author: ELLIS, Judge: SAVOIE, Judge,

text:
    COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES v. IT CORPORATION.
    No. 82 CW 0257.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      R. Gray Sexton, Com’n On Ethics For Public Employees, Baton Rouge, for respondent.

      Charles S. McCowan, Jr., R. Gordon Kean, Jr., Ben R. Miller, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, for applicant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This matter arises from an affidavit of complaint brought by a private citizen against IT Corporation before the Commission on Ethics for Public Employees, alleging that IT Corporation had violated certain provisions of the Code of Governmental Ethics. IT Corporation had been awarded a contract for $375,598.00 by the Louisiana Department of Natural Resources to conduct a feasibility study for a regional hazardous waste disposal facility. IT Corporation, a private California corporation, subcontracted with Research Associates, Inc., a private Louisiana corporation, to do certain work in conjunction with the contract awarded to IT Corporation. Ultimately, IT Corporation submitted its study in compliance with its contract, recommending a particular site for a waste disposal facility. IT Corporation then acquired options to buy the recommended site and has since exercised these options.

The complaint questioned the propriety of IT Corporation’s subcontract with Research Associates and IT Corporation’s acquisition of one of the options mentioned above. After considering the complaint, the Commission on Ethics for Public Employees resolved to conduct a private investigation to elicit evidence in order to determine whether to conduct a public hearing, in accordance with its authority under the Code of Governmental Ethics, La.R.S. 42:1101 et seq.

IT Corporation then filed exceptions with the Commission in which it argued the Commission was without authority to conduct any investigations or hearings involving any activity of IT Corporation. The exceptions were based upon the following allegations: 1) that the Commission had no subject matter jurisdiction in that the affidavit of complaint did not constitute a “complaint” as required by Section 1141(A) of the Code; 2) that the Commission had no jurisdiction over either IT Corporation or any of its activities because IT Corporation was not a “state employee” within the meaning of the Code; and 3) that any proceeding by the Commission would deprive IT Corporation of due process because of inadequacies regarding the Commission’s rules of procedure.

After hearing argument by counsel for IT Corporation and counsel for the Commission, the Commission voted to overrule all of IT Corporation’s objections. The Commission then proceeded with its private investigation. As a result of this investigation, the Commission voted to conduct a public hearing for the purpose of exploring two formal charges it brought against IT Corporation, both of which were related to the allegations described in the original affidavit of complaint.

In its notification to counsel for IT Corporation of the results of the private investigation, the Commission stated that, depending upon the findings of the public hearing, it might, in accordance with the Code, cancel or rescind any or all of the following four “contracts”: the contract between IT Corporation and the Department of Natural Resources to conduct the feasibility study, a “Hazardous Waste Disposal Permit”, an “Air Emission Permit”, and a “Water Discharge Permit”, all three of which had been issued to IT Corporation by the Environmental Control Commission relative to the hazardous waste facility IT Corporation was planning to construct on the site which it had recommended to the Department of Natural Resources in its feasibility study.

In response to the charges, IT Corporation filed Exceptions and a Motion for Summary Dismissal of Charges. IT Corporation reiterated all of its previously filed exceptions as well as alleging that the activities charged did not constitute violations of the Code, that the Commission was without jurisdiction to cancel or rescind any of the three permits issued by the Environmental Control Commission, that the charges should be dismissed for being vague and indefinite, and that there was no statutory basis upon which to base the charges.

After the Commission received evidence and heard argument in support of these exceptions and motion for dismissal, it unanimously resolved to overrule all of the exceptions as well as the motion for dismissal. From this denial, IT Corporation filed application for supervisory writs. On April 14,1982, this Court granted a writ of certiorari in this matter. Additionally, this Court ordered that all proceedings against IT Corporation be stayed and suspended until further orders of the Court.

IT Corporation makes five assignments of error. They are as follows:

1. There was no applicable law upon which to base an investigation or charges.
2. IT Corporation is not a state employee subject to the jurisdiction of the Ethics Commission.
3. Even if the term “state employee” includes corporations, under the existing facts, IT Corporation is not a “state employee” subject to commission jurisdiction.
4. Procedural deficiencies in these proceedings require dismissal; or, in the alternative, exclusion of all evidence received or obtained as a result of “private” hearings or investigation.
5. The Commission has no authority or jurisdiction to impose any penalty or sanction against IT Corporation, including but not limited to cancelling or rescinding its contract with the Department of Natural Resources or any permit granted by the Environmental Control Commission.
ASSIGNMENT OF ERROR NO. 1 THERE WAS NO APPLICABLE LAW UPON WHICH TO BASE AN INVESTIGATION OR CHARGES.

IT Corporation’s first assignment of error is that the Legislature, in amending and re-enacting the Code of Governmental Ethics, effective April 1,1980, inadvertently repealed the Code as it had existed prior to April 1, 1980, and in so doing, created “immunity” for those who had violated the provisions of the old Code. The Legislature, however, provided for an uninterrupted and unimpeded transition from the old Code to the new Code. Section 2 A of Act 443 of 1979 reads as follows:

“Section 2. Transfer of functions
“A. Effective April 1, 1980, all rights, powers, responsibilities, and duties of the Louisiana Commission on Governmental Ethics shall be transferred to the Commission on Ethics for Public Employees. All resources available on such date to the Louisiana Commission on Governmental Ethics shall be transferred to and henceforth shall be vested in and exercised by the Commission on Ethics for Public Employees pursuant to the provisions of this Chapter.”

IT’s first assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2 IT CORPORATION IS NOT A “STATE EMPLOYEE” SUBJECT TO THE JURISDICTION OF THE ETHICS COMMISSION.

At the outset, it should be noted that the violations alleged against IT Corporation would have occurred in 1979, prior to the amending and reenactment of the Code of Governmental Ethics; therefore, the relevant substantive provisions of the Code would be those which were in effect at that time, and prior to April 1, 1980, the effective date of the new Code.

As a result of its private investigation, the Commission on Ethics for Public Employees brought two charges against IT Corporation. The first charge is that IT Corporation violated Section 1112(A) of the old Code in that:

“IT Corporation, as a ‘state employee’ within the meaning of the above cited prohibition, was proscribed by the cited section of the Code from ‘participating’ in a ‘transaction’ involving the state in which IT Corporation had a substantial economic interest.
“IT Corporation by negotiating to acquire an option to purchase the tract of land designated in the study as ‘Area F achieved a substantial economic interest in the transactions more particularly set forth in subparagraph 2 above.”

Section 1112(A) read as follows:

“A. Economic Interests of a State Employee. — No state employee shall participate in a transaction involving the state in which he has a personal substantial economic interest, as distinguished from a general class or general group of persons, of which he may reasonably be expected to know.”

The second charge is that IT Corporation, as a “state employee”, or, in the alternative, as an “other person”, violated Section 1118 by paying, transferring, or delivering to Ned Cole and Research Associates, Inc. a thing of economic value in the form of payments totaling $53,836.00, which Research Associates, Inc. and Ned Cole were prohibited from receiving by Section 1113.

The statutes pertinent to this second charge read, in relevant part, as follows:

“Section 1118. Illegal payments
“A. Payments as Compensation. — No state employee or other person shall give, pay, loan, transfer or deliver or offer to give, pay, loan, transfer or deliver, directly or indirectly, to any other state employee or person any thing of economic value which he would be prohibited from receiving by any other provisions of this Part.”
“Section 1113. PUBLIC OFFICERS— EMPLOYEES
“B. Compensation for Service to Others. —No state employee shall receive any thing of economic value for or in consideration of personal services rendered, or to be rendered, to or for any person during the term of his state employment unless such services meet each of the following qualifications:
“(4) The services are neither performed for nor compensated by any person from whom such employee would be prohibited by R.S. 42:1114 from receiving a gift; unless the services and compensation are fully disclosed in writing to the head of the employee’s agency.”
“Section 1114. Gifts
“General rule for all employees. — No state employee shall receive, accept, take, seek or solicit, directly or indirectly, any thing of economic value as a gift, gratuity or favor from any person or from any officer, director, agent or employee of such person, if such person:
“(1) Has or is seeking to obtain contractual or other business or financial relationships with such employee’s agency; or
“(2) Conducts operations or activities which are regulated by such employee’s agency; or
“(3) Has interests which may be substantially affected by such employee’s performance or non-performance of official duty.
“And if such state employee knew or reasonably should have known of the existence of any of the conditions covered above.”

