STATE OF LOUISIANA DIVISION OF ADMINISTRATIVE LAW

ETHICS ADJUDICATORY BOARD

BOARD OF ETHICS * * DOCKET NO. 2011-6158-ETHICS-A

*

IN THE MATTER OF * *

DONALD VILLERE * AGENCY TRACKING NO. 2010-176

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ORDER ON MOTION IN LIMINE AND MOTION FOR SUMMARY DISPOSITION

Donald Villere’s Motion in Limine and Motion for Summary Disposition are granted.

APPEARANCES

A motions hearing was conducted July 24, 2015, in Baton Rouge before Ethics

Adjudicatory Board Panel A. Lawrence Centola and Jason Landry appeared as counsel for

Donald Villere. Tracy Barker and Kathleen Allen appeared as counsel for the Board of Ethics.

PROCEDURAL HISTORY

The Board of Ethics (BOE) deposed Donald Villere (Respondent) on March 3, 2011, and

issued formal charges against him on March 17, 2011. On June 29, 2011, the BOE notified the

Division of Administrative Law (DAL) of its intent to depose Respondent a second time.1 The

BOE requested the second deposition of Respondent because it said it needed to question

Respondent regarding newly discovered evidence and documents that it claimed went directly to

the existence of Respondent’s knowledge of alleged false statements, which were part of the

1 See BOE’s June 29, 2011, Notice of Taking Deposition (attached to Respondent’s Motion to Quash Notice of Second Deposition and Subpoena).

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basis of the charges issued against him for violating La. R.S. 42:1130.4.2

The BOE’s letter accompanying the notice requested that the DAL issue a subpoena to

Respondent ordering him to appear at a deposition. The DAL issued the subpoena on July 1,

2011. Respondent filed a Motion to Quash the subpoena, which the EAB denied.3 The parties

agreed to stay the deposition pending Respondent’s writ applications to the First Circuit Court of

Appeal and the Louisiana Supreme Court. Both courts denied the writs.

Following the First Circuit’s decision in Ellis v. Louisiana Bd. of Ethics,4 Respondent

filed the Motion in Limine and Motion for Summary Disposition, which are the subject of this

decision.5

STATEMENT OF THE CASE

The matter is before the Ethics Adjudicatory Board (EAB) on the Motion in Limine and

the Motion for Summary Disposition filed by Respondent.

The BOE issued charges on March 17, 2011, against Respondent alleging that he violated

La. R.S. 42:1130.4 when, while he was a candidate for public office, he distributed or caused to

be distributed, with the intent to mislead voters, a campaign flyer and a campaign-related email

(collectively, “campaign statements”), which he knew contained false statements regarding his

opponent, Ms. Trilby Lenfant.

2 See BOE’s Response to the Original Application of Donald Villere for Writs of Certiorari and Supervisory Review of the Ethics Adjudicatory Board’s Denial of the Motion to Quash Notice of Second Deposition and Subpoena Filed on Behalf of Donald Villere, Exhibits A (Request for Subpoena and Subpoena Duces Tecum), F (electronic mail exchanges between attorneys for both parties), and J (BOE’s June 29, 2011, Answers to First Set of Interrogatories Propounded by Donald Villere to the Louisiana Board of Ethics, Answer to Interrogatory No. 9), and p. 6 (addressing documents the BOE received from Debbie Smith after it interviewed her on March 10, 2011). The BOE claimed, “It is beyond reasonable, and an absolute certainty, that these documents are the most relevant proof of the Respondent’s knowledge, or lack of knowledge, as to the truth or falsity of the information published in the brochure.” 3 Respondent contended that he had already been deposed by the BOE and that the BOE failed to show good cause why a second deposition was necessary. 4 Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1 Cir. 12/30/14), 168 So. 3d 714, writ denied, 2015-0208 (La. 4/17/2015), 168 So. 3d 400. 5 The BOE filed oppositions to both motions.

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Respondent filed a Motion in Limine seeking an order to preclude the BOE from using

evidence it discovered after it filed charges against him. Respondent also filed a Motion for

Summary Disposition seeking dismissal of the charges, claiming that the BOE lacked evidentiary

support for a prima facie case when it issued formal charges against him, that there are no

genuine issues of material fact, and that the BOE cannot prove with clear and convincing

evidence all components of the charges.

The EAB heard oral arguments, admitted documents into evidence, and took the matter

under advisement.

STATEMENT OF FACTS

The following are undisputed facts based on evidence admitted at the hearing on the

motions.

1. Respondent was a candidate for the Office of Mayor of the City of Mandeville in the March 27, 2010, election; 6 he won the election by a majority vote.7

2. Respondent’s opponent in the March 27, 2010, election was Ms. Trilby Lenfant.8

3. Ms. Lenfant was a member of the Mandeville City Council after winning the March 9, 2004, and March 9, 2008, elections.9

4. On March 23 or 24, 2010, Respondent distributed or caused to be distributed a written campaign flyer entitled “Ms. Lenfant claims to be a reformer,”10 which contained the following statements,11 quoted verbatim with original emphasis shown: a) On Ms. Lenfant’s 2009 personal finance disclosure report, she reports that her

husband works for the same insurance company that provided the City’s insurance. And she VOTED THREE TIMES to give the contract to her husband’s company.

