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BOARD OF ETHICS v. PATRICK C. MORROW, SR., ET AL.
This matter is before us on appeal by Patrick C. Morrow, Sr., Patrick C. Morrow, APLC, and Morrow, Morrow, Ryan & Bassett from an order of the Louisiana Ethics Adjudicatory Board (EAB) denying their motion for summary judgment seeking dismissal of charges levied by the Louisiana Board of Ethics (BOE) for violations of La. R.S. 42:1113(B). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Patrick C. Morrow, Sr. is an attorney with the law firm of Morrow, Morrow, Ryan & Bassett (MMRB), whose practice includes class action litigation. In 2011, Hospital Service District No. 2 of St. Landry Parish sought to appoint Mr. Morrow to the Board of Trustees of Opelousas General Hospital Authority, a Louisiana Public Trust (the Hospital). Since the Hospital is a political subdivision of the State of Louisiana and Mr. Morrow and MMRB were actively representing the Hospital in pending class action lawsuits, the Hospital's legal representative requested confirmation from the BOE that Mr. Morrow's appointment was permissible under the Louisiana Code of Governmental Ethics (the Ethics Code).
After requesting and receiving detailed information regarding Mr. Morrow's and MMRB's representation of the Hospital in the pending class action lawsuits, proposed settlements, as well as legal services contracts between the Hospital and MMRB related to the lawsuits, the BOE considered the issue at its March 16, 2012 meeting. On April 5, 2012, the BOE issued an advisory opinion that stated “the [Ethics Code] would not prohibit [Mr.] Morrow from serving as a member of [the Hospital Board] while his law firm ․ has an ongoing representation of ․ [the Hospital] in several class action lawsuits.” The advisory opinion explained, “Since the St. Landry Parish Hospital Service District No. 2 or [the Hospital] does not have the authority to direct the litigation or affect the representation by Mr. Morrow or his law firm in these class actions, there is no transaction in which Mr. Morrow is in any way interested under the supervision or jurisdiction of his board.” The advisory opinion further stated, “that Mr. Morrow would not be prohibited from providing compensated services to [his law firm] while it represents ․ [the Hospital].”
Based on the BOE's 2012 advisory opinion, Mr. Morrow accepted the appointment to the Hospital Board and, with MMRB, continued representing the Hospital in class action suits. Pertinently, in 2016, MMRB filed a class action suit on behalf of the Hospital against Louisiana Health Service & Indemnity Company, d/b/a Blue Cross/Blue Shield of Louisiana (BCBS-LA). In opposing the motion to certify the class, BCBS-LA argued that Mr. Morrow's fiduciary relationship with the Hospital created a conflict between the Hospital and the class, as well as between the putative attorneys and the class, and that Mr. Morrow's service on the Hospital Board while representing the Hospital in the litigation violated the Ethics Code. Relying on the BOE's 2012 advisory opinion, on July 29, 2019, the 27th Judicial District Court rejected the arguments and certified the class. On appeal, the Third Circuit Court of Appeal likewise rejected the arguments, citing the 2012 advisory opinion. The Louisiana Supreme Court then denied BCBS-LA's application for supervisory writ, which included the same arguments that Mr. Morrow had a conflict of interest and that his representation of the Hospital violated the Ethics Code.1 Opelousas General Hospital Authority v. Louisiana Health Service & Indemnity Co., 2019-736 (La. App. 3rd Cir. 11/12/19), 283 So. 3d 619, 627, writ denied, 2019-01848 (La. 1/28/20), 291 So. 3d 1054.
After receiving an anonymous complaint, in 2020, the BOE charged Mr. Morrow; Patrick C. Morrow, a Professional Law Corporation (PMPLC); and MMRB (hereafter sometimes referred to collectively as “Morrow”2 ) with violating La. R.S. 42:1113(B) of the Ethics Code by being “in any way interested” in MMRB's contract to provide legal representation to the Hospital in the BCBS-LA class action suit while Mr. Morrow served as an appointed member of the Hospital Board.3 Morrow filed a motion for summary judgment seeking dismissal of the charges based on the representations in the BOE's 2012 advisory opinion and their detrimental reliance thereon. In opposition, the BOE argued that the 2012 advisory opinion applied only to the specific contracts it considered in 2012 and that the doctrine of detrimental reliance was inapplicable in these proceedings. After a hearing, the EAB found that there were outstanding issues of material fact and denied the motion for summary judgment.