Charge number one by the Ethics Commission is clearly dependent on IT Corporation being a “state employee” within the meaning of the Code of Governmental Ethics. The same is true of the primary charge in charge number two. However, the alternative charge in charge number two is that IT Corporation, as an “other person”, violated the Code by subcontracting part of its work to Ned Cole and Research Associates, Inc. and paying them therefor. This alternative charge is dependent upon the premise that Research Associates, Inc. was a “state employee” within the meaning of the old Code. The naming of Ned Cole as an individual in this charge is of no consequence since the record clearly reflects that Ned Cole at all times acted only in his capacity as president of Research Associates, Inc. and that the contractual relationships raised by the alternate charge were between the State and Research Associates, Inc., and not with Ned Cole, individually.

The determining factor as to whether IT Corporation can be subject to the jurisdiction of the Ethics Commission, therefore, is whether or not a “state employee”, within the meaning of the old Code, could include a private corporation. Section 1111(G) of the Code defined a state employee as follows:

“G. ‘State employee’ means any one, whether compensated or not, who is
“(1) An administrative officer or official of the state who is not filling an elective office; or
“(2) Appointed by the Governor (whether or not approval is required by the Senate or any other body, agency or person) or is appointed by any elected officer or official of the state or is appointed by any other state employee as defined in this Sub-section, when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the state or one of its agencies, either as a member of a board, commission or other agency, or as an employee of the state or of one of its agencies; or
“(3) Engaged in the performance of a state function under authority of the laws of this state; or
“(4) Under the supervision or authority of an elected state official or under the supervision or authority of another state employee as defined in this Sub-section.”

Obviously, it is necessary to determine the meaning of the term “any one” in order to determine if a state employee may include a private corporation.

IT Corporation argues that, had the Legislature intended state employees to include corporations, then it could and would have used the term “person”, which is itself defined in the old Code as including corporations, instead of “any one” in defining “state employee”.

“One” is defined in Webster’s Third New International Dictionary as “a certain indefinitely indicated person or thing usu. of a kind mentioned or under consideration.”

This broad definition leads us to conclude that “state employee”, as defined in

Section 1111(G), above, includes private corporations as well as individuals. Therefore, IT Corporation, as a private corporation, can be subject to the jurisdiction of the Commission on Ethics for Public Employees.

ASSIGNMENT OF ERROR NO. 3 EVEN IF THE TERM “STATE EMPLOYEE” INCLUDES CORPORATIONS, UNDER THE EXISTING FACTS, IT CORPORATION IS NOT A “STATE EMPLOYEE” SUBJECT TO COMMISSION JURISDICTION.

As noted above, the Code of Governmental Ethics defined “state employee”, in Section 1111(G)(3), as follows:

“G. ‘State employee’ means any one, whether compensated or not, who is
“(3) Engaged in the performance of a state function under authority of the laws of this state; ...”

After a careful and thorough reading of the record and submitted briefs, we conclude that IT Corporation’s execution of its contract with the Department of Natural Resources constituted the “performance of a state function under authority of the laws of this state”, thereby subjecting IT Corporation to the jurisdiction of the Commission on Ethics for Public Employees.

Although the old Code did not define “state function”, we think it clear that the conducting of this feasibility study for a hazardous waste disposal facility falls well within the function of the State to protect and preserve the public health and welfare. As stated by the Legislature in Act 334 of 1978, in declaring its purpose in enacting the hazardous waste control statutes of the Act:

“B. In order to diminish the risks to which the citizens and environment of this state are being exposed it is in the public interest, and within the police power of the state, to establish a framework for the regulation, monitoring, and control of the generators, transportation, treatment, storage and disposal of such hazardous wastes, and it is the declared purpose of this Part to authorize the development, implementation, and enforcement of a comprehensive state hazardous waste control program.”

IT Corporation also argues under this assignment of error that, as regards Charge I, it had no “personal substantial economic interest” in its contract with the Department of Natural Resources. All contacts which IT Corporation made with the owners of the site which it ultimately recommended and purchased, IT Corporation argues, were necessary to fulfill the terms of the contract by determining the availability of sites for the purposes of the feasibility study. The Ethics Commission, on the other hand, argues that IT Corporation’s contacts with the landowners far surpassed those necessary to fulfill its contract and were more in the nature of personal negotiations, thereby conferring IT Corporation with a “personal substantial economic interest” in violation of Section 1112.

We note, however, that because IT Corporation entered into an option contract with one of the landowners which became effective prior to its termination of state employment, it is not necessary to look into the nature of these contacts and alleged negotiations. Section 1111(G) read, in pertinent part, as follows:

“The termination of any particular term of employment of a state employee shall take effect on the day he resigns, retires, completes the particular work or service for which he was employed and has such work or service accepted, is dismissed, or the termination of his status is otherwise clearly evidenced.”

Paragraph 7 of IT Corporation’s contract with the Department of Natural Resources reads as follows:

“Payment to the Consultant for services rendered shall be made as a lump sum upon delivery of the final report as specified in Appendix A and approval by the Department. Payment shall be made by the Department within approximately thirty (SO) days after submission of an original and two copies of an invoice for the total amount.”

IT Corporation timely submitted its feasibility study by September 20, 1979. On September 25, 1979, IT Corporation’s real estate option around which this dispute centers became effective. Because, however, IT Corporation was not paid by the State for its services until October 9, 1979, it was still a state employee on the date the real estate option became effective, and did, therefore, acquire a “personal substantial economic interest” in violation of Section 1112.

IT Corporation also argues that, as regards Charge II, Research Associates, Inc. is not a “state employee”. The record, however, shows that Research Associates was then under contract with the Department of Natural Resources to manage several significant aspects of the Department’s hazardous waste program. The obligations undertaken by Research Associates in these contracts leave no doubt that it was performing a state function, and, was, therefore, a “state employee” within the meaning of the Code.

ASSIGNMENT OF ERROR NO. 4 PROCEDURAL DEFICIENCIES IN THESE PROCEEDINGS REQUIRE DISMISSAL; OR, IN THE ALTERNATIVE, EXCLUSION OF ALL EVIDENCE RECEIVED OR OBTAINED AS A RESULT OF “PRIVATE” HEARINGS OR INVESTIGATION.

Procedural rules for the Commission on Governmental Ethics were adopted under the old law. But the Commission on Ethics for Public Employees apparently does not recognize these procedural rules, although they do not seem to have ever been formally revoked. The Legislature, however, in La.R.S. 42:1141, provided procedures affording the investigated party the full panoply of due process rights. It is not argued by IT Corporation that such due process rights were not protected under the old law, but rather that the failure of the Commission on Ethics for Public Employees to adopt the old procedural rules led to a denial of due process rights under the new law. Since La.R.S. 42:1141 provides ample protection of due process rights, this argument is without merit.

ASSIGNMENT OF ERROR NO. 5 THE COMMISSION HAS NO AUTHORITY OR JURISDICTION TO IMPOSE ANY PENALTY OR SANCTION AGAINST IT CORPORATION, INCLUDING BUT NOT LIMITED TO CANCELLING OR RESCINDING THE CONTRACT BETWEEN IT AND THE DEPARTMENT OF NATURAL RESOURCES OR ANY PERMIT GRANTED BY THE ENVIRONMENTAL CONTROL COMISSION.

IT Corporation argues that the Department of Natural Resources has been given exclusive jurisdiction over all contracts and permits issued by the Department. Therefore, it contends, it is beyond the jurisdiction of the Ethics Commission to cancel or rescind either the contract between IT Corporation and the Department of Natural Resources or any of the three permits issued to IT Corporation by the Environmental Control Commission, which is a part of the Department of Natural Resources.

In support of this argument, IT Corporation cites La.R.S. 30:1134(A) as follows:

“A. Except as may be otherwise specifically provided in this Part, the Department (of Natural Resources) shall have exclusive jurisdiction for the development, implementation, and enforcement of a comprehensive state hazardous waste control program consistent with the provisions of this Part and applicable federal laws and regulations.”

IT Corporation argues further that in State v. Rollins Environmental Service of Louisiana, Inc., 398 So.2d 1122 (La.1981), the Louisiana Supreme Court clearly and unequivocally ruled that, “Act 334 of 1978 gave the State Department of Natural Resources exclusive jurisdiction for the development, implementation, and enforcement of a comprehensive state hazardous waste control program consistent with .. . federal laws and regulations”. The Court then went on to rule that the Department of Natural Resources would have “the same exclusive jurisdiction” over the present hazardous waste control legislation (La..S. 30:1131-1149). IT Corporation argues that Rollins eliminated any questions concerning the Department of Natural Resources’ exclusive jurisdiction over the entire area concerning the development, implementation, and enforcement of the comprehensive state hazardous waste control program, including permits.

