subdivisions of the Parish, including the Avoyelles Parish Clerk of Court as a political subdivision of the Parish. In Morgan v. Laurent, et al, 06-467(La. App. 5 Cir. 12/27/06), 948 So.2d 282, the Court was determining the liability of a parish court regarding a person injured in an accident with a car driven by a law clerk for the parish court. The Court gave examples of what constitutes a political subdivision as defined in R.S. 42:62. R.S. 42:62 defines "political subdivision" as a parish, municipality, and any other unit of local government, including a school board and special district, authorized by law to perform governmental functions. The statute goes on to state that for purposes of that part, clerks of court are a "political subdivision."
CONCLUSION After considering the arguments presented by both Mr. Zinna, on behalf of the clerks of court, and the staff of the Board, the Board concluded that a clerk of court office is a unit of local government authorized by law to perform governmental functions, and therefore, is a “political subdivision” as defined in Article VI of the Louisiana Constitution. As such, clerks of court shall disclose the income received in their position as clerk of court in specific amount as mandated by R.S. 42:1124.2C(5)(a)(i) and R.S. 42:1124.2C(5)(a)(ii).
Thus done and signed this 18th day of June, 2010, in Baton Rouge, Louisiana.
s/Frank P. Simoneaux ss/James G. Boyer
Frank P. Simoneaux, Chairman* James G. Boyer, Vice-Chairman
s/Dr. Robert P. Bareikis s/Rev. Gail E. Bowman
Dr. Robert P. Bareikis Rev. Gail E. Bowman
s/Gary G. Hymel s/Jean M. Ingrassia
Gary G. Hymel Jean M. Ingrassia
Absent and did not participate. s/Dr. Louis W. Leggio
Dr. Cedric W. Lowrey Dr. Louis W. Leggio
s/M. Blake Monrose Absent and did not participate.
M. Blake Monrose Scott D. Schneider
s/David Grove Stafford, Jr.
David Grove Stafford, Jr.
* Denotes dissenting opinion.
State of Louisiana
Board of Ethics
In Re: La. Clerks of Court Association Docket No. 2010- 425
I respectfully disagree with the majority declaratory opinion.
R. S. 42:1124.2A requires clerks of court, among other public officials, to file a financial disclosure statement that includes their income from "political subdivisions" as that term is defined in Article VI of the Louisiana Constitution. The issue posed here is whether clerks of court are "political subdivisions" for purposes of R. S. 42: 1142.2 C (5)(a)(i). The majority opinion holds that clerks of courts are "political subdivisions" of the State of Louisiana and therefore the clerks of court must report their income from that office.
The majority opinion relies on three cases. These are inapposite to the instant matter.
In Safety Net for Abused Persons v. Safety Net for Abused Persons v. Segura, 94-1471 (La. App. 3 Cir. 6/26/96), 677 So.2d 152, the issue was whether a city court could be required to collect and disburse fees to a private, non-profit group whose purpose was to assist in preventing abuse of women. The court recognized that a city court is part of the judiciary branch of government, citing Article V of the La. Constitution. It concluded: "The judicial function does not include the collection of fines and costs for the purpose of facilitating the objectives of these organizations (preventing abuse of women), no matter how noble their purpose". Accordingly, the court held that the concerned statute was unconstitutional.
Although the opinion obliquely refers to Const. Art. 7, Section 14 ( funds, property, or things of value of the state or political subdivisions may not be donated, pledged or loaned to any person, association, or corporation, private or public), the opinion does not conclude that a city court is a political subdivision. Therefore, that decision is not authority for holding that clerks of courts are "political subdivisions".
In Law Enforcement District of the Parish of Avoyelles v. Avoyelles Parish Policy Jury, et al, 98-996 (La. App. 3 Cir.2/03/090, 736 So. 2d. 842, the principal issue was whether the Avoyelles Parish Policy Jury had the authority to remove and replace members of the Gaming Revenue Distribution Committee created by the Avoyelles Parish Police Jury and authorized by state law to distribute gaming revenues to certain public bodies in Avoyelles Parish. The facts show that for the three years the Committee was in existence, the funds had been distributed to these public bodies only: the Police Jury, the School Board, the Law Enforcement District, the District Attorney, and the municipalities within Avoyelles Parish. These recipient bodies were specifically and individually designated by law. Their eligibility was not conditioned upon their being classified as a "political subdivision". The clerk of court was not a mandated recipient and never received the subject funds; hence the question of whether the clerk of court was a political subdivision was never an issue. Clearly, this case is not a precedent for determining whether clerks of courts are "political subdivisions".