Morrow now appeals the adverse ruling of the EAB.4 See La. R.S. 42:1142 (providing that any person aggrieved by any action of the EAB may appeal to the First Circuit Court of Appeal); Board of Ethics in the Matter of Savoie, 2017-0077 (La. App. 1st Cir. 8/7/17), 224 So. 3d 1246, 1251 (per curiam) (interpreting La. R.S. 42:1142 to provide for an appeal of the denial of a motion for summary judgment).
In a proceeding before the EAB, after an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. Admin. Code 52:1.1102(C)(4). In determining whether summary judgment is appropriate, this court will review the evidence de novo using the same criteria governing the EAB's determination of whether summary judgment is appropriate. See Louisiana Board of Ethics in the Matter of Savoie, 2018-0102 (La. App. 1st Cir. 1/16/19), 2019 WL 244344, *3 (unpublished), writ denied, 2019-0273 (La. 4/8/19), 267 So. 3d 609; Louisiana Board of Ethics in re Fontenot, 2014-0337 (La. App. 1st Cir. 12/30/14), 2014 WL 7455199, *1 (unpublished).
If the mover will bear the burden of proof at the public hearing on the issue before the EAB in the motion for summary judgment, the burden of showing there is no genuine issue of material fact remains with the mover. If the mover will not bear the burden of proof on the subject issue at the public hearing, he is not required to negate all essential elements of the adverse party's claim, action, or defense. Rather, the mover must produce supporting evidence that points out the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. See La. Admin. Code 52:1.1102(C)(8)(a).
Once a motion for summary judgment is made and properly supported, the burden shifts to the non-moving party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Admin. Code 52:1.1102(C)(8)(b). If the non-moving party fails to produce sufficient factual support with its opposition, which proves the existence of a genuine issue of material fact, the motion for summary judgment should be granted. See La. Admin. Code 52:1.1102(C); see also Jenkins v. Hernandez, 2019-0874 (La. App. 1st Cir. 6/3/20), 305 So. 3d 365, 371, writ denied, 2020-00835 (La. 10/20/20), 303 So. 3d 315.
A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree. If reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. See Louisiana Board of Ethics in the Matter of Savoie, 2019 WL 244344 at *3. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Bolden v. Tisdale, 2021-00224 (La. 1/28/22), 347 So. 3d 697, 707 n.3.
In a case involving the BOE and EAB, this Court has held that the Code of Civil Procedure governs civil proceedings, in district court as well as administrative agency proceedings, where agency laws are silent. Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1st Cir. 12/30/14), 168 So. 3d 714, 721, writ denied, 2015-0208 (La. 4/17/15), 168 So. 3d 400; Bd. of Ethics Matter of Monsour, 2016-1159 (La. App. 1st Cir. 6/21/17), 233 So. 3d 625, 631, aff'd, 2017-1274 (La. 5/1/18), 249 So. 3d 808. Moreover, this Court has applied the specific provision of the Louisiana Code of Civil Procedure, which governs motions for summary judgment, i.e., La. C.C.P. art. 966, in similar cases. See Louisiana Board of Ethics in the Matter of Villere, 2015-1939 (La. App. 1st Cir. 12/22/16), 208 So. 3d 940, writ denied, 2017-0128 (La. 3/13/17), 216 So. 3d 807; In re Fontenot, 2014 WL 7455199 at *2; Bd. of Ethics Matter of Monsour, 233 So. 3d at 631.
Relative to this appeal, the BOE charged Morrow with violating La. R.S. 42:1113(B), which provides:
Other than a legislator, no appointed member of any board ․ or legal entity in which he has a substantial economic interest shall ․ enter into or be in any way interested in any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such appointed member.