The simple answer to this argument is that the powers the Legislature granted to the Commission on Ethics for Public Employees do not infringe upon this exclusive jurisdiction of the Department of Natural Resources. Merely because a state department or agency has been granted “exclusive jurisdiction” over a particular area does not mean that its employees are thereby granted immunity from having to comply with legislation specifically designed to regulate the conduct of all state employees. Because the various administrative powers granted the Commission on Ethics for Public Employees which are involved here do apply to all state employees on an equal basis, it cannot be said that the exercise of such powers usurps the exclusive jurisdiction of a state agency or department. This argument is without merit.

IT Corporation also argues, however, that even if the Commission has the power to cancel or rescind its contract with the Department of Natural Resources, the Commission has no authority to do likewise with the three permits issued to IT Corporation by the Environmental Control Commission. IT Corporation bases this argument upon the interpretation it gives to La.R.S. 42:1152.

La.R.S. 42:1152 reads, in relevant part, as follows:

“§ 1152. Rescission of action of a governmental entity
“Subject to the limitations hereinafter set forth, an ethics body may cancel or rescind any contract involving a governmental entity without contractual liability to the governmental entity where: “(1) The ethics body has found that a violation of this Chapter within its jurisdiction has influenced the making of such contract.
“(2) The ethics body finds under all of the circumstances that the interests of the governmental entity so require; however, such rescission is to be limited so as to not adversely affect the interests of innocent third parties.”

“Action of a governmental entity”, as used in the title to the above section is itself defined in the present Code in Section 1102(l)(b):

“(1) ‘Action of a governmental entity’ means any action on the part of a governmental entity or agency thereof including, but not limited to:
(b) Any grant, payment, award, license, contract, transaction, decision, sanction, or approval, or the denial thereof, or the failure to act with respect thereto; and in which the governmental entity or any of its agencies has an interest, except in matters involving criminal prosecutions.”

IT Corporation argues that had the Legislature intended to empower the Commission on Ethics for Public Employees to cancel or rescind all of the governmental actions listed in Section 1102(l)(b), it would have specifically enumerated these actions in Section 1152. However, because the only such action mentioned in Section 1152 is “contracts]”, IT Corporation argues, the Commission has no authority to cancel or rescind the three permits, which IT Corporation claims to be more in the nature of licenses than contracts.

The Commission, on the other hand, argues that because the Legislature has specifically empowered it to cancel or rescind “contract[s]”, the Legislature “implicitly has armed the Commission with the jurisdiction and authority to set aside the less favored and ‘nonproprietary interest’ permits and licenses.”

This Court cannot ignore the unambiguous wording of Section 1152. In it, the Legislature clearly limited the governmental actions which the Commission can cancel or rescind to “contract[s]”, and having done so, we hold that it is beyond the power and authority of the Commission to cancel or rescind any “license”.

The final issue with which we are faced is whether the permits involved in this case are “contracts” or “licenses” within the meaning of the Code of Governmental Ethics. The Code itself offers no definition of either term, but the Louisiana Civil Code does define a “contract” in Article 1761 as follows:

“A contract is an agreement, by which one person obligates himself to another, to give, to do or permit, or not to do something, expressed or implied by such agreement.”

We note that the Legislature, in the Louisiana Environmental Affairs Act, specifically describes each of the three types of permits involved in this case as being similar to, if, indeed, not interchangeable with, a “license”. See La.R.S. 30:1085; 30:1095; and 30:1137.

A license has been defined as “the formal permission granted by a sovereign, generally for a consideration (fee), to a person, firm or corporation, to pursue some occupation or to carry on some business without which the act permitted would be illegal.” ACORN v. City of New Orleans, 407 So.2d 1225 (La.1981). All three permits involved herein are in accord with this definition.

Finally, we note that our courts have on previous occasions, specifically differentiated between contracts and permits.

“A contract, generally speaking, is an agreement, legally enforceable, between two or more persons to do or forbear something. A permit, generally speaking, is a license, revocable at will, granted by a competent authority, by which some restraint or illegality is removed. Gordy v. Maestri, 170 La. 281, 127 So. 628 (1930).”

Also see State v. Louisiana State Boxing Commission, 163 La. 418, 112 So. 31 (1927).

For these reasons, we are led to conclude that the permits involved in this case are “license[s]” within the meaning of the Code of Governmental Ethics, and, as such, are immune from either cancellation or rescission by the Commission on Ethics for Public Employees.

Since we have determined that IT Corporation is subject to the jurisdiction of the Commission on Ethics for Public Employees, the case is remanded to the Commission for further proceedings, consistent with this opinion, and according to law. All costs of this appeal shall be paid by IT Corporation, with all other costs to await final determination of this matter on its merits.

REMANDED.

SAVOIE, Judge,

dissenting.

I respectfully dissent.

Simply stated, Assignments of Error 2 and 3 attack the jurisdiction of the Commission on Ethics for Public Employees over IT Corporation. The issue raised is whether private corporations are public employees or public servants within the meaning of the act.

At the outset, it should be noted that the Commission does have jurisdiction over persons other than state employees. See Kane v. Louisiana Commission on Governmental Ethics, 250 La. 855, 199 So.2d 900 (1967). It is equally imperative to note that IT Corporation and Research Associates, Inc. are private corporations. Ned Cole is the president and sole stockholder of Research Associates, Inc.

The Commission on Ethics for Public Employees made two charges against IT Corporation. The first charge is that IT Corporation violated La.R.S. 42:1112(A) in that:

“IT Corporation, as a ‘state employee’ within the meaning of the above cited prohibition was proscribed by the cited section of the Code from ‘participating’ in a ‘transaction’ involving the state in which IT Corporation had a substantial economic interest.
“IT Corporation, by negotiating to acquire an option to purchase the tract of land designated in the study as ‘Area F achieved a substantial economic interest in the transactions more particularly set forth in subparagraph 2 above.”

La.R.S. 42:1112(A) reads, in pertinent part, as follows:

“No public servant ... shall participate in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity.”

The second charge is that IT Corporation violated La.R.S. 42:1117 of the Governmental Ethics Code in that IT Corporation, as a state employee, or in the alternative, as an “other person”, violated section 1117 of the Code by paying, transferring, and delivering unto Ned Cole and Research Associates, Inc. a thing of economic value in the form of payments totaling $53,836.00, that Research Associates, Inc. and Ned Cole were prohibited from receiving by reason of La. R.S. 42:llllC(2)(d) of the Governmental Ethics Code.

La.R.S. 42:1117 reads, as follows:

“1117. Illegal payments
“No public servant or other person shall give, pay, loan, transfer, or deliver or offer to give, pay, loan, transfer or deliver, directly or indirectly, to any public servant or other person anything of economic value which such public servant or other person would be prohibited from receiving by any provision of this Part. “Acts 1979, No. 443, § 1, eff. April 1, 1980.”

La.R.S. 42:llllC(2)(d) reads, in pertinent part, as follows:

“1111. Payments from nonpublic sources “C. Payments for nonpublic service “(2) No public servant shall receive anything of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are:
* * * * * *
“(d) Neither performed for nor compensated by any person from whom such public servant would be prohibited by R.S. 42:1115 from receiving a gift.”

La.R.S. 42:1115 reads, as follows:

“1115. Gifts
“A. No public servant shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director, agent or employee of such person, if such public servant knows or reasonably should know that such person has or is seeking to obtain contractual or other business or financial relationships with the public servant’s agency.
“B. No public employee shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director, agent or employee of such person, if such public employee knows or reasonably should know that such person:
“(1) Conducts operations or activities which are regulated by the public employee’s agency.
“(2) Has interests which may be substantially affected by the performance or nonperformance of the public employee’s official duty.
“Acts 1979, No. 443, § 1, eff. April 1, 1980.”

Charge number one by the Ethics Commission is clearly dependent on IT Corporation being a state employee within the meaning of the Code of Governmental Ethics. The same is true of the primary charge in charge number two. However, the alternative charge in charge number two is that IT Corporation, as an “other person” violated the Code by subcontracting part of its work to Ned Cole and Research Associates, Inc. and paying them therefor. This alternative charge presuposes that Research Associates, Inc., a private Louisiana corporation, was a “state employee” within the meaning of the Code. The naming of Ned Cole as an individual in this charge is of no consequence since the record clearly reflects that Ned Cole at all times acted in his capacity as president of Research Associates, Inc. and that the contractual relationships in question were between the State and Research Associates, Inc., and not with Ned Cole, individually.