6 See BOE Exhibit A, p. 1 (affidavit of Trilby Lenfant) and BOE Exhibit B (deposition of Respondent). 7 Respondent received 1,372 votes; Trilby Lenfant received 1,369 votes. Exhibit D of BOE Exhibit I, Certified final election results, Louisiana Secretary of State. 8 See Exhibit D of BOE Exhibit I. 9 See Exhibit C of BOE Exhibit I. 10 Exhibit 1 of BOE Exhibit A. 11 The campaign flyer contains other statements, but these are the statements the BOE claims violated La. R.S. 42:1130.4. See BOE’s Memorandum in Opposition of Motion for Summary Judgment, pp. 12-15.

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b) Ms. Lenfant’s husband is an officer of The Preserve, LLC and in business with Rene

Ferran. Ms. Lenfant has been the director, president of The Preserve Owners Association, Inc. Ms. Lenfant introduced and VOTED FOR legislation, Ordinance 05-05, authorizing the city to purchase property from none other than her husband’s partner in The Preserve, LLC, Rene Ferran.

c) Again, as mayor pro tem, Ms. Lenfant VOTED FOR and signed legislation to rezone

a lot, Ordinance 09-35, owned by her husband’s partner, Rene Ferran, into two lots, increasing the amount of money they would make on the property.

d) Ms. Lenfant’s house in The Preserve is appraised at nearly $560,000. However, her next-door neighbor’s house is for sale at $1.6 million. Lots in The Preserve sell for about $300,000, and the average home value ranges from $1.4 to $1.8 million.

e) On Ms. Lenfant’s 2009 personal finance disclosure report, in addition to her personal property in The Preserve that gets the homestead exemption, Ms. Lenfant:

owns an additional 124 acres in The Sanctuary, but she’s only paying $2,307.02 in property taxes.

owns another 98 acres in The Sanctuary, but she’s only paying $157.41 in property taxes. In both cases, she is claiming a special exemption for a reduction in property taxes.

Is she really paying her fair share of property taxes or is she getting special treatment?

f) After Hurricane Katrina, Ms. Lenfant took city-owned portable air conditioners and generators for her personal use. This city-owned property was not returned until instructed to do so by the legislative auditors — 4 YEARS LATER!

g) It’s funny how Ms. Lenfant voted for a six-inch, fill-limit ordinance only AFTER she filled her personal property with six feet of fill.

5. On March 25, 2010, Respondent distributed or caused to be distributed a written e-mail

entitled “You Be the Judge,”12 which stated:

Dear Neighbor, My recent mailer detailing Ms. Lenfant’s highly questionable behaviors as your City Councilperson is based on extensively-researched and proven facts. Ms. Lenfant’s response offers an abundance of political clichés designed to deflect her responsibility for each of these truths. Her robo-call was full of

12 BOE Exhibit F.

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political rhetoric and posturing. My opponent offers no reasonable response; she cries foul, but she gives no information for you the voter to consider. Every item in the mailer is public record and true. Once these facts were made known to me, I felt it my civic responsibility to make sure that you had all the facts before you voted. You be the judge on Saturday. You decide who will best serve you as Mayor of your city. Sincerely, Donald Villere.

6. Respondent hired a political consultant, Debbie Smith, to assist him with the creation of

the campaign flyer.13

7. The BOE received a confidential complaint14 on March 26, 2010, alleging that Respondent distributed campaign materials before the March 27, 2010, mayoral election for the City of Mandeville, which he knew contained false and/or misleading statements about his opponent in the election, Trilby Lenfant.15

8. The March 7, 2011, Investigation Report expressly recognized that La. R.S. 42:1130.4 requires that the accused have knowledge that the statements were false at the time of distribution; it also expressly recognized that Respondent testified that he believed everything in the flyer was truthful.16

9. The BOE relied on the March 7, 2011, Investigation Report when it issued formal charges against Respondent.17

10. During the investigation, the BOE deposed Respondent;18 interviewed Respondent’s paid political consultant, Debbie Smith;19 interviewed Trilby Lenfant,20 Jay Lenfant,21 Randy Dixon,22 and David Glass;23 reviewed information on websites;24 and reviewed various documents.25

13 See BOE Exhibit B (Respondent’s March 3, 2011 deposition) and Exhibit G of BOE Exhibit I (March 10, 2011, interview of Debbie Smith). 14 In arguments and briefs before the First Circuit Court of Appeal, on Writ of Certiorari from the Division of Administrative Law, both parties refer to the complainant as Trilby Lenfant. See Villere v. Louisiana Bd. of Ethics, 2011-1309 (La. App. 1 Cir. 3/30/12), Footnote No. 1. 15 BOE’s Memorandum in Opposition of Motion for Summary Judgment, p. 5. 16 See BOE Exhibit I. 17 See BOE’s Memorandum in Opposition of Motion for Summary Judgment, p. 5 (filed February 5, 2015). 18 BOE Exhibit B (March 3, 2011, deposition by Aaron Brooks, attorney for the BOE). 19 Exhibit G of BOE Exhibit I (March 10, 2011, interview conducted by Tolliver Bozeman, BOE investigator). 20 Exhibit S of BOE Exhibit I (January 27, 2011, interview conducted by Tolliver Bozeman, BOE investigator). 21 Exhibit H of BOE Exhibit I (May 13, 2010, interview conducted by Tolliver Bozeman, BOE investigator). 22 Exhibit Y of BOE Exhibit I (February 28, 2011, interview conducted by Tolliver Bozeman, BOE investigator). Mr. Dixon is an engineer with Krebs, LaSalle, LeMieux Consultants. During the interview, he opined that Ms. Lenfant did not use 6 feet of fill on her property.

