THIRTY-FOURTH JUDICIAL DISTRICT COURT

PARISH OF ST. BERNARD

STATE OF LOUISIANA

« A"
NO. 113-757 DIVISION "A

MICHAEL GINART, JR., INDIVIDUALLY, AND IN HIS CAPACITY AS

A MEMBER OF THE ST. BERNARD PARISH COUNCIL,
FRANK AUDERER, JR., INDIVIDUALLY AND AS A MEMBER OF
ST. BERNARD PARISH COUNCIL, RAY E. LAUGA, JR., INDIVIDUALLY,
AND AS A MEMBER OF THE ST. BERNARD PARISH COUNCIL

VERSUS

ST. BERNARD PARISH COUNCILMAN-AT-LARGE WAYNE J. LANDRY

and ST. BERNARD PARISH COUNCILMAN GEORGE CAVIGNAC

FILED: JUN 1 ? 2W \
CLERK OF COURT

/S/ALICE PERNICIARO

REASONS FOR JUDGMENT

This matter came for hearing on a Preliminary Injunction and Writ of

Mandamus on June 5, 2009. Following testimony and by consent of all parties

present, the Court made preliminary findings and reserved ruling on other issues to

allow defendants additional time to provide legal argument via additional briefs.

The briefs were received on June 15, 2009. As the next Hospital Service District

meeting is scheduled for June 17, 2009 a judgment was issued this date.

The testimony heard on June 5, 2009 established that the agenda for the

council meeting was posted in its final form timely under both the Louisiana Open

Meeting Law and the St. Bernard Council Charier. Specifically, the language of

Item 79 appeared as follows:

 "Motion to Discuss appointments to the following
boards and commissions: (Councilman Landry)

• Tourism Commission
Coastal Zone Advisory Committee
Hospital Service District"

This agenda item was included in the agenda properly posted Friday morning prior

to 11:00 a.m. Accordingly, it complied with the two business days posting

requirement of the St. Bernard Council Charter. It is, further, well over the 24

hour posting requirement of La. R.S. 42:7(b)(l). Accordingly, the Court finds that

as a matter of law the agenda item was properly posted prior to the council

meeting. However, that does not end this inquiry.

The second issue before the Court was whether the agenda item gave proper

notice to the public that appointments to the Hospital Service District were going

to be made at the council meeting. In the area of public meetings the cases are

uniform in setting forth that the underlying issue is the notice and opportunity for

the public to be informed and to participate in the deliberations of public bodies.

This requirement is spelled out in Jackson vs. Board of Commissioners for the

Housing Authority of New Orleans. C.A. 7150, 514 So.2d 628 (La. 4lh Cir. 1987).

The purpose of the Open Meeting Law is to allow the public to voice its opinion in

the decision-making process.

"While the agenda item sets forth there is to be a discussion of appointments

to three boards and commissions, that is not sufficient in light of the actual

intended purpose concerning the Hospital Service District. It is pointed out that

testimony clearly established that the council has a procedure in place which

requires all appointments to boards and commissions to have public input prior to

being considered by the council for appointment. Specifically, there are

advertisements and recommendations made for appointment to the council prior to

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the actual consideration and appointment. This obviously provides notice and

opportunity for the public to be engaged in the process. That procedure has not

applied to the Hospital Service District since its creation. It has been treated

differently. This Court does not address what is the proper procedure for

appointment to the Hospital Service District. It is clear that Councilmen Landry

and Cavignac did not feel that the regular appointment process applied to the

Hospital Service District. It is also clear that they had knowledge of the

resignations of two members of the Hospital Service District well in advance of

the meeting. That knowledge appears to have been received as early as Friday.

This information was not shared with other council members or in any way noted

on the agenda item to provide notice to the public. That failure is what renders the

agenda items to be defective as a matter of law.

The requirements of the Open Meeting Law must be strictly construed.