Distilled to its finest point, the determining factor here is whether or not the word “anyone” as used in La.R.S. 42:1102, Definitions, Subsection 18 — Public Employee, is a term of precise usage requiring only fact-finding by the agency and judicial review by this court, or is an inexact term which would require agency interpretation and judicial review by this court consistent with legislative policy.

We find, as a matter of law, that the word “anyone” is used as an exact term. The position of IT Corporation in this matter is that it is not a public employee within the meaning of the statute and it cites R.S. 42:1102, subsection 18 in support of its allegations.

It is the position of the Commission on Ethics for Public Employees that IT Corporation is a public employee within the meaning of the statute, and it cites R.S. 42:1102, subsection 18, in support of its contention. R.S. 42:1102, subsection 18, reads as follows:

“ ‘Public employee’ means anyone whether compensated or not, who is: (subsection c) engaged in the performance of a governmental function.” (Emphasis added) (See Footnote 1)

The term “public servant” is used interchangeably with public employee and is defined as follows:

“19. ‘Public servant’ means a public employee or an elected official.”
The word “anyone” is not defined further under R.S. 42:1101.

R.S. 42:1102, subsection 16, reads as follows: ...

“ ‘Person’ means an individual or legal entity other than a governmental entity or agency thereof.” (See Footnote 1)

The statute clearly defines the word “person” to include a private corporation. IT Corporation argues that had the legislature intended the definition of “public employee” to include private corporations, it would have read “public employee means any person”. The Commission asserts that if the legislature had intended to limit the concept of “public employee” to individuals or human beings, it could easily have done so by using these terms. The Commission further contends that it was the intention of the Redactors of the Code to provide that all entities that render services to the state must conduct themselves within the framework of the Code of Governmental Ethics.

The issue is one of legislative intent. Where provisions of the law are clear and unambiguous, courts will not deviate from the terms on the pretext of pursuing the spirit of the law. Glazer v. Commission on Public Ethics for Public Employees, (La. App. 1st Cir.1982), 417 So.2d 456.

Repeated thorough readings of the Code of Governmental Ethics as embodied in R.S. 42:1101 et seq. dictate that the word “anyone” was used advisedly by the legislature to exclude from the definition of public employees, private corporations.

The legislature has carefully used the word “person” wherever it intended private corporations should be covered under the provisions of the Code.

An example of clear legislative intent to use the word “person” when including corporate entities is found in R.S. 42:1112B, subsections 2, 3, 4 and 5, which read as follows:

“No public servant ... shall participate in a transaction involving the governmental entity in which to his actual knowledge any of the following persons has a substantial interest:
* * * * * *
“(2) Any person of which he has a substantial economic interest of which he may reasonably be expected to know.
“(3) Any person of which he is an officer, director, trustee, partner or employee.
“(4) Any person with whom he is negotiating or has an arrangement concerning prospective employment.”
(Emphasis added)

Another example of the legislature’s intent not to equate “public servant” with private corporations can be found in R.S. 42:1141, subsection D, Procedure, subsection 5, 6 and 7, wherein the phraseology is used as follows:

“Subsection 5:
“No disciplinary action shall be taken against a public servant or person ...
“Subsection 6:
“Any public servant or other person ...
“Subsection 7:
“Any public servant or other person .. .
(Emphasis added)

These examples erase any doubt as to the legislature’s intent regarding private corporations.

The legislature, when intending to include private corporations under this act, advisedly used the word “person”, and its failure to do so in the definition of public employee in La.R.S. 42:1102, section 18, dictates the legislature’s intent to exclude therefrom private corporations.

Were we to consider the usage of the word “anyone” as inexact, which would then require agency interpretation and judicial review for consistency with legislative policy, we would, based on the above and foregoing, find that the word “anyone” is meant to exclude private corporations.

For the above reasons, the ruling of the Commission denying the exceptions should be reversed, the exception to the jurisdiction of the Commission on Ethics for Public Employees should be maintained and the charges against IT Corporation should be dismissed.

For the foregoing reasons, I respectfully dissent.

      . “Person” by definition includes public employees; the reverse, however, is not true. Public employee is defined within the scope of the Ethics Code while the scope of the definition of person is not so limited.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Carolyn J. FALGOUT, Plaintiff-Appellant, v. William B. WARDLAW, et al., Defendants-Appellees.
    No. 15020.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Donald R. Miller, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for defendant-appellee, William B. Wardlaw.
    Hargrove, Guyton, Ramey & Barlow by Billy R. Pesnell and Joseph L. Shea, Jr., Shreveport, for defendant-appellee, Amy Sue Hebert Wardlaw.

      James L. Fortson, Shreveport, for defendant-appellee, Glen Wardlaw.
    Before MARVIN, FRED W. JONES and NORRIS, JJ.
   MARVIN, Judge.

Ms. Falgout appeals a judgment rejecting her demands for personal injury damages arising out of her fall on a partially decked pier on Lake Bistineau.

The factual and legal issues relate to the trial court’s finding that Ms. Falgout’s recovery was barred by her fault. We affirm.

The pier is supported by posts or pilings and is depicted in this photograph.

Each pair of posts is about six feet from the next pair. Ms. Falgout was the social guest of defendant William Wardlaw, who partially decked the pier and frequented the camp with the tacit permission of his brother, Glenn, who owned the once community camp and began construction of the pier. Glenn Wardlaw and his wife, divorced co-owner, were also made defendants in this action.

Ms. Falgout accompanied William to the camp on a Saturday afternoon, arriving there from Shreveport about 3:30 p.m. After the two had consumed an eight-pack of “little” beers purchased on the way to the camp, Ms. Falgout also drank some vodka she found in the kitchen of the camp, according to William. While it was still daylight about 7:00 p.m., Ms. Falgout, with a drink in hand, went with William outside the camp while he checked on the camp utilities. William says that he told her not to go on the pier and that she told him, “don’t tell me what to do, ... [I have] walked on every pier on Lake Bistineau

William said that Ms. Falgout went all the way to the end of the pier and sat there. Ms. Falgout was returning toward the camp when she fell near post four. William said that after she got on the pier he told her not to go past where the boards were close together (%2 inch spacing between posts one and three almost to post four). In any event Ms. Falgout says that her shoe “got caught between two boards under a board ...” and she fell, suspended by her foot with her head and arms in the water. She suffered serious injuries to her knee and leg.

William, who at one time went on the pier between posts one and two, by this time was back on the ground and heard, but did not see, Ms. Falgout hit the water. He went to her aid and later helped her obtain medical attention.

Notwithstanding that the trial court found the pier, because of its partially constructed state, to be defective and to pose an unreasonable risk of harm to anyone who might walk on it, Ms. Falgout’s demands were rejected because the circumstances constituted “victim fault”.

In concluding that the accident occurred because of the victim’s fault, the trial court said that Ms. Falgout saw, understood, and assumed the risk [of tripping in a space between the decking of the pier]. Ms. Falgout could testify only that her shoe or heel got caught on one of the boards. William testified that she was suspended by her foot which was caught underneath one of the decking boards when he came to her aid.

As a defense to CC 2317-2322 liability, victim fault in some circumstances may encompass either or both assumption of the risk and contributory negligence. Dorry v. Lafleur, 399 So.2d 559 (La.1981). Victim fault is a defense in Louisiana to this strict liability. Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971); Loescher v. Parr, 324 So.2d 441 (La.1975); Dorry, supra; Carpenter v. State Farm Fire and Cas. Co., 411 So.2d 1206 (La.App. 4th Cir.1982).

Knowledge is the mainstay of assumption of risk and is imputed to a plaintiff, not because he was in a position to make observations, but only when he actually made the observations and it is found that plaintiff should reasonably have known that a particular risk existed. Dorry, supra; Bass v. Aetna Ins. Co., 370 So.2d 511 (La.1979). Assumption of risk is a subjective inquiry. Carpenter, supra; Langlois, supra.

Contributory negligence is conduct which falls below the reasonable man standard and is determined by objective inquiry on a case to case basis. As a defense to CC 2317-2322 liability, it is applied only where the policy considerations imposing the liability on the defendant in the first place are not present, such as where the defendant’s conduct is not ultra hazardous, not abnormally dangerous, is not that of a manufacturer whose product causes injury, and is not commercial in the sense that it is designed to render a profit. Where these policy considerations are not present, victim fault includes contributory negligence. Dorry, supra; Carpenter, supra. Some circumstances which may not constitute assumption of risk, may constitute contributory negligence. Carpenter, supra.