The charges were based on Morrow 5 being “in any way interested” in the 2016 contract by which the Hospital engaged MMRB to represent it in the class action suit that was filed against BCBS-LA. Morrow contends they are entitled to summary judgment dismissing the charges under La. R.S. 42:1113(B) based on the BOE's 2012 advisory opinion.
Morrow argues that according to the BOE's 2012 advisory opinion, once the BCBS-LA suit was certified as a class action, the contract was no longer under the supervision or jurisdiction of the Hospital. Thus, Morrow contends that they have pointed out an absence of factual support for an essential element to the BOE's charge. Alternatively, Morrow asserts that they detrimentally relied on the 2012 advisory opinion's advice that Mr. Morrow's continued representation of the Hospital in class action litigation while serving on the Hospital Board would not violate the Ethics Code. Although the two arguments are presented as alternatives, both are based on the advice the BOE gave in its 2012 advisory opinion.
This Court initially considered the instant appeal before a three-judge panel. After no clear majority was reached, pursuant to Article V, Section 8 of the Louisiana Constitution of 1974, the matter was reconvened and reargued before a five-judge panel of this Court. After de novo review, a majority of the five-judge panel, three judges, determined that the order of the EAB denying Morrow's motion for summary judgment should be affirmed. Because the judges in the majority, however, would affirm the EAB's order for different reasons, we issue this per curiam opinion affirming the EAB's order denying the motion for summary judgment. The concurring opinions and reasons of the majority judges expressing the basis of their decision to affirm, as well as any dissenting opinions, are attached hereto.
The partial motion to strike filed by the Board of Ethics is denied. The Ethics Adjudicatory Board's order denying the motion for summary judgment is affirmed. This matter is remanded to the Ethics Adjudicatory Board for further proceedings. Costs of this appeal are assessed to Patrick C. Morrow, Sr., Patrick C. Morrow, APLC, and Morrow, Morrow, Ryan & Bassett.
PARTIAL MOTION TO STRIKE DENIED AS MOOT; ORDER DENYING MOTION FOR SUMMARY JUDGMENT AFFIRMED; REMANDED.
I write separately to express my opinion that I agree to affirm the decision of the Ethics Adjudicatory Board denying summary judgment because I do not believe that detrimental reliance/estoppel principles may be applied as a defense in this matter.
The Board of Ethics is specifically authorized to render advisory opinions regarding interpretations of the Code of Ethics. See La. R.S. 42:1134(E). There is no constitutional authority for judicial review of advisory opinions, as an “advisory opinion” is not a “decision” of the Board. Duplantis v. Louisiana Board of Ethics, 2000-1956 (La. 3/23/01), 782 So. 2d 582, 587; see and compare La. R.S. 42:1142 and La. R.S. 42:1134(E). The applicant for an advisory opinion is placed in no different position after he receives the advisory opinion than he was before the issuance of advice. Duplantis, 782 So. 2d at 587-588. Advisory opinions of the Board are similar to opinions issued by the Attorney General pursuant to La. R.S. 49:251, which are likewise not reviewable by a court. Duplantis, 782 So. 2d at 590 n.7.
In Louisiana Board of Ethics v. Holden, 2012-1127 (La. App. 1st Cir. 6/25/13), 121 So. 3d 113, 117 n.7, this court, relying on Duplantis, recognized the persuasive authority of advisory opinions. This court further held in In re Louisiana Board of Ethics, 2013-1602 (La. App. 1st Cir. 3/21/14), 2014 WL 1165873, *6 (unpublished), that:
[A]n advisory opinion issued by the Ethics Board is merely advice as to the conduct of a person under the Ethics Code; it is not a ruling or an action by the Board of Ethics that will affect a person whose status or conduct is questioned, and it cannot be enforced by any person. Duplantis, 782 So.2d at 590. In giving this advice, the Ethics Board acts as a disinterested party. Id. [Emphasis added.]
With these precepts in mind, we turn to the theory of detrimental reliance. Detrimental reliance is provided for in La. C.C. art. 1967, which provides:
Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee's reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.