In Morgan v. Laurent, 06-467 (La. App. 5 Cir.12/27/06), 948 So. 2d. 282, the issue was whether the Parish of Jefferson, the Jefferson Parish Court, or the State was liable for an alleged tort committed by a person in the scope of her part-time employment by the Parish Court. The court in detail reviewed R. S. 13: 5108.1, et seq which sets forth those employees of the judicial branch for which the State may be held vicariously liable and concluded the subject employee was not among the listed employees. The court also reviewed the relevant jurisprudence under R. S. 42: 1441.3 which provides a test for determining when political subdivisions may be held liable for torts of their employees. Finally, the court reviewed the Dual Office and Dual Employment Act (R. S. 42.62), including its definition of "political subdivision" which includes clerks of court. The opinion clearly notes that this classification is solely for purposes of determining whether a person has violated the Dual Office and Dual Employment Act.
The court ultimately concluded that a parish court is an independent governmental agency, thus a juridical entity that may be held liable for the torts of its employees. This conclusion relates in no way to whether a clerk of court is a political subdivision. Clearly, it is not a precedent for determining whether clerks of court are political subdivisions for purposes of the financial disclosure law.
Clerks of court are recognized as being in the judicial branch of government. See Const. Art. 5, "Judicial Branch", Sec. 28, "Clerks of court". That section delineates the powers and duties of the clerks of court. They have judicial and quasi judicial powers. Hood Motor Co., Inc. v. Lawrence, Sup. 1975, 320 So. 2d 111, on remand 334 So. 2d 460. Nowhere in Article 5 of the Constitution is there any mention of a "local governmental subdivision", "political subdivision" or "governing authority"; much less that one or any of the public officials in the judicial branch may be so classified. So one must conclude that none of the various public officials recognized in Article V as being in the judiciary branch of government is a local governmental subdivision, a political subdivision, or a governing authority.
Article VI of the Constitution titled "Local Government" was intended as the repository of all constitutional provisions concerning all aspects of local government. Article VI addresses the powers, duties and responsibilities of parishes, municipalities and special districts. They are either "local governmental subdivisions" or a "political subdivisions". Notably, clerks of court are not categorized as being either in Const. Art. VI. In section 44 of that article, "local governmental subdivision" is defined as a parish or municipality only. In turn, "political subdivision" is defined as a "unit of local government….authorized by law to perform governmental functions". Obviously, a unit of local government authorized to perform governmental functions is a "governing authority". In the same section, "governing authority" is defined as "the body which exercises the legislative functions of the political subdivision". So logically, each political subdivision has a governing authority. Clerks of court are not "bodies", nor do they have a governing authority, nor do they exercise legislative functions as do the governing authorities of parishes, municipalities, and special districts. See Cott Index Co. v. Jagneaux, App. 3 Cir.1996, 685 So. 2d.656, writ denied, 691 So. 2d 85, (La. 3/21/97) (office of clerk of court has no legal status but is merely a functional organization; only the clerk as an individual has legal status).
Generally, the governing authority of parishes and municipalities has the authority to create "other local governmental subdivisions". Section 7 of Article VI, "Powers of Other Local Subdivisions" has a sort of catch all purpose. It addresses the "Powers and Functions" of "other local governmental subdivisions". The section specifically prohibits the "the governing authority of a local governmental subdivision" from taking any action that affects district attorneys, sheriffs, coroners, or clerks of the district court, all of whom are public officials found in Article V, "Judiciary Branch"1 If clerks of court were in law "other political subdivision", the governing authority of the parish could affect their duties, functions and responsibilities. This clause indicates the framers of the Constitution intended to distinguish listed local public officials, including clerks of court, from "local political subdivisions".
1 Section 7 also protects the local school board and the assessor, both of which are found in other articles of the Constitution..