Here Ms. Falgout was told by her host not to go on the pier and, after she was on it, she was effectively told not to walk on the area where the decking boards were widely spaced. She had knowledge and, having traversed the pier to its end, she admittedly observed the variance in spacing of the decking. She was returning to the safer area where the decking was' more closely and uniformly spaced when her foot or shoe got caught. The trial court’s conclusions that she saw and understood the risk are supported by competent evidence which the trial court could believe. We find no error in the ultimate conclusion that Ms. Falgout assumed the risk because she observed and she was effectively told of the risk. Under these circumstances she should reasonably have known of the existence of the particular risk of getting her foot or her shoe caught in the wider spacing. Dorry, Bass, supra.

These circumstances also constitute contributory negligence. Compare Booth v. Potashnick Construction Company, 420 So.2d 512 (La.App. 2d Cir.1982). The defendants here were not engaged in an ultra hazardous or abnormally dangerous activity and were not engaged in a commercial enterprise. While the Wardlaw brothers manufactured or constructed the partially completed pier, they cannot be deemed to have been manufacturers of a product to gain a profit. The policy considerations or factors which impose strict liability to which contributory negligence is not a defense are sorely lacking and, in such circumstances, contributory negligence is encompassed in the defense of victim fault. Loescher, Dorry, Carpenter, supra. See also Lambert v. McReynolds, 402 So.2d 157 (La.App. 1st Cir.1981).

At appellant’s cost, the judgment is AFFIRMED.

      . Appellant’s four assignments assert that the trial court erred
      “1. ... in finding that the accident complained of occurred because of the fault of the Plaintiff, Carolyn J. Falgout, i.e. she saw the risk, understood the risk and assumed that risk.
      “2. ... in not applying the principles of strict liability pursuant to La.Civil Code Articles 670, 2322, 2693 and 2695 and Daire v. Southern Farm Bureau Casualty Ins. Co., 143 So.2d 389 [La.App., 3 Cir., (1962) ] Cert. denied.
      “3. ... in not accepting that the Plaintiff met the requirements required of her and that she proved she was injured as a result of a premise hazard; and, the burden of proof thereby shifted to the Defendants to show that they were not negligent, which, in this case, no evidence was submitted that they were not negligent.
      “4. ... in not applying the principles of Dorry v. LaFleur, 399 So.2d 559 (Sup.La.) 1981, in applying contributory negligence to the Plaintiff so as to bar her recovery.”

      . William testified that Ms. Falgout drank six or seven of the little beers and that he drank only one because he was not a “beer drinker”.

      . She explained that when she saw that the boards got further and further apart, she elected to go no further and turned around and walked back toward the land.


author: YELVERTON, Judge.

text:
    Doyle Dewane STEADMAN, Plaintiff-Appellant, v. Toni Vercher STEADMAN, Defendant-Appellee.
    No. 82-250.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Jan. 6, 1983.

      Charles W. Seaman, Natchitoches, for plaintiff-appellant.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for defendant-ap-pellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Plaintiff, Doyle Dewane Steadman, brought suit against Toni Vercher Stead-man seeking to set aside on the basis of lesion the community property agreement they entered into as a settlement of the former community of acquets and gains existing between them. Plaintiff appeals from a judgment dismissing his demands at his costs. We affirm for different reasons.

The record reveals the following facts. On May 30, 1978 the parties entered into a community property settlement agreement. By this agreement Doyle Steadman transferred his undivided interest in the following property to his former wife:

1) The family home and lot;
2) The 1977 Mustang automobile;
3) All furniture, appliances, fixtures and all contents of the family home.

Toni Steadman transferred to Doyle her undivided interest in the following items:

1) MG automobile;
2) A barbeque pit;
3) A camera;
4) Certain books belonging to Doyle Dwane Steadman;
5) A barge and motor;
6) A Sounde Sign stereo;
7) One bicycle;
8) One Sears television;
9) One small ice chest.

Besides partition of the above community property the agreement also provided for the following:

1) That Doyle pay his former wife $50;
2) That Toni assume the payménts on the 1977 Mustang;
3) That Doyle assume the payment of the note for carpet purchased;
4) That if Toni sells the family home within five years of the agreement, Doyle shall receive $2,500, otherwise Doyle shall be due nothing from the sale of the house.

At trial the defendant Toni, over the objection of the plaintiff Doyle, offered evidence to show that Doyle had received monies from his retirement benefits and his life insurance policies which were not included in the community property settlement agreement. Including these items in his calculations, the trial court found that each party received property of substantially equal value and dismissed Doyle’s demands at his costs.

The issues are 1) whether the trial court erred in admitting items outside the agreement and 2) whether the trial court erred in failing to set aside the agreement on the basis of lesion.

Appellant contends that the agreement was by authentic act and is therefore full proof between the parties and that the trial court erred in considering the life insurance and retirement benefits in determining whether the agreement should be set aside on the basis of lesion. We agree.

The community property settlement agreement clearly indicated the property included within the partition. Its provisions are clear and unambiguous. The agreement is also in authentic form, having been executed before a notary public and two witnesses in conformity with La.Civ. Code art. 2234. Therefore under La.Civ. Code art. 2236 the document is full proof of the agreement between the contracting parties. Since the agreement is clear and unambiguous as to the property included and there have been .no allegations that the contract was a forgery, the trial court erred in varying the terms of the agreement by allowing parol evidence to show that the husband also received the life insurance and retirement benefits. See La.Civ.Code art. 2276; Brooking v. Brooking, 407 So.2d 1342 (La.App. 3rd Cir.1981); Gay v. Martinolich, 271 So.2d 689 (La.App. 1st Cir.1972).

This error, however, is of no consequence in the ultimate resolution of the case as we find that without counting the omitted benefits, the partition is still not affected by lesion.

In considering whether an agreement should be set aside on the basis of lesion, the applicable codal provisions are La.Civ. Code arts. 1860, 1861(1) and 1398, which provide as follows:

“Art. 1860. Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy given for this injury, is founded on its being the effect of implied error or imposition; for, in every commutative contract, equivalents are supposed to be given and received.
“Art. 1861. The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied error or imposition, except in the two following cases:
“1. In partition where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one or [of] the parties;
♦ * * * * *
“Art. 1398. They may even be rescinded, on account of lesion; and, as equality is the base of partitions, it suffices to cause the rescission, that such lesion be of more than one-fourth part of the true value of the property.”

As the court stated in Bedwell v. Bedwell, 399 So.2d 685 (La.App. 1st Cir.1981):

“The proper way to determine lesion beyond one-fourth is to first determine the property’s true value and then to calculate whether a party received three-fourths of his share. LSA-C.C. Art. 1398. Pitre v. Pitre, 162 So.2d 430 (La. App. 3rd Cir.1964), affirmed 247 La. 594, 172 So.2d 693 (1965).”

The plaintiff has the burden of proving that he or she received less than three-fourths of the share to which he was entitled. Furthermore, this burden of proof must meet the “clear and convincing” test. Ozane v. Ozane, 392 So.2d 774 (La.App. 3rd Cir.1980).

There were twelve items of community property partitioned. At trial the values of three of these were stipulated as follows:

1. Equity in house and lot $9,108.00
2. Barge and motor 1,350.00
3. Equity in Mustang -0-

The trial judge considered the proof of the following six items to be as follows:

1. Household furniture $ 600.00
2. Camera 100.00
3. MG automobile 640.00
4. Stereo 200.00
5. Television 50.00
6. Bicycle 30.00

It is apparent from the trial court’s written reasons that there was no evidence presented, hence no basis for evaluating the remaining three items, the barbecue pit, antique trunk and books.

We have studied the record and agree with the trial court’s findings of fact as to these values. We move now to a consideration of whether, under the whole contract of partition, lesion has been proved.

By simple addition, the value of the community property that was partitioned was $12,078. An exact partition of values represented by these 12 items would have resulted in each party receiving the equivalent in value of $6,039. Obviously, this did not happen. Toni received property valued at $9,758 while Doyle’s share was only $2,370.40.

There is more to the partition, however, than the simple allocation of items of property. It is apparent that the parties recognized the disparity in the amount of property each received and attempted to adjust the differences elsewhere in the settlement. This adjustment appears in the agreements that (1) Doyle pay Toni $50, (2) Toni assume the payments on the Mustang, (3) Doyle assume the payments on the carpet note, and (4) Toni pay Doyle $2,500 from the proceeds of the house if she sells it within five years from date of partition.