To establish a claim of detrimental reliance, a party must prove that: (1) the defendant made a promise to the plaintiff; (2) the defendant knew or should have known that the promise would induce the plaintiff to rely on it to his detriment; (3) the plaintiff relied on the promise to his detriment; (4) the plaintiff was reasonable in relying on the promise; and (5) the plaintiff suffered damages as a result of the reliance. Harris v. Board of Supervisors of Community & Technical Colleges, 2021-0844 (La. App. 1st Cir. 2/25/22), 340 So. 3d 1121, 1125-1126.
In order to determine a detrimental reliance claim against a governmental agency, courts should apply the following factors: (1) unequivocal advice from an unusually authoritative source; (2) reasonable reliance on that advice; (3) reliance on that advice resulted in extreme harm; and (4) gross injustice will occur in the absence of judicial estoppel. Nucor Steel Louisiana, LLC v. St. James Parish School Board, 2021-01814 (La. 6/29/22), 346 So. 3d 272, 274 n.3 (citing Showboat Star Partnership v. Slaughter, 2000-1227 (La. 4/3/01), 789 So. 2d 554, 562). A document prepared by the governing agency and promulgated for the purpose of use by the general public constitutes an “unusually authoritative source” on which people can rely, as opposed to advice rendered by an agent or employee of the agency. Cf. CHL Enterprises, LLC v. State, Department of Revenue, 2009-487 (La. App. 3rd Cir. 11/4/09), 23 So. 3d 1000, 1007, writ denied, 2009-2613 (La. 2/12/10), 27 So. 3d 848.
The basis of a claim of detrimental reliance is the idea that a person should not harm another person by making promises that he will not keep. Wharton v. Bell, 2010-0377 (La. App. 1st Cir. 10/25/10), 2010 WL 4163737, *5 (unpublished), writ denied, 2011-0176 (La. 4/1/11), 60 So. 3d 1251. However, the doctrine of detrimental reliance is not favored in Louisiana law, and all claims must be examined strictly and carefully. La. Office of Risk Management v. Richard, 2013-0890 (La. 10/15/13), 125 So. 3d 398, 402.
In analyzing a detrimental reliance claim, this court has defined a “promise” as follows:
A promise is a declaration which binds the person who makes it, either in conscience or law, to do a specific thing, which then gives to the other person a right to expect or claim the performance of that thing. Another definition of a promise is that it is an offer which is definite and certain and which the promisor intends to be binding. A promise must be dear and unambiguous in order to be enforceable. The mere expression of an intention is not a promise.
Harris, 340 So. 3d at 1126.
In order to avail himself of the defense of detrimental reliance, Morrow was required to establish that the advisory opinion constituted a “promise” and that their reliance on the advisory opinion was “justifiable” or “reasonable.” Considering this court's pronouncement that an advisory opinion is “merely advice,” which cannot be enforced, we find that Morrow has failed to establish that the advisory opinion set forth a clear and unambiguous promise to them.
Considering the jurisprudence set forth above, I believe that the persuasive authority of an advisory opinion of the Board of Ethics is insufficient to support a claim of detrimental reliance. Thus, while I believe the ethics advisory opinion provides an analytical framework, which is useful to determine whether a violation has occurred, and that reliance upon such an opinion may serve as a mitigating factor if it is ultimately determined that the respondents have violated Louisiana ethics laws, I do not believe that an advisory opinion of the Board of Ethics is sufficient to support a claim of detrimental reliance.
GUIDRY, C.J., concurring.
I adopt the reasons stated by Judge Miller in his concurring opinion for finding that summary judgment was properly denied in this matter. Additionally, for the following reasons, I further find the appellants failed to meet their burden of proving that no genuine issue of material fact exists as to whether, as a matter of law, the 2012 advisory opinion could be interpreted to expressly allow the appellants to enter into the 2016 contract with Opelousas General Hospital Authority (“OGHA”) to represent OGHA in a class action suit against Louisiana Health Service & Indemnity Company, doing business as Blue Cross Blue Shield of Louisiana (BCBS-LA), or whether it was reasonable for the appellants to so believe. I also adopt the reasons stated by Judge Penzato in her concurring opinion finding the unsigned and un-notarized affidavit submitted by Patrick Morrow lacks evidentiary value and therefore fails to establish an essential element of his detrimental reliance claim (i.e., his “reasonable reliance” on the 2012 advisory opinion).
