Louisiana District Attorney’s opinion on Councilmen’s alleged malfeasance

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In a letter responding to a request from Mayor Terry Gardner for his opinion on Louisiana Open Meeting Law, Louisiana Attorney General Jeff Landry described the potential legal ramifications for some of the actions taken by Minden City Councilmen.

While the initial conversation between Gardner and the Attorney General’s Office dates back to early Jan., some of Landry’s opinions are relevant to the current issue facing the Council, that being the recent repeated absences of Councilman Terika Williams-Walker of Dist. B and Vincen Bradford of Dist. C .

According to the letter, the main questions Gardner had for the Attorney General’s Office were,” Are discussions and pre-planning between majority of the membership of a public body that take place outside of a public meeting, regarding business over which they have control, a violation of open meetings law?

What actions would constitute a walking or rolling quorum?

If a quorum is established at the beginning of a meeting, and a majority of the members subsequently leave, can the remaining members continue with the meeting? 

What relief is available to prevent council members from intentionally walking out of meetings to avoid voting on issues or so that a quorum is not present to conduct business?”

The most relevant question to the current situation is the last one. While the original question was geared more towards the walkout that happened back in November, when answering the question, Landry does go into detail about malfeasance, which some could argue the current councilmen are guilty of due to them not voting on City business.

Landry cited both the Louisiana Law and the Louisiana Constitution to show the definition of malfeasance and the legal consequences.

Louisiana Revised Statute 14:134 defines malfeasance in office as follows: (A) Malfeasance in office is committed when any public officer or public 

employee shall: (1) Intentionally refuse or fail to perform any duty lawfully required of 

him, as such officer or employee; or (B) Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty. 

(C)(1) Whoever commits the crime of malfeasance in office shall be 

imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars, or both.

Louisiana Constitution Article 10, 24(A) provides, “a state or district official, whether elected or appointed, shall be liable to impeachment for commission or conviction, during his term of office of a felony or for malfeasance or gross misconduct while in such office.”

Landry also cited a Louisiana Supreme Court Case, during which, it was determined that, “there must be a statute or provision of law which delineates an affirmative duty upon the officer or employee… The duty must be expressly imposed by law upon the officer or employee because he is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges.”

The letter implies that the “statue or provision” that pertains to the City Councilmen is Minden Code of Ordinances 2-34, which states, “elach alderman present shall be required to vote on all questions unless excused by the council, but shall not vote for himself on a question involving his individual interest unless he prepares and files a statement as permitted by La. R.S. 42:1120.”

The letter also provided a previously given opinion on a similar matter regarding a School Board member who failed to attend meetings.

“In La. Atty. Gen. Op. 02-63, our office concluded that while no statute was found that penalized a school board member for failure to attend meetings, ‘it is our opinion that the continued failure or refusal to attend meetings of the School Board, without any excuse other than that of purely business reasons, would doubtless constitute malfeasance in office, and the courts would doubtless construe such malfeasance as misconduct in office,” the letter read. 

In regards to who has the legal authority to determine whether or not the absences count as malfeasance, the letter cited an Attorney general’s opinion from 1960 which states, “With regards to the charge of malfeasance in office, the decision to bring charges rests with the District Attorney. The District Attorney has broad discretion in both the institution and handling of criminal prosecutions.

The letter went on to clarify that whether or not the failure to attend meetings amounts to malfeasance would be at the discretion of the District Attorney, who, in Webster Parish’s case, is Schuyler Marvin of the 26th Judicial District.

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