The most significant of these four items was Toni’s assumption of the note on the Mustang. The balance due, and the obligation she thereby assumed, was $3,468. A few weeks before the partition when the judgment of separation was granted, the trial court had ordered Doyle to pay the notes on the Mustang as part of his child support obligations. Therefore, when Toni assumed these payments under the partition, this was a direct financial benefit to Doyle in the amount of $3,468. The Mustang itself had a zero value for partition purposes, since there was no equity value in it. Thus, when Doyle was relieved of his judgment debt for child support expressed in terms of the car payments, this financial adjustment not only benefited him to the extent of $3,468, but at the same time in a like amount it decreased Toni’s effective share of the partition, because it burdened her with an additional obligation for child support — or ear notes, however one might choose to describe it.

In the same way, of course, Doyle’s payment to his wife of $50 and his assumption of the carpet note ($449), operated to switch $499 from his column to hers.

The result means $6,789 for Toni and $5,339 for Doyle. These calculations do not take into account the possibility that Doyle will benefit further from the partition in the amount of $2,500, should Toni sell the house within five years from the agreement.

Based on the true value ($12,078) of the property being partitioned, Doyle’s actual share ($5,339) was well above the three-fourths ($4,529) to which he was entitled. Lesion does not exist and the trial court properly dismissed the petition to rescind the partition.

For the reasons given, the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.

      .These items, evidently omitted by mutual oversight, are properly the subject matter of a supplementary partition. See La.Civ.Code art. 1401.


author: DOUCET, Judge.

text:
    Ronald J. NAQUIN, Plaintiff-Appellee, v. AIR ENGINEERED SYSTEMS & SERVICES, INC., et al., Defendants-Appellants.
    No. 82-327.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Jan. 6, 1983.

      Porteus R. Burke, New Iberia, for defendants-appellants.
    Charles N. Wooten, Sr., Lafayette, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

Defendants, Air Engineered Systems & Services, Inc., and its majority stockholders, appeal the judgment of the trial court allowing plaintiff-shareholder, Ronald J. Na-quin, to inspect certain corporate records and assessing penalties for defendants’ refusal to allow examination. We affirm.

The trial judge accurately summarized the facts giving rise to this suit as follows:

“On March 5, 1982, Mr. Naquin filed this suit for a mandamus issued to the defendant corporation, ordering them to allow the plaintiff to inspect the books and records that they have, and he seeks penalties and attorney’s fees under R.S. 12:172(D). An exception of no cause of action was filed by the defendant, claiming that the plaintiff had no right to inspect the books as he does not hold the requisite number of shares under R.S. 12:103, and they also oppose the order for the writ of mandamus, and they request an order prohibiting inspection of the books.

The facts are that on December 20, 1977, Air Engineering Systems and Service, Inc. was organized and 300 shares of common stock were issued to the following:

Ronald Naquin, plaintiff, 100 shares; Keith Dubois, defendant, 100 shares, the corporate president; Dennis Hoffpauir, a defendant, 100 shares, the corporate secretary-treasurer.

The plaintiff was employed by the corporation until November 17, 1981, when he was discharged. He made a written request (dated November 20, 1981) to the defendant for an appointment to examine the corporation books and records and the plaintiff was advised to contact Attorney Burke. Mr. Burke received a written demand (dated February 8, 1982) from the plaintiff’s attorney to inspect the corporate records. On February 10,1982, the defendant mailed a notice to all of the shareholders of a special meeting of the corporation. The defendants also asked the plaintiff for a hold-harmless agreement, an indemnification agreement, concerning the inspection of the books, claiming that the plaintiff was a competitor. The plaintiff refused to sign this hold-harmless agreement.

On February 26, 1982, a special shareholders meeting was held whereby the two individual defendants voted to increase the capital stock by issuing 15,000 new shares of stock at $10.00 each. Preemptive rights were granted and the two individual defendants each subscribed to 5,000 shares of stock, bringing their total to 5,100 shares each. The plaintiff did not exercise his option and still holds 100 shares. On February 28, 1982, the defendant mailed plaintiff what they termed is a financial statement, showing that the corporation had total assets of $885,181. The so called balance sheet of February 28,1982, is unsigned and was prepared without an audit. The plaintiff claims that his balance sheet shows assets of $2,016,500.

On March 5, 1982, this suit was filed and the two issues are: Does the plaintiff have a cause of action to bring this request for a mandamus and if so, is he entitled to view the corporate records.

The evidence showed that the defendant corporation is in the business for the sales and service of air compressors all over southern Louisiana'and even out of state. Their sales are about 85 to 90 percent of the business and the service makes up the balance. The plaintiff was employed mostly as a salesman for the defendant corporation. Sometime in November 1981, dissatisfaction occurred between the three shareholders and Mr. Naquin’s services were terminated. At about the same time, Mr. Naquin became self-employed, being the sole owner of Air Compression Energy Systems, which is a competitor to the defendant corporation. In November the corporation owed the plaintiff $60,000. He demanded payment and received it from the corporation. Another employee of the defendant, Mr. Braumbaugh, left the defendant and joined the plaintiff in January of 1982.

The two individual defendants also demanded money from the corporation and they used that, inter alia, to purchase the 15,000 shares of new stock. In addition to that, the salary of Mr. Hoffpauir was increased in March from $3,500 a month to $6,000 a month.

Mr. Dubois, the president of the corporation, stated that the plaintiff’s main area was in sales, that the business they are in is very competitive from a money standpoint, and from a design standpoint. Apparently their business is to try to design and install compressors to fit on drilling rigs, utilizing the least weight and space available. In addition to the machines, there is a lot of details and drafting necessary to this, and that the plaintiff was not connected with that aspect of it. Mr. Dubois further said that the plaintiff had made a contract with a corporation while he was still with the defendant corporation, and after he left them in November, when Mr. Dubois inquired, he learned that the contract was awarded to the plaintiff’s new outfit. Because of this and other behavior, such as going into competition with them and hiring away at least one employee and attempting to possibly entice another away, the defendants do not want the plaintiff to look at their rig packages and books because they fear that he would use that in an unfair manner. He did indicate that he would not object to a protective audit.”

The trial court concluded that plaintiff was a business competitor of the defendant corporation entitled to inspection of defendants’ financial books and records as they pertained to net worth of the corporation. Matters pertaining to design and structure of defendants’ product were excluded. A writ of mandamus was issued accordingly. Thereafter, defendant filed the present sus-pensive appeal.

Defendant urges the following arguments on appeal:

1. The lower court erroneously refused to prevent inspection of corporate books by a competitor owning less than twenty-five per cent (25%) of the outstanding shares.

2. The lower court erroneously awarded attorney’s fees to plaintiff.

3. The lower court erroneously restricted its protective orders to bid packages or matters which pertain to design and structure since any review of the corporate books will reflect accounts for which both parties are competing.

R.S. 12:103(D) provides in pertinent part that on five days written demand any shareholder, except a business competitor, who owns two percent (2%) of the stock, shall have the right to examine for any proper and reasonable purpose the records and accounts of the corporation. A business competitor is required to own a minimum of twenty-five percent (25%) of all outstanding shares of the corporation for six months before he may assert the above-mentioned rights. A court may deny the right of inspection as to confidential matters or order the production of documents pursuant to applicable provisions of the Code of Civil Procedure.

As was noted in Bennett, 2 La.L. Rev. 597 (May, 1940): “The right to information is important to every shareholder. Unless he can apprise himself on corporate affairs, his right to vote becomes a mirage.” We find, as did the trial judge, that the purpose of issuing the new shares with subscription rights while withholding access to corporate records was to place the plaintiff in a position where he could not intelligently buy new stock and, as a result thereof, would lose his requisite twenty-five percent share necessary to inspect the books as a business competitor. Appellant asserts that plaintiff lost his right to inspection of corporate records upon his failure to timely exercise preemptive rights as to the new issue. If the law were as appellant contends, shareholders such as the former bo-ardmember herein could be denied the right to inspect corporate records by the majority shareholders’ rapid watering of shares. The determinative date, vis-a-vis R.S. 12:103 rights, is the date of demand, not the date of corporate compliance. Plaintiff was a shareholder of record, owning the requisite number of shares on November 20, 1981, the date of demand. Therefore, he was entitled to inspect the corporate books. That he subsequently lost his 25% status is immaterial.

Appellant also contends that plaintiff’s November 20,1981 demand for inspection was insufficient to commence the 5-day period within which the corporation is to respond insofar as the abovementioned letter asked only to schedule an appointment for examination of books and records. We find no merit in the argument. Plaintiff’s assertion of right was clear.