The 2012 advisory opinion expressly includes the following caveat: “This advisory opinion is based solely on the facts as set forth herein. Changes to the facts as presented may result in a different application of the provisions of the Code of Ethics.” It is undisputed that a contract for the appellants to represent OGHA with respect to the BCBS-LA litigation did not exist at the time the advisory opinion was issued, as that representation agreement was signed in 2016. Thus, that change in the “facts” that existed at the time the Board of Ethics (BOE) issued the 2012 advisory opinion could support a different application of the Code of Ethics.
Moreover, the 2012 advisory opinion expressly made note of OGHA's lack of authority “to direct the litigation or affect the representation” by the appellants as support for the conclusion that there were no transactions in which the appellants were in “any way interested under the supervision or jurisdiction of [the OGHA] board.” So even construing the advisory opinion as authorizing the appellants to continue to represent OGHA in class action litigation in general, the record shows that the BCBS-LA litigation was not certified as a class action until 2019. Thus, pending that certification, questions exist as to whether OGHA could direct the litigation, or more importantly, affect representation by the appellants, up until that time.
It is recognized that the 2012 advisory opinion found no violation of the ethics code with respect to the appellants’ continued representation of OGHA in the suit against Fairpay Solutions, Inc., which litigation was never certified as a class action. However, a settlement was reached in that litigation prior to the issuance of the advisory opinion and prior to Patrick Morrow joining the OGHA Board. Hence, that distinguishing fact likewise impacts the applicability of the advisory opinion to the appellants’ representation of OGHA in the BCBS-LA litigation.
Therefore, for the above reasons and for those expressed in Judges Penzato and Miller in their concurrences, I respectfully concur in the per curiam opinion affirming the denial of the motion for summary judgment.
I agree with the result reached in this per curiam. I write separately to note that Morrow failed to offer sufficient evidence to satisfy the applicable summary judgment burden of proof. La. Admin. Code 52:1.1102(C)(4); La. C.C.P. art. 966(D)(4). As stated in the per curiam, this court has applied La. C.C.P. art. 966, which governs motions for summary judgment, in similar ethics proceedings. See Board of Ethics Matter of Monsour, 2016-1159 (La. App. 1st Cir. 6/21/17), 233 So.3d 625, 631, writ granted, 2017-1274 (La. 12/5/17), 231 So.3d 623, and affirmed, 2017-1274 (La. 5/1/18), 249 So.3d 808; Louisiana Board of Ethics in the Matter of Villere, 2015-1939 (La. App. 1st Cir. 12/22/16), 208 So.3d 940, 949, writ denied, 2017-0128 (La. 3/13/17), 216 So.3d 807; In re Fontenot, 2014-0337 (La. App. 1st Cir. 12/30/14), 2014 WL 7455199, *2 (unpublished).
The “affidavit” offered by Mr. Morrow, which purports to establish facts in support of Morrow's detrimental reliance cause of action, is not signed or notarized and, therefore, has no evidentiary value. Although the court must consider any summary judgment evidence to which no objection is made, we must also decide de novo whether we should give the documents any evidentiary value. La. C.C.P. art. 966(D)(2); Hernandez v. Livingston Parish School Board, 2021-0764 (La. App. 1st Cir. 3/30/22), 341 So.3d 680, 684 n.2; Pottinger v. Price, 2019-0183 (La. App. 1st Cir. 10/23/19), 289 So.3d 1047, 1053. Unsworn or unverified documents annexed to a motion for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence. Velocity Investments, LLC v. Pasqua, 2022-0626 (La. App. 1st Cir. 1/10/23), — So.3d —, 2023 WL 142715, *3 n.6.