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11. Debbie Smith told the BOE’s investigator that Respondent’s campaign was ultimately responsible for the accuracy of the information in the flyer, but she stated multiple times that she wanted her work product to be accurate.26

12. Debbie Smith told the BOE’s investigator that, while working on the campaign flyer, she checked publicly available documents, received data from websites, obtained information from Mandeville City Councilman Jerry Coogan, created multiple versions of the flyer, and was personally very familiar with The Sanctuary and The Preserve subdivisions.27

13. During his March 3, 2011, deposition, Respondent testified that he believed that all of the statements in the flyer were true at the time of distribution and continued to believe in their truthfulness on March 3, 2011.28

14. During his March 3, 2011, deposition, Respondent testified that he relied on his personal knowledge for some of the statements in the campaign flyer, and he testified that he frequently met with Jerry Coogan and discussed the election and Respondent’s campaign.29

15. At the March 3, 2011, deposition, Respondent produced several documents that he claimed to have relied on when creating the campaign flyer.30

16. The BOE issued charges on March 17, 2011, alleging that Respondent violated La. R.S. 42:1130.4.

23 Exhibit Z of BOE Exhibit I (January 19, 2004, invoice for fill dirt; February 28, 2011, interview conducted by Tolliver Bozeman, BOE investigator). Mr. Glass, of Glass Contracting, Inc., opined that he did not think six feet of fill dirt was needed or used on the property of Trilby Lenfant. 24 Louisiana Secretary of State, St. Tammany Parish Assessor’s Office, and Travelers Insurance. 25 City ordinances, Respondent’s campaign flyer, Respondent’s campaign email, minutes of meetings of the Mandeville City Council, an elevation certificate pertaining to Ms. Lenfant’s property, a Times Picayune editorial, a City of Mandeville Compliance Audit, handwritten notes taken by Debbie Smith, and documents related to The Sanctuary and The Preserve subdivisions. 26 See Exhibit G of BOE Exhibit I, March 10, 2011, interview of Debbie Smith. 27 See id. 28 BOE Exhibit B (Respondent’s March 3, 2011 deposition), pp. 50-51. 29 See BOE’s Memorandum in Opposition of Motion for Summary Judgment, p. 34, referencing BOE Exhibit B, “Sworn Statement of Donald Villere, pp. 30, 33, 46, and 47”. 30 The following documents are included as exhibits to BOE’s Exhibit I (Respondent’s deposition): records from the St. Tammany Parish Assessor’s Office regarding property owned by the Lenfants (Exhibit A); a map of The Preserve and The Sanctuary subdivisions (Exhibit B); documentation, including a Schedule H – Immovable Property, records from the St. Tammany Parish Assessor and the Louisiana Secretary of State, pertaining to The Preserve, LLC, The Preserve Owners Association, Inc., and properties owned by the Lenfants (Exhibit C); minutes of the August 1, 2008, meeting of the Mandeville City Council (Exhibit D); newspaper articles and minutes of the August 14, August 28, and September 11, 2008, meetings of the Mandeville City Council (Exhibit E); newspaper articles and minutes of the January 14, 2010, meeting of the Mandeville City Council (Exhibit F); pictures regarding the proper dirt fill for driveways (Exhibit G); Ordinance No. 02-23 of the Mandeville City Council adopted September 12, 2002 (Exhibit H); a timeline regarding Traveler’s Insurance (Exhibit I); and an Insurance Journal article regarding the merger of Traveler’s Insurance and St. Paul Insurance (Exhibit J).

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17. The BOE had until March 26, 2011, to complete its investigation and issue formal charges against Respondent.31

18. After the BOE filed charges against Respondent, it a. Deposed Jerry Coogan on May 24, 2011, b. Deposed Respondent a second time on October 4, 2013, c. Received an affidavit from Trilby Lenfant on February 5, 2014, and d. Received an affidavit from John L. Lenfant IV on February 5, 2014.

This adjudication is conducted in accordance with the Code of Governmental Ethics,

Louisiana Revised Statutes (La. R.S.) 42:1101, et seq. and the Administrative Procedure Act, La.

R.S. 49:950, et seq.

CONCLUSIONS OF LAW

The Motion in Limine and Motion for Summary Disposition are granted.

Motion in Limine

Before the BOE is allowed to file formal charges against someone for violation of the

Code of Ethics, it must first determine that there are factual grounds for the charges.32 A

private investigation shall be conducted to elicit evidence upon which the BOE shall determine

whether a public hearing should be conducted or that a violation has not occurred.33 During

the course and scope of the private investigation, subpoenas, as well as subpoenas duces tecum,

and interrogatories may be issued to anyone with information regarding the matter being

investigated.34 The case is not made public until (a) the BOE gathers the evidence it will use to

determine whether charges are filed; and (b) the BOE votes to file formal charges.35

31 La. R.S. 42:1141(C)(3)(c). 32 See La. R.S. 42:1141(C)(1) and Louisiana Administrative Code (LAC) 52:I.802, 803, and 808. 33 La. R.S. 42:1141(C)(1). 34 La. R.S. 42:1141.4(B)(1); LAC 52:I.804 (June 2013). 35 La. R.S. 42:1141(C)(3)(a); see also Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1 Cir. 12/30/14), 168 So. 3d 714, writ denied, 2015-0208 (La. 4/17/2015), 168 So. 3d 400.