The decree of the trial court that attorney’s fees would be awarded pursuant to R.S. 12:172(D) is not a final appealable judgment inasmuch as the trial judge stated “this award shall be made at a subsequent date” and the suspensive appeal herein intervened. Nevertheless, for reasons of judicial economy, we address the issues presented by appellant.

We are well aware of defendants’ contention that provisions of R.S. 12:172(D) are penal in nature and are therefore subject to the rule of strictis juris. The strict construction urged by appellant, however, would render the statute negatory. Appellant maintains that since R.S. 12:172(D) does not expressly specify attorney’s fees as recoverable, same cannot be construed to fall within the statute’s penal provisions of “costs”, “expenses” or “any other damages”. Such an interpretation would render the statutory rights meaningless. Attorney’s fees may be recovered pursuant to R.S. 12:172(D) where the evidence reveals that defendant corporation acted in bad faith in refusing to permit statutorily authorized examination of corporate records by qualified shareholder. Lanaux v. Ace Production, Inc., 396 So.2d 461 (La.App. 4th Cir.1981).

With respect to appellant’s final assignment of error, that the trial court erroneously restricted its protective order, the record discloses that this argument is entirely speculative. The burden is upon the corporation to sustain its allegations that a shareholder’s motives are improper or unreasonable and the evidence is insufficient to warrant denial of inspection. Plaintiff, as former sales agent for appellant, is already aware of the potential market and customers served by the corporation. Documents relative to the company’s past activities are necessary for plaintiff to ascertain the value of his interest in the corporation. The trial court did not exceed its power in ordering the production of documents.

For the reasons assigned hereinabove, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: PONDER, Judge.

text:
    Belinda Dyson Chaney, Wife of/and Joe CHANEY v. STATE of Louisiana, Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al.
    No. 82 CA 0029.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Writ Granted Jan. 10,1983.
    Leon D. Jackson, Baton Rouge, for plaintiffs-appellants.
    Duncan S. Kemp, III, Hammond, for defendants-appellees.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Plaintiffs appealed from the judgment of the trial court dismissing their medical malpractice suit on a peremptory exception of prescription.

The sole issue is the peremption of plaintiffs’ cause of action under LSA-R.S. 9:5628. We affirm.

Plaintiff, Belinda Dyson Chaney, received an appendectomy at Lallie Kemp Charity Hospital on June 20, 1977. She was released two days later. Repeated efforts to discover the cause of severe abdominal pains starting in the summer of 1978 proved futile and it was not until January 30,1981, that the trouble was diagnosed as extensive abdomino-pelvic adhesions, resulting from the 1977 surgery. On February 4, 1981, plaintiff underwent surgery to repair the adhesions. This suit was filed on May 11, 1981.

The exception was tried on the face of the pleadings. The trial judge maintained the exception and dismissed the suit.

The prescriptive period for a medical malpractice action is found in LSA-R.S. 9:5628 which provides, in pertinent part:

“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of alleged act, omission or neglect.” (Emphasis added.)

The alleged acts of malpractice occurred on or about June 20, 1977. Plaintiffs filed suit more than three years thereafter. In an effort to avert the dismissal of their suit, plaintiffs invoked the doctrine of contra non valentem agere nulla currit praescrip-tio. However, the statute is explicit and has no latitude for the application of the maxim. Plaintiffs’ cause of action is per-empted.

For the above reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: SAVOIE, Judge.

text:
    DEPARTMENT OF CULTURE, RECREATION AND TOURISM, Office of Tourism v. Myra F. PEAK.
    No. 82 CA 0035.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.

      A. Kell Mclnnis, III, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellant.
    Floyd J. Falcon, Jr., Avant & Falcon, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Gen. Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner, Director, Dept, of State Civil Service.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

The Department of Culture, Recreation and Tourism appeals a decision of the Civil Service Commission rendered in favor of Myra F. Peak and ordering her reinstated within the Department. The Department specifies as error the Commission’s failure to grant its motion for summary disposition, several findings of fact made by the Commission, and the award of attorney’s fees.

We hold the Commission did not err in denying the motion for summary judgment. Further, we conclude there existed no manifest error on the part of the Commission in its conclusions of fact and the award of attorney’s fees.

Ms. Peak was a probational employee for the Department when she was terminated by Mrs. Lawrence Fox, Secretary of the Department. Mrs. Fox’s reason for terminating Ms. Peak was that Ms. Peak’s performance did not meet the standards of the position as required by the Department. Ms. Peak appealed, alleging, among other things, discrimination and that her termination was based on political and non-merit factors. The Department filed a motion for summary disposition which was denied. At a hearing on the merits before the Civil Service Commission, the Commission made thirteen findings of fact and concluded that Ms. Peak sustained her burden of proving the discrimination was based on non-merit factors and ordered her reinstated. Further, the Commission determined the Department was grossly unreasonable in its action and awarded Ms. Peak $500 in attorney’s fees.

The Department first alleges that the Commission erred in failing to grant its motion for summary disposition. It claims that Ms. Peak’s notice of appeal fails to set forth any definitive allegations of discrimination as required by Civil Service Rule 13111(d). The notice of appeal alleges that Ms. Peak was terminated for political or non-merit factors. In support thereof, the notice sets out a sequence of events evidencing that Ms. Peak was terminated by a person not in a position to evaluate her job performance and that those persons in a position to do so were satisfied with her work. Further, it states that Director of the Office of Tourism refused to sign the letter of termination and, in contrast thereto, had previously signed the papers to make Ms. Peak’s appointment permanent. In light of the foregoing, the Commission did not err in denying the motion for summary judgment.

In specifications of error two and three, the Department complains that the Commission erred in several findings of fact. The scope of review in Civil Service cases is the same as that in any other civil case. The findings of fact made by the Commission must be accorded much weight and will not be overturned in the absence of manifest error. Brook v. Louisiana State University, Baton Rouge Campus, 405 So.2d 1216 (La.App. 1st Cir.1981); Department of Public Safety, Office of State Police v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981), writ denied, 406 So.2d 626 (La.1981).

The Department contends that the Commission erred in concluding that Ms. Peak supervised 60-65 employees. Further, it claims the Commission erred in determining that the reports concerning Ms. Peak’s telephone demeanor constituted non-merit information. We find no manifest error on the part of the Commission as the evidence supports these factual determinations.

In its fourth specification of error, the Department claims the Commission erred in finding that the terminology used as the reasons for removal was improper. This assignment of error is without merit. Absent from the Commission’s opinion is any finding as to the terminology used as the reasons for removal. However, the Commission did state that implicit in the reading of Civil Service Rule 9 (particularly 9.1(a) and (e)) are the expectations that: (1) the dismissal or retention of the probationary employee be based upon the results of the examination process; and (2) the reasons stated for the dismissal are the true reasons. In this instance, the Commission concluded that neither of these circumstances existed in the termination of Ms. Peak.

Lastly, the Department asserts that the Commission erred in finding the Department was grossly unreasonable in its action, and in awarding attorney’s fees therefor. The reasonableness of the Department’s action is a factual determination to be made by the Commission. It will not be disturbed by the reviewing court absent manifest error. Brook, supra. We find no evidence in the record to indicate that this determination is manifestly erroneous. In fact, there is ample evidence in the record to support this finding.

The authority for the awarding of attorney’s fees in this instance is found in L.S. A.-R.S. 42:1451. It provides:

“In any appeal under Article X Section 8 of the constitution by an employee in the classified state civil service to overturn any action by the department or agency employing him in which the decision to take the action is overruled and such decision is found to be unreasonable, the Civil Service Commission shall order the department or agency to pay reasonable attorneys’ fees incurred by the employee in appealing the action.”

Article X, Section 8 of the constitution states that no classified employee shall be discriminated against because of his political or religious beliefs, sex or race. In her appeal, Ms. Peak alleges^she was discriminated against in that her firing was based on political and other non-merit factors. Therefore, the Commission did not err in awarding attorney’s fees to Ms. Peak.

For the foregoing reasons, the opinion of the Civil Service Commission is affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . “13.11 Request for Appeal.
      “A notice of appeal must

      “(d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail. The specific facts required will vary depending on the nature of the appeal; however, the facts must be alleged in sufficient detail to enable the agency to prepare a defense. A conclusion of discrimination is not sufficient. The types of facts which must be included are:
      1. the date, time and place the discriminatory action took place;

        2. the name of the person or agency alleged to have taken the discriminatory action;
      3. a description of how appellant’s action, conduct or performance was the same as that of other persons who were treated differently;
      4. the names of other persons treated differently and the dates the different treatment occurred;
      5. a description of events, including the dates and circumstances thereof, which led appellant to believe that the adverse decision was based on his religious or political beliefs, sex, race, or any other non-merit factor.”