Additionally, the April 2012 Advisory Opinion applied only to the facts before the Board of Ethics (BOE) and expressly stated, “This advisory opinion is based solely on the facts as set forth herein. Changes to the facts as presented may result in a different application of the provisions of the Code of Ethics.” At the time, Morrow had not yet been appointed to the Hospital Board, and the referenced cases were certified as class actions and/or had settled. The Opinion and any finding by the BOE that the contracts discussed therein were not under the Hospital Board's “supervision or jurisdiction” did not apply to the Blue Cross contract entered in 2016, after Morrow's appointment to the Board.
For these reasons, Morrow's motion for summary judgment was properly denied. Because Morrow failed to satisfy the summary judgment burden of proof, I find no need to determine whether an advisory opinion issued by the BOE can ever form the basis of a detrimental reliance cause of action.
The theory of detrimental reliance is that “[a] party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying.” La. Civ. Code art. 1967. To prevail on a detrimental reliance claim against a government agency, the party asserting the claim must prove: (1) unequivocal advice from an unusually authoritative source; (2) reasonable reliance on that advice; (3) reliance on that advice resulted in extreme harm; and (4) gross injustice will occur in the absence of judicial estoppel. Nucor Steel Louisiana, LLC v. St. James Parish School Board, 2021-01814 (La. 6/29/22), 346 So.3d 272, 274 n.3.1
Morrow proved each element of their detrimental reliance claim. Morrow received an advisory opinion from the BOE, the government agency charged with administering and enforcing the Ethics Code - an undisputedly authoritative source. See La. R.S. 42:1134(E); Duplantis v. Louisiana Board of Ethics, 2000-1750 (La. 3/23/01), 782 So.2d 582, 586. In the advisory opinion, the BOE unequivocally advised that the Ethics Code would not prohibit Mr. Morrow from serving on the Hospital Board while MMRB represented the Hospital in class action lawsuits. In the advisory opinion the BOE did reference specific pending class action lawsuits; however, the advisory opinion did not limit its application to those lawsuits alone. Instead, the BOE explained that its advice was broadly based on its interpretation of the particular nature of class action procedure. Thus, Morrow established that its reliance on that advice in contracting to represent the Hospital in the BCBS-LA class action was reasonable.2 As a result of the contract Morrow entered based on the advice given in the 2012 advisory opinion, the BOE charged Morrow with violating the Ethics Code and Morrow faces the imposition of penalties by the EAB. See La. R.S. 42:1153(B); La. R.S. 42:1155(A). Considering this, Morrow established that gross injustice will occur in the absence of judicial estoppel.
Although the BOE submitted evidence in opposition to the motion for summary judgment, it failed to establish a genuine issue of material fact or that Morrow was not entitled to judgment as a matter of law. The BOE's argument that the contract was entered after Mr. Morrow's appointment to the Hospital Board is unpersuasive since the BOE did not limit the advice provided in its advisory opinion to the cases in which contracts for legal representation were entered prior to Mr. Morrow's appointment to the Hospital Board. The BOE's additional argument that the contract for legal representation in the BCBS-LA case is “vastly different” from the facts considered in 2012 is undermined by the advisory opinion itself. In the 2012 advisory opinion the BOE recognized that MMRB represented the Hospital in a pending class action suit against Fairpay that was stayed pending settlement. Despite the pre-class certification posture of the Fairpay suit, the BOE advised that Mr. Morrow's appointment to the Hospital Board would not violate the Ethics Code. In fact, the BOE recognized and sanctioned MMRB's efforts to finalize a settlement on behalf of the Hospital. Most importantly, it is undisputed that the BCBS-LA suit was filed as a class action and the class was certified before the charges against Morrow were filed. See Opelousas General Hospital Authority v. Louisiana Health Service & Indemnity Co., 2019-736 (La. App. 3rd Cir. 11/12/19), 283 So.3d 619, 623, writ denied, 2019-01848 (La. 1/28/20), 291 So.3d 1054 (stating the class was certified on July 29, 2019). In the minute entry offered by the BOE, the BOE explained that once a class is certified “the contract [MMRB] entered prior to the firm's appointment by the Court as legal counsel for the class no longer controls and it is basically meaningless.” (Emphasis added.) Thus, according to the BOE's stated interpretation of class action procedure, the contract on which it based these charges no longer controls and was rendered “basically meaningless” by the class certification.