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Respondent filed a Motion in Limine seeking an order precluding the BOE from using

evidence it discovered after it filed charges against him on March 17, 2011.36 Respondent

argued that the BOE filed formal charges prior to completing its investigation to ascertain the

existence of factual grounds for the charges. At the hearing on the Motion in Limine, the BOE

claimed that it had concluded its investigation and had a prima facie case prior to filing formal

charges against Respondent, as required by the recent decision in Ellis v. Louisiana Bd. of

Ethics.37 However, the BOE argued that it should be allowed an opportunity to further

investigate and/or conduct discovery, pursuant to La. C.C.P. art. 863(B)(3).38 Based on the Ellis

decision, Respondent argued that its Motion in Limine should be granted and that the BOE

should not be allowed to continue its investigation of Respondent under the guise of discovery in

preparation for trial.

The BOE’s decision to file charges on March 17, 2011, was based on its investigation, a

summary of which is contained in its investigation report dated March 7, 2011.39 During the

investigation, the BOE deposed Respondent, interviewed Debbie Smith, Trilby Lenfant, Jay

Lenfant, Randy Dixon, and David Glass, reviewed information on websites, and reviewed

various documents. On June 29, 2011, the BOE notified the DAL of its intent to depose

Respondent a second time.

36 The evidence acquired by the BOE after the filing of formal charges includes the May 24, 2011, deposition of Jerry Coogan; the October 4, 2013, deposition of Respondent; the February 5, 2014, affidavit of Trilby Lenfant; and the February 5, 2014, affidavit of John L. Lenfant IV. 37 Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1 Cir. 12/30/14), 168 So. 3d 714, writ denied, 2015-0208 (La. 4/17/2015), 168 So. 3d 400. 38 The BOE initially argued that La. R.S. 42:1141(C) does not require it to have a prima facie case prior to the filing of charges, and that the Ellis case did not provide for a complete prohibition on the BOE to conduct discovery following the issuance of formal charge. The BOE argued that a contrary ruling by the EAB should be stayed pending the Louisiana Supreme Court’s ruling on the BOE’s Application for Supervisory Writs filed in the Ellis case. See BOE’s Memorandum in Opposition of Motion in Limine and/or Motion to Stay Proceedings. After the filing of the BOE’s memorandum, the Louisiana Supreme Court denied the BOE’s Application for Supervisory Writs in Ellis. 39 BOE Exhibit I.

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The BOE requested the second deposition of Respondent to question Respondent

regarding newly discovered evidence. The BOE claimed that it first learned of the existence of

Debbie Smith during Respondent’s first deposition and that during its March 10, 2011, interview

of Ms. Smith, it first learned that multiple versions of the campaign flyer had been created. The

BOE claimed that it wanted to depose Respondent a second time because the newly discovered

evidence went directly to the existence of Respondent’s knowledge of the allegedly false

campaign statements.

Ellis v. Louisiana Board of Ethics

Noting the requirements of La. R.S. 1141(C)(2) and the prevailing definition of

“complete,”40 the Ellis court held that “charges may not be filed by the [BOE] until it has all the

necessary elements of its claim, meaning evidentiary support for its allegations prior to filing

formal charges against an accused.”41 The Ellis court noted that the Louisiana Code of Civil

Procedure gives the BOE the right to conduct discovery in order to prepare for trial, but stated,

“[h]owever, this Court fervently emphasizes that the [BOE] cannot combine the two distinct and

separate processes of investigation and discovery.”42 In order for an investigation to be

complete, the BOE must possess at least a prima facie case at the time of filing formal charges.43

The Ellis Court also noted that, due to the penal nature of the Ethics Code provisions, they must

be strictly construed and resolved with lenity in favor of the individual subject to penalty.44

40 La. R.S. 42:1141(C)(2) states, “[a]fter the investigation has been completed, the Board of Ethics shall determine whether a public hearing should be conducted to receive evidence and to determine whether any violation of any provision of law within its jurisdiction has occurred. If a violation has not occurred, the defendant and the complainant shall be notified within ten days of the ruling.” (emphasis added) 41 Ellis, 168 So. 3d at 724. 42 Ellis, 168 So. 3d at 725, citing La. C.C.P. art. 1424 and La. R.S. 42:1141(C). The Ellis court stated that the requirement that the investigation be complete is indicative of the importance the Code of Ethics places on an investigative process that is separate and independent from the prosecution of charges. 43 See Ellis, 168 So. 3d at 725. 44 Id. at 724.

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According to Ellis, Respondent has an “enforceable right and expectation that the [BOE]

has fully and completely conducted its investigation prior to filing charges against him.”45 The

Court explained,

We find that matters brought under the Code of Ethics are unique in nature in that they specifically require the [BOE] to show a factual basis for the allegations made prior to the filing of formal charges and the matter made public. Specifically, the [BOE] is given a one-year investigative period in which to gather the facts necessary by way of issuing subpoenas, interrogatories and having hearings under oath. See La. R.S. 42:1141C and 42:1141.4, La. Admin. Code tit. 52, pt. 1, §804. The law specifically gives the [BOE] this time and these powers so that there is a factual basis—real, tangible evidence—that it can use to show a violation of the Ethics Code before the [BOE] is allowed to put an accused’s name and reputation through the mud. (Emphasis in original) (Emphasis added).46 To support its decision to file formal charges, the BOE’s investigation had to reveal facts

and evidence necessary to support the charges against Respondent. The BOE had one year to

complete its investigation following the March 26, 2010, confidential complaint filed against

Respondent with the BOE. Nevertheless, the BOE waited until March 3, 2011, to depose

Respondent. Based on the clear pronouncements in Ellis, the BOE was required to have fully

completed its investigation of the allegations against Respondent prior to filing formal charges

against him. Further, as the BOE maintains its investigation was complete prior to the filing of

charges, any evidence obtained after the filing of charges would only be cumulative. Because

the BOE’s investigation was complete on March 17, 2011, the day it filed formal charges, it is

precluded from using any evidence it discovered after March 17, 2011, including but not limited

to the May 24, 2011, deposition of Jerry Coogan, the October 4, 2013, deposition of Respondent,

the February 5, 2014, affidavit of Trilby Lenfant, and the February 5, 2014, affidavit of John L.