      . “9.1 Probationary Period.
      “(a) The following appointments shall be made for a probationary period of six months following appointment:
      ******
      “The probationary period shall be an essential part of the examination process and shall be utilized for the most effective adjustment of a new employee and for the elimination of any probationary employee whose performance does not meet the required standard of work.
      * * * * * *
      “(e) A probationary employee may be removed by the appointing authority at any time, provided that the appointing authority shall furnish the Director reasons therefor in writing.”

      . In Ms. Peak’s brief, she requests an increase in the amount of attorney’s fees awarded. As she has neither appealed the Commission’s decision (La. Const. Art. V, Sec. 12), nor answered the Department’s appeal (C.C.P. 2133), the modification sought is not properly before the court for disposition.


author: SHORTESS, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Bobby HARRIS.
    No. 82 CA 0135.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Johnie E. Branch, Jr., Bryan Miller and Bernard Malone, Baton Rouge, for plaintiff.
    Raymond Bennett, Denham Springs, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

On May 10, 1972, the State of Louisiana, through the Department of Highways (State) brought this suit against Bobby W. Harris (appellee) and expropriated .673 of an acre from appellee’s 1.25-acre unimproved tract in Livingston Parish, Sections 44 and 45, Township 7 South, Range 2 East, Greensburg Land District. The State proceeded according to its quick-taking powers of eminent domain (R.S. 48:441, et seq.) and deposited $875.00 in the registry of the court as its estimate of just compensation for the tract taken. The property was needed for the improvement of the Port Vincent-Denham Springs Highway, Louisiana 1032. The taking split the property and left two remainders, one measuring .30 of an acre and the other .130 of an acre.

On May 20,1976, appellee filed an answer and reconventional demand and made the following allegations relative to his damages:

“Value of Whole as of 5/8/72. $2,094.00
Value of Whole as of 5/5/76 (For computing severance damages) .... 4,125.00
Value of remainder, after taking ... 602.00
Less: Value of part taken. 1.127.00
SEVERANCE DAMAGES. $2,296.00”

On the day of trial, February 24, 1981, appellee filed an amending and supplemental answer and reconventional demand with court approval and revised his estimates of damages as follows:

“Value of the Whole as of May 8,1972 $2,049.00
Value of the Whole as of May 8,1979
(For Computing Severance Damages) 8,425.00
Value of Remainder After the Taking
(as of May 8,1972) 602.00
Less Value of the Part Taken (as of
May 8,1972) 1.127.00
SEVERANCE DAMAGES $6,696.00”

One expert witness was called to testify. James E. Carpenter, stipulated to be a real estate appraiser and accepted as such by the court, testified for appellee. He placed a value on the subject property of $1,675.00 per acre at the time of the taking. The part taken amounted to .673 of an acre, which gave him $1,127.00 as the value of the part taken. The State, by stipulation, conceded this value.

The only remaining issue is whether the remainders suffered severance damages. The State contended that there were no severance damages because the remainders could still be used for their highest and best use. Carpenter testified that the properties’ highest and best use was rural residential. He also felt no one would build a residence on either of the remainders because of their size and that the remainders’ only value would come from being absorbed by adjacent properties. His value of $602.00 for the remainders was also stipulated. Carpenter also testified that he had reworked his estimate of severance damages several times. His last estimate, as of May 8, 1979, was $6,696.00.

The State called no expert witnesses and stipulated that the value of the whole property at the time of the taking was $2,049.00; the value of the part taken was $1,127.00; and the value of the remainder was $602.00.

The trial judge rendered and signed judgment in favor of appellee and found severance damages to be $6,696.00, subject to a credit for the deposit previously paid. No award was made by the trial court to reimburse appellee for the part taken.

In State, Department of Highways v. Potter, 204 So.2d 308 (La.App. 1st Cir.1967), we had the occasion to define severance damages:

“Severance damages have been clearly defined as the difference between the market value of the condemned land immediately before and immediately after the expropriation. State Through Dept. of Highways v. Williams, La.App., 131 So.2d 600; State, Through Dept. of Highways v. Gani, La.App., 138 So.2d 683; State, Through Dept. of Highways v. Davis, La.App., 149 So.2d 164; State, Through Dept. of Highways v. Huson, La.App., 166 So.2d 3; State, Through Dept. of Highways v. Lancon, La.App., 174 So.2d 257; Central La. Electric Co. v. Williams, La.App., 181 So.2d 844; Gulf States Utilities Co. v. Norman, La.App., 183 So.2d 421; State, Through Dept. of Highways v. Babineaux, La.App., 189 So.2d 450; and State, Through Dept. of Highways v. Fontenot, La.App., 194 So.2d 404.” 204 So.2d at 315.

The appellee argues that R.S. 48:453, as it existed at the time of the taking, was statutory authority to determine the value of severance damages as of the date of trial:

“The market value is determined as in general expropriation suits but as of the time the estimated compensation was deposited in the registry of the court.
“Damage to the remainder of the property is determined as of the date of the trial.”
“In either case, the defendant has the burden of proving his claim.”

The trial court was clearly in error in accepting appellee’s argument and using it as the basis for its award of severance damages, but was correct in finding that damages were due. State, Department of Highways v. Potter, supra.

The case law has consistently held that damages will be determined by calculating the difference between market value immediately before and immediately after the expropriation. Damages are not fixed until the date of trial because in most cases it is impossible to determine if there will be damages until after the improvements are in place. For example, special benefits may inure to the property as a result of improvements and reduce or even eliminate damages in some cases. In this regard, see State, Department of Highways v. Wells, 308 So.2d 774 (La.1975), where Justice Tate said:

“Although La.R.S. 48:453 provides that, in quick-taking expropriations, severance damages should be determined as of the date of the trial, this provision (in the light of the initial statutory scheme that such damages be determined after construction of the improvement is accepted, La.R.S. 48:451(1), see 26 La.L.Rev. 102-03 (1965)) ‘ * * * was statutorily intended to specify that the damages the remainder suffers should be reduced by special benefits which result to it from the completion of the highway construction, not to deprive the landowner of compensation for damages sustained by his tract because of any general increase in the value of land between the taking and the trial.’ ” 308 So.2d at 776.

Earlier, in State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973), again, Justice Tate, speaking for the court, said:

“Severance damages are ordinarily calculated as the difference between the market value of the remaining property immediately before and immediately after the taking. State, Department of Highways v. Central Realty Investment Company,- 238 La. 965, 117 So.2d 261 (I960).” 284 So.2d at 766.

The facts in Hoyt indicated that the landowner’s two expert appraisers testified that the property had lost 50% to 60% of its highest and best use as a service station property because of the taking. The value of the remainder before the taking was $24,520.00. Justice Tate, in accepting the appraiser’s testimony, said the landowners were entitled to 50% of the value of the remainder, or to $12,260.00. He used the value of the remainder before the taking to determine damages.

Our examination and analysis of the record and the applicable jurisprudence convince us that the following calculations are proper:

Value of whole as of 5/10/72 before
the taking $2,049.00
Value of part taken as of 5/10/72 - 1.127.00
Value of remainder before the taking 922.00
Stipulated value of remainder
immediately after taking - 602.00
Severance Damages $ 320,00
Value of part taken + 1.127.00
Total Compensation due appellee $1,447.00

A deposit of $875.00 was made and withdrawn in this case. This must be deducted from the total compensation awarded, leaving $572.00, plus interest from the date of taking to September 12, 1980, at 7% per annum, and from September 12, 1980, until paid at 10% per annum.

The State also contests the trial court’s award of $850.00 as expert witness fee to Carpenter. He was the only expert witness to testify, and, although we find his reasoning regarding severance damages to be erroneous, the State must concede that it accepted and stipulated to his evaluations, i.e., value of the property before the taking, value of the part taken, and value of the remainder after the taking. The trial court was justified in its award of this fee. The judgment is affirmed as amended herein and costs in the sum of $1,207.75 are taxed to the State.

AFFIRMED, AS AMENDED.

      . Carpenter did not satisfactorily explain this figure. Standing by itself, it is not helpful because it uses current value for the whole property, but uses 1972 values, for the part taken and the remainders. ,

      . No appeal was taken from that portion of the judgment which failed to give appellee recovery for the value of the part taken, so judgment to that extent has become final. However, the State in oral argument requested that we allow $1,127.00 for the value of the part taken in disposing of this case.