For these reasons, I would reverse the EAB's order that denied the motion for summary judgment, grant summary judgment, and dismiss the charges at issue. I dissent from the majority's decision to the contrary.
1. BCBS-LA's application for supervisory writs to the Louisiana Supreme Court is included in the record on appeal.
2. In the record, Mr. Morrow is described as the sole owner and operator of PMPLC, which is a partner in the law firm of MMRB, a Louisiana Partnership. Although the charges against Mr. Morrow, PMPLC, and MMRB were separately filed, the matters were consolidated by the EAB and the motion for summary judgment was presented jointly. They likewise filed a joint appellate brief on appeal.
3. In its appellate brief, the BOE acknowledges that Mr. Morrow resigned his position on the Hospital Board in 2020.
4. The BOE additionally charged Mr. Morrow with violating La. R.S. 42:1111(C)(2)(d) by receiving payments for services rendered by PMPLC/MMRB at a time when he served as a member of the Hospital Board and at a time when MMRB had a contractual relationship with the Hospital. With respect to that charge, Mr. Morrow filed both a motion for summary judgment, which the EAB denied, and a peremptory exception of prescription, which the EAB overruled. Those rulings are addressed in the companion appeal, Board of Ethics v. Morrow, 2022-0245 (La. App. 1st Cir. _/_/23), ___ So. 3d ___. After appeals of the two rulings were lodged, the BOE filed a motion to strike those portions of the appellants’ brief filed in this appeal that relate to issues raised in the companion appeal. Since this Court has consolidated the appeals of the two rulings for purposes of argument and submission, the motion is denied as moot.
5. For purposes of the motion for summary judgment, there is no dispute that PMPLC and MMRB are legal entities in which Mr. Morrow has a substantial economic interest and are therefore subject to the provisions of the Ethics Code.
1. The EAB considered the motion for summary judgment prior to the Nucor Steel decision, which clarified that the legal standard applied by the EAB is applicable to private parties, not governmental agencies. Nucor Steel, 346 So.3d at 274.
2. The request for advisory opinion established that its purpose was to provide guidance for Mr. Morrow's acceptance of the position on the Hospital Board. To further establish his reliance on the BOE's advice, Mr. Morrow also submitted his own affidavit in which he attested that he would not have accepted the position without the BOE's favorable advisory opinion. Although Mr. Morrow's affidavit was not signed and was not in proper form, the BOE raised no objection to its consideration and the EAB did not exclude it as incompetent. See Admin. Code art. 52:1.1102(C)(6) (providing the EAB may exclude incompetent, irrelevant, or immaterial, and unduly repetitious evidence); and 52:1, 1102(C)(7) (permitting objections to offered evidence). Since deference is owed to an administrative agency's construction and interpretation of its own rules and regulations, and since the EAB itself did not exclude the affidavit, then we must consider the affidavit as part of our de novo review. See Winmill Tire, LLC v. Colt, Inc., 2020-01446 (La. 1/28/22), 333 So.3d 414, 421; see also Ellis v. Circle L Trucking, L.L.C., 2021-0457 (La. App. 1st Cir. 12/30/21), 340 So.3d 985, 991 (finding that in a summary judgment proceeding governed by the Louisiana Code of Civil Procedure, an unsigned affidavit to which there was no objection must be considered by this court in conducting de novo review).
Miller, J. concurs and assigns reasons. Penzato, J. concurs and assigns reasons. Guidry, C.J. concurs and assigns reasons. Hester, J. dissents for reasons assigned by J. Wolfe. Wolfe, J. dissents and assigns reasons.
Response sent, thank you
Docket No: NO. 2022 CA 0241, consolidated with 2022 CA 0242
Decided: May 08, 2023
Court: Court of Appeal of Louisiana, First Circuit.
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