Lenfant IV, to prove its charges. Respondent’s Motion in Limine is granted.

45 Ellis, 168 So. 3d at 725, citing Davies, 55 So. 3d at 924. 46 Ellis, 168 So. 3d at 726.

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Motion for Summary Judgment/Disposition

Legal Standards

A motion for summary judgment is a procedural device used to avoid a full-scale trial

when there is no genuine issue of material fact.47 A motion for summary judgment should be

granted when the pleadings, together with affidavits and other competent summary judgment

evidence, shows that there is no genuine issue of material fact and the mover is entitled to

summary judgment as a matter of law.48

A material fact is one that potentially ensures or precludes recovery, affects a litigant’s

ultimate success, or determines the outcome of a legal dispute.49 Whether a fact is material

depends on the substantive law that governs the claims on a particular case.50 For summary

judgment purposes, a genuine issue is one as to which reasonable persons could disagree; if

reasonable persons could reach only one conclusion, there is no need for trial on that issue and

summary judgment is appropriate.51 In determining whether an issue is genuine, courts cannot

consider the merits, make credibility determinations, evaluate testimony or weigh evidence.52

The burden of proof remains with the movant.53 However, if the movant will not bear

the burden of proof at trial on the matter that is before the court on the motion for summary

judgment, the movant’s burden on the motion does not require him to negate all essential

elements of the adverse party’s claim, action, or defense, but rather to point out to the court that

there is an absence of factual support for one or more elements essential to the adverse party’s

47 Granda v. State Farm Mut. Ins. Co., 2004–2012, p.4 (La. App. 1 Cir. 2/10/06), 935 So. 2d 698, 701; Robertson v.Doug Ashy Bldg. Materials, Inc., 2010–1547, p.16 (La. App. 1 Cir. 10/4/11), 77 So. 3d 323, 332.48 La. C.C.P. art. 966(B); Valenti v. Petmecky, 95-718 (La. App. 5 Cir. 1/17/96), 669 So. 2d 1.49 Hines v. Garrett, 2004-0806, p.1 (La. 6/25/04), 876 So. 2d 764, 765.50 Bieber v. State Farm Mut. Auto Ins. Co., 99-0527, p.5 (La. App. 1 Cir. 3/31/00), 764 So. 2d 988, 991, writ denied,2000-1253 (La. 6/16/00), 765 So. 2d 337.51 Hines, 876 So. 2d at 765-766.52 Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p.27 (La. 7/5/94), 639 So. 2d 730, 751.53 La. C.C.P. art. 966(C)(2).

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claim, action, or defense.54 Thereafter, if the adverse party fails to produce factual support

sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there

is no genuine issue of material fact.55

Arguments of the Parties

The BOE charges that Respondent violated the spirit and intent of La. R.S. 42:1130.4

when, while he was a candidate for public office, he distributed or caused to be distributed, with

the intent to mislead voters, a campaign flyer and an email which he knew contained false

statements regarding his opponent, Trilby Lenfant. The BOE claims that it had a prima facie

case prior to filing formal charges against Respondent. The BOE argued that the word “knows”

in the statute creates a due diligence/prudent man standard that required Respondent to make a

good faith inquiry to ascertain the truth of the campaign statements.56 It claimed that Respondent

failed to perform any type of due diligence to determine whether his campaign statements were

true or accurate.57 The BOE argues that Respondent’s intent to mislead voters is established by

the mere fact that he distributed a campaign flyer three days before the election that allegedly

contained false and misleading statements about his opponent.

Respondent argues that the BOE filed formal charges prior to completing its

investigation to ascertain the existence of factual grounds for the charges, in contravention of the

First Circuit’s decision in Ellis v. Louisiana Bd. of Ethics.58 Respondent argues that two

essential elements of the BOE’s charges are his knowledge that the campaign statements were

54 Id.55 Id.56 See BOE’s Memorandum in Opposition of Motion for Summary Judgment, pp. 19-21; see also BOE’sMemorandum in Opposition of Motion for Summary Judgment, p.3 (The BOE stated, “During both Mr. Villere'ssworn statement and deposition, it became clear that Mr. Villere did not perform any type of due diligence todetermine whether the alleged facts contained in his campaign flyer were accurate.”).57 Id. at p. 22.58 Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1 Cir. 12/30/14), 168 So. 3d 714, writ denied, 2015-0208(La. 4/17/2015), 168 So. 3d 400.

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false and his intent to mislead voters. He claims that summary judgment must be granted

because the BOE lacks factual support for both of these essential elements and thus did not have

a prima facie case of all the legal elements of La. R.S. 42:1130.4 when it filed charges against

him. Respondent argues that the statute requires that the BOE prove that the campaign

statements were made with actual malice.

Statute Analysis

In order for the BOE to prove a violation of La. R.S. 42:1130.4, it must prove all of the

following legal elements by clear and convincing evidence:59

1. The alleged violator was a candidate in an election;2. The candidate distributed or caused to be distributed any oral, visual, or written

material;3. The distributed material contained any false statement about another candidate;4. The candidate knew that the statement was false; and5. The candidate had the intent to mislead the voters through the use of what he knew

was a false statement.