Every case or Attorney General's opinion which addresses this issue is clear lhal

the public has an absolute right to be informed of what public bodies are

contemplating. That does not mean that public bodies cannot address issues as

they arise. However, these exceptions are to be narrowly construed. For an item

to be added to the agenda or to expand the agenda item to consider action not

reasonably noticed, a unanimous vote of all council members is necessary. In this

case where resignations were going to be accepted and appointments made, that

needed to be on the agenda. See Attorney General opinion 90-B-A, wherein the

opinion was rendered that an agenda item must be sufficiently clear so that the

public could ascertain that the removal and reappointment of a Hospital Service

District member would be considered. Absence of this requirement makes the

action voidable by the Court if challenged within sixty (60) days. While this is not

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binding upon the Court the reasoning is persuasive, accordingly if appointments

are to be made and this is known, the failure to put this on the notice is voidable

action.

Any person is competent to seek to void any action taken in violation of the

Open Meeting Law. This is a court of complete jurisdiction and the proper venue.

There are no requirements that any administrative remedies be undertaken prior to

suit being filed. The plaintiffs can proceed as individuals without any requirement

of the council authorizing this action or being made a party. The public has a right

to be protected from decisions made without opportunities for public input. The

public further has the right to know in advance the subject matter upon which

governing bodies will deliberate and vote. Wagner vs. Beauregard Parish Police

Jury. No. 87-154, 525 So.2d 166, (La. 3rd Cir. 1988). The most compelling

reasoning for voidance of this action is found in Hayes vs. Jackson Parish School

Board, No. 24,4450C.A., 603 So.2d 274 (La. 2nd Cir. 1992) wherein the Court

voided action of the defendant School Board for violation of the Open Meeting

Law. In that case, the agenda item discussed additional space for a Head Start

Program. No mention was made concerning closure of any schools to accomplish

this action in the agenda. After discussion, a motion was made to implement a

restructuring program which would close a school, transfer its students to another

school and put the Head Start Program into the closed school. While the Court

found no evidence that the Board intended to act in secret, the Court voided the

action by finding that, in light of the knowledge of the superintendent that he was

"definitely leaning toward" this action, it needed to be placed on the agenda.

Further, no vote was taken to expand the agenda to allow consideration of the

closure.

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 In this case, the Court finds that at the time of posting the agenda, Mr.

Landry and Mr. Cavignac had knowledge that resignations to the Hospital Service

District were made or soon to be made, and vacancies would need to be filled.

While they may have felt that the agenda item as posted gave sufficient notice to

the public that two appointments were going to be made, the notice is legally

deficient. La. R.S. 42:7(b)(l) requires that the agenda item as published be

sufficiently detailed to give notice to the public that two vacancies existed on the

Hospital Service District which were going to be filled by appointment. The

action taken while beyond the agenda as published, could have been accomplished

through exceptions to the Open Meeting Law. For the agenda item to be expanded

to allow the filling of vacancies which just occurred, it is necessary that a

unanimous vote of the members present add that item to the agenda or modify the

motion. The fact that this procedure is not followed at most meetings does not

exempt it from the Open Meeting Law. Specifically, any action taken by a public

body which violates this law is voidable either by the body by a properly noticed

readdressing of the issue or by Court action within sixty (60) days. If neither is

done, then the action becomes valid. In this case, a timely suit recognized its

invalidity, and the appointments are voidable.

Any remaining exceptions filed by defendants which were not addressed

involve merit defenses to be set and heard prior to a trial on the Permanent

Injunction. These were not timely filed prior to the hearing on the Preliminary

Injunction and are considered only to address the ability of the Court to hear and

rule on the Preliminary Injunction. The Writ of Mandamus is denied as it does not

apply to the facts of this case as no public entity is a party defendant. While the

Court has made factual findings concerning the Preliminary Injunction those are

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not binding upon a determination concerning issuance of a Permanent Injunction

following a full trial after consideration of all exceptions raised and completion of

discovery.

Chalmette, Louisiana, this 17th day of June, 2009.

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