The parties agree that Respondent met the first two elements. Although the parties

disagree about element #3, an analysis of that element is unnecessary as we find that the BOE

cannot prove elements #4 or #5.

The starting point in the interpretation of any statute is the language of the statute itself.60

When a law is clear and unambiguous and its application does not lead to absurd consequences,

the law shall be applied as written and no further interpretation may be made in search of the

intent of the legislature.61 When the wording of a Section is clear and free of ambiguity, the

letter of it shall not be disregarded under the pretext of pursuing its spirit.62 Courts should

59 See La.R.S.42:1141.5(C).60 Red Stick Studio Dev., L.L.C. v. State ex rel. Dept. of Econ. Dev., 2010-0193, p.10 (La. 1/19/11), 56 So. 3d 181,187.61 Id. at 187-88; La. Civ. Code art. 9.62 La. R.S. 1:4.

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consider the intent of the legislature only when the meaning of a law cannot be ascertained by

the application of the provisions of the Civil Code and Revised Statutes.63 The meaning and

intent of a law is determined by considering the law in its entirety and all other laws on the same

subject matter, and by placing a construction on the law that is consistent with the express terms

of the law and with the obvious intent of the legislature in enacting the law.64

La. R.S. 42:1130.4 prohibited Respondent from distributing material containing a

statement which he knows makes a false statement about another candidate. As the statutory

language is unambiguous, there is no need to search for the spirit or the intent of the legislature,

as urged by the BOE. No reported cases have addressed the “false statements” prohibition

contained in La. R.S. 42:1130.4, but the statute’s knowledge standard can be determined by a

review of well-settled case law addressing protected First Amendment political speech.

Political Speech

New York Times v. Sullivan precludes the criminal or civil65 punishment of false

statements, unless made with actual malice, i.e., knowledge of their falsity or in reckless

disregard of whether they are true or false.66 Proof of actual malice depends upon the actual

state of mind of the person responsible for publications regarding a public figure.67 A reckless

disregard for the truth requires more than a departure from reasonably prudent conduct; there

must be a high degree of awareness of probable falsity or the individual must have entertained

serious doubts as to the truth of his publication.68 Under this standard, even proof of gross

63 La. R.S. 24:177(A); see also La. Civ. Code arts. 9-13 and La. R.S. 1:1 et seq.64 Kinchen v. Livingston Parish Council, 2007-0478, p.5 (La. 10/16/07), 967 So. 2d 1137, 1140.65 New York Times v. Sullivan, 376 U.S. 254, 277 (1964), citing Farmers Educational and Cooperative Union ofAmerica v. WDAY, 360 U.S. 525, 535, 79 (1959) (“What a State may not constitutionally bring about by means of acriminal statute is likewise beyond the reach of its civil law of libel.”). See also Kidder v. Anderson, 354 So. 2d1306 (La. 1978) (noting the burden of clear and convincing proof).66 Sullivan, 376 U.S. at 279.67 Herbert v. Lando, 441 U.S. 153, 160 (1979).68 Landry v. Roberson Adver. Serv., Inc., 95-0095, pp. 6-7 (La. App. 4 Cir. 8/23/95), 660 So. 2d 194, 197-198,

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negligence in the publication of a false statement is insufficient to prove that the person acted

with reckless disregard for the truth.69

Criticism of government officials does not lose its constitutional protection merely

because it is effective criticism that diminishes their official reputations.70 Individuals cannot be

punished for false statements against public officials, even if made with ill will, unless they are

also made with knowledge of their falsity or in reckless disregard of whether they are true or

false.71 Individuals cannot be punished for true statements, even if made with actual malice.72

Louisiana courts have long recognized limitations on legal actions in matters involving

constitutionally protected speech.73 In a Fourth Circuit case involving constructive contempt for

the criticism of a judge, the Court stated that it was “compelled to analogize [the] case to

Garrison v. Louisiana”74 and held,

There is no doubt the state has an interest in preserving the integrity and dignityof the judicial system, and respect for its authority. However, in the factualcontext of this case, we are of the opinion that the state interest does not overridethe right to free speech. The utterances made by appellant, although derogatoryon their face, do not present a clear and present danger of the obstruction ofjustice.75

citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667. See also Garrison v. State ofLouisiana, 379 U.S. 64, 74 (1964); Kennedy v. Sheriff of E. Baton Rouge, 2005-1418, pp. 28-29 (La. 7/10/06), 935So. 2d 669, 688.69 Davis v. Borskey, 94-2399, p.10 (La. 9/5/95), 660 So. 2d 17, 23, citing Masson v. New Yorker Magazine, Inc.,501 U.S. 496, 510 (1991).70 Sullivan, 376 U.S. at 273.71 Garrison, 379 U.S. at 78; see also Schaefer v. Lynch, 406 So. 2d 185 (La. 1981).72 Id.73 See, e.g., Citizens Against Government Takeover v. Giarrusso, 490 So. 2d 510 (La. App. 4th Cir. 1986); Sassonev. Elder, 626 So. 2d 345 (La. 1993) (in a defamation case arising prior to the amendments to La. C.C.P. art. 966 thatoverruled the jurisprudential presumption against granting summary judgment, the Louisiana Supreme Courtburdened the plaintiff with a high summary judgment standard due to the possible chilling effect such actions couldhave on freedom of the press); and Guste v. Connick, 515 So. 2d 436 (La. 1987) (In a case involving allegations ofan incumbent Attorney General that his election opponent’s television campaign advertisement contained statementsabout the incumbent’s official conduct that were not wholly true and/or presented in deceptive manner, theLouisiana Supreme Court held that such allegations were insufficient to sustain the incumbent’s burden of showingjustification for enjoining advertisement, and thus, the preliminary injunction violated opponent's rights of freedomof speech under the First Amendment).74 Garrision v. State of Louisiana, 379 U.S. 64 (1964).75 Giarrusso, 490 So. 2d at 512; see also Bridges v. State of California, 314 U.S. 252 (1941).

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Interpreting La. R.S. 42:1130.4 and its knowledge standard in light of this jurisprudence,

the charges require the BOE to prove that Respondent acted with actual malice, i.e., with

knowledge of the falsity of the campaign statements or reckless disregard of whether they were

true.

There is no evidence that Respondent acted with reckless disregard for the truth. The

BOE’s investigation did not yield evidence that Respondent was highly aware that the campaign

statements were probably false, or that he “in fact entertained serious doubts as to the truth of the

publication.”76 During the BOE’s first deposition on March 3, 2011, Respondent testified that he

believed that all of the statements in the flyer were true at the time of distribution, and that he

continued to believe in their truthfulness on March 3, 2011. The BOE claims that through

documents and testimony at the public hearing, it will prove that Respondent was highly

aware that the statements made were probably false.77 However, the BOE’s claim is not

supported by the evidence it obtained prior to filing charges.

Contrary to the repeated assertions of the BOE, there is no evidence that Respondent

failed to conduct any investigation into the accuracy of the campaign statements. As the BOE

was aware, Respondent retained a paid political consultant, Debbie Smith, to assist with the

creation of the campaign flyer. During its investigation, the BOE interviewed Ms. Smith.

Although Ms. Smith told the investigator that the campaign was ultimately responsible for the

accuracy of the information in the flyer, she stated multiple times that she wanted her work

product to be accurate. She stated that she checked publicly available documents, received

data from websites, obtained information from another member of the Mandeville City

Council, Jerry Coogan, created multiple versions of the flyer, was personally very familiar

76 Davis, 660 So. 2d at 23.77 BOE’s Memorandum in Opposition of Motion for Summary Judgment, p. 22.

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with The Sanctuary and The Preserve subdivisions, and defended the information in the flyer.

During his deposition, Respondent also testified that he relied on his own personal knowledge

for some of the statements in the campaign flyer and frequently met with Jerry Coogan to

discuss the election and Respondent’s campaign. He also produced several documents that he

claimed to have relied on when creating the campaign flyer.78 Although aware of each of

these facts, the BOE argued:

During both Mr. Villere’s sworn statement and deposition, it became clear thatMr. Villere did not perform any type of due diligence to determine whether thealleged facts contained in his campaign flyer were accurate. Instead, he reliedon information supplied by other persons, some of which were known not to besupporters of Trilby Lenfant.79 (Emphasis in original)

The BOE’s allegations are not supported by the record; allegations without substance do

not support and cannot defeat a motion for summary judgment.80 Even if the BOE could prove

that Respondent failed to investigate the accuracy of his campaign statements, a failure to

investigate alone does not indicate that the statements were made with a reckless disregard for

the truth.81 The BOE stresses that Respondent obtained information from individuals he knew

did not support Trilby Lenfant and offers this as evidence of Respondent’s reckless disregard for

the truth. This is conjecture, not evidence. Furthermore, the bias of persons providing the

information used in a publication about a public official is not persuasive in determining malice

if the informant was in a position to know the information and there was no clear and convincing

78 See Footnote No. 30 in the Statement of Fact section, supra, for a listing of these documents.79 BOE’s Memorandum in Opposition of Motion for Summary Judgment, p. 3.80 JCM Const. Co., Inc. v. Orleans Parish School Bd., 2002-0824, pp.42-3 (La. App. 4 Cir. 11/17/03), 860 So. 2d610, 635; see also Jones v. American Bank and Trust Co., 387 So. 2d 1360, 1363 (La. App. 1st Cir. 1980) (“Merelyformal allegations without substance will not preclude summary judgment.”).81 Hakim v. O'Donnell, 49,139 and 49,140, p. 15 (La. App. 2 Cir. 6/25/14), 144 So. 3d 1179, 1189, writ denied,2014-1501 (La. 11/7/14), 152 So. 3d 175, cert. denied, 135 S.Ct. 1714 (2015) (“[A] failure to investigate does notpresent a jury question on whether a statement was published with reckless disregard for the truth.” (citing Romerov. Thomson Newspapers (Wisconsin), Inc., 1994-1105 (La. 1/17/95), 648 So. 2d 866, cert. denied, 515 U.S. 1131(1995)));Kennedy v. Sheriff of East Baton Rouge, supra.

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evidence that the publisher of the information had any personal knowledge unequivocally

indicating the unreliability of the informant.82 The BOE produced no evidence to show that

Respondent’s informants were unreliable or that he had personal knowledge of their alleged

unreliability.

The information obtained from the BOE’s investigation falls short of proof of actual

malice on the part of Respondent. Actual malice depends upon subjective knowledge, i.e., the

actual state of mind of the person responsible for publications regarding a public figure.83 The

only evidence addressing Respondent’s state of mind is his own sworn statement quoted

verbatim:

“Ms. Lenfant didn’t do you know, has really never done anything to me. I believethat this information was is truthful, I believe that it’s a matter of showing somedifferences in what Ms. Lenfant says and what she does and I felt like it wasimportant for the community to have that information in order to come to avote.”84

In order to prevail at a hearing, the BOE must prove that Respondent published

statements he knew were false, or that he published them with a reckless disregard for the truth.

It would not be sufficient for the BOE to show that reasonably prudent conduct would have

necessitated further investigation by Respondent. Even if the BOE could prove by clear and

convincing evidence that one or more of the campaign statements were factually false, it could

not rely on simply proving that the publication of the false statements was grossly negligent.85

Instead, the BOE would have to show by clear and convincing evidence that Respondent

possessed a high degree of awareness of the probable falsity of the campaign statements, or that

82 See Kidder v. Anderson, 354 So. 2d 1306, 1308-09 (La. 1978) (The Kidder court also held, in a defamation actioninvolving a newspaper reporter and his employer publisher, that the credibility of defendant publisher’s informantswas to be judged, not on the basis of an evaluation of sworn testimony at trial after full opportunity to rebutaccusations, but rather on the basis of information available to the newspaper reporter at the time of publication).83 Herbert v. Lando, 441 U.S. 153, 160 (1979).84 BOE Exhibit B, p. 50 (March 3, 2011, deposition of Respondent).85 Davis v. Borskey, 94-2399, p.10 (La. 9/5/95), 660 So. 2d 17, 23, citing Masson v. New Yorker Magazine,Inc., 501 U.S. 496, 510 (1991).

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Respondent entertained serious doubts as to the truth of his publication.86 The BOE has not and

cannot meet this burden relying solely on the evidence it possessed when it filed charges.

In order to prevail at the hearing, the BOE must also prove that Respondent intended to

mislead voters. The BOE argues that Respondent’s intent to mislead voters is established by the

mere fact that he distributed a campaign flyer three days before the election that [it argues]

contained false and misleading statements about his opponent. This is argument, not evidence.

The only “real, tangible evidence” in the record regarding intent is found in Respondent’s

deposition testimony indicating that the intent of his campaign statements was to persuade voters

by pointing out what he perceived to be the disingenuous actions of Ms. Lenfant while she

served on the Mandeville City Council. Again, the BOE cannot prove Respondent intended to

mislead voters relying solely on the evidence it possessed when it filed charges.

Lacking any evidence tending to prove Respondent’s subjective state of mind, the BOE

will be unable to prove that Respondent published the campaign statements with reckless

disregard for the truth or with intent to mislead voters. Thus, the BOE lacks evidence of two key

elements of a violation of La. R.S. 42:1130.4.

Respondent’s burden on the Motion for Summary Disposition does not require him to

negate all essential elements of the BOE’s charges, but rather only to show an absence of factual

support for one or more elements essential to proving a violation of La. R.S. 42:1130.4.87

Because the BOE has failed to produce factual support sufficient to establish that it will be able

to satisfy its evidentiary burden of proof (clear and convincing evidence) at the hearing, there is

86 Landry v. Roberson Adver. Serv., Inc., 95-0095, pp. 6-7 (La. App. 4 Cir. 8/23/95), 660 So. 2d 194, 197-98,citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667. See also Garrison v. State ofLouisiana, 379 U.S. 64, 74 (1964); Kennedy v. Sheriff of E. Baton Rouge, 2005-1418, pp.28-29 (La. 7/10/06), 935So. 2d 669, 688.87 Craig M. v. Steve Owens Const., Inc., 2012-1033, p.4 (La. App. 1 Cir. 2/15/13) 113 So. 3d 235, 237.

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no genuine issue of material fact, and Respondent is entitled to judgment as a matter of law.88

Summary judgment is appropriate. Respondent’s Motion for Summary Disposition is

granted.

ORDER

IT IS ORDERED that Donald Villere’s Motion in Limine is granted, and the evidence

discovered after the Louisiana Board of Ethics filed charges against him on March 17, 2011,

including but not limited to the May 24, 2011, deposition of Jerry Coogan, the October 4, 2013,

deposition of Respondent, the February 5, 2014, affidavit of Trilby Lenfant, and the February 5,

2014, affidavit of John L. Lenfant IV, is excluded.

IT IS ORDERED that Donald Villere’s Motion for Summary Disposition is granted, and

the charges issued by the Board of Ethics dated March 11, 2011, charging Donald Villere with

violating La. R.S. 42:1130.4 are dismissed.

Rendered and signed September 15, 2015, in Baton Rouge, Louisiana.

________________________________Adaora ChukudebeluPresiding Administrative Law Judge

________________________________A. Brock AveryAdministrative Law Judge

________________________________Alvin LandryAdministrative Law Judge

88 Id.

A

S

A

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REVIEW RIGHTS Please be advised that you may be entitled to a rehearing or reconsideration of this decision within 10 days of the date of this transmission, if you can establish that one of the legal grounds listed in La. R.S. 49:959 is applicable to your case. Requests for a rehearing or reconsideration must be received by the Ethics Adjudicatory Board within 10 days of the date of this transmission. You may fax your request to (225)219-9983 or email it to EABprocessing@adminlaw.state.la.us.

You may also be entitled to judicial review of this decision within certain time limits. To determine your rights to review, you should act promptly and seek legal advice.

NOTICE OF TRANSMISSION OF DECISION OR ORDER

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this decision/order to all parties of this matter.

Clerk of Court Division of Administrative Law

Friday, September 18, 2015