author: Judge ROLAND L. BELSOME. TOBIAS, J., LOBRANO, J.,

text:
    In re The EDWARD WISNER DONATION, Honorable Mitchell J. Landrieu, Mayor and Ex Officio Trustee. In re The Edward Wisner Donation, Honorable Mitchell J. Landrieu, Mayor and Ex Officio Trustee.
    Nos. 2014-CA-0027, 2014-CA-0028.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 18, 2014.

      Daniel Lund, John Y. Pearce, Edmond C. Haase’, III, C. Byron Berry, Jr., Montgomery Barnett, L.L.P., New Orleans, LA, Matthew J. Fantaci, Carver Darden Kor-etzky Tessier, Finn Blossman & Areaux, L.L.C., New Orleans, LA, John P. Murrill, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Appellants.
    Sharonda R. Williams, City Attorney, Adam J. Swensek, Assistant City Attorney, Cherrell R. Simms, Senior Chief Deputy City Attorney, New Orleans, LA, for Appellee/The City of New Orleans and Mayor Mitchell J. Landrieu.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO.

      ., As discussed, the trust named four beneficiaries: the City of New Orleans, Tulane University, Charity Hospital, and the Salvation Army.

   Judge ROLAND L. BELSOME.

_[iThis civil appeal hinges upon one major issue: was a donation made by Edward Wisner in 1914 to the City of New Orleans a perpetual trust? This donation has been the subject of decisions on various issues, but none have discussed the history of Edward Wisner. Given that our community has benefitted from his generosity for nearly a hundred years it seems fitting to acknowledge him.

HISTORY

Edward Wisner, a philanthropist, banker and newspaper editor from Athens, Michigan, moved to Louisiana for health reasons and settled in New Orleans in the early 1900s. Initially he was struck by the swamps of Louisiana’s similarity to the low-lying Netherlands, where hard-working farmers had reclaimed vast acreage for cultivation. Over the course of a few years, Mr. Wisner acquired over one million acres of seemingly undesirable marshland along coastal Louisiana, and transformed “waste marshes ... into fruitful fields.” John A. Fox, The Wisner Estates Incorporated: Embracing Nearly a Million Acres of the Richest Land in America, Munder-Thomsen Press, 1917, at 10. As early as 1906, he began to assemble the land by digging canals and removing water by way of a steam [¡.pumping station. Mr. Wisner had a prophetic dream of transforming his community into a sanitary and profitable place with the help of modern engineering. His forethought for pumps and levees nearly 100 years prior to the devastation of Hurricane Katrina was truly insightful. Mr. Wisner’s original vision was to develop the land in order to access its fertile soil for agricultural purposes by emptying the water and converting the once useless acreage to farmland. He claimed that the “soil is the very cream of the earth and contains enough nitrogen ... and other plant foods to produce abundant crops for a thousand years without being exhausted.” Id. at 40. Mr. Wisner was so successful in his entrepreneurial efforts that he gained the moniker, “The Father of Reclamation.” Almost akin to P.T. Barnum, Mr. Wisner had no qualms with using hype in order to promote his dream. He styled himself as a prophet of fortunes, taking out advertisements and promoting the creation of a new Holland where “the wastelands of Louisiana, upon drainage, [were] transformed into some of the most valuable agricultural lands of any region. Cane, rice, corn, cotton, and vegetables of almost every description were in evidence.” Mr. Wisner boldly demonstrated the prolific bounty of his reclaimed lands by sending a 12.5-pound cabbage to The New Orleans Item, touting his farms as a place where crops never fail. A Peep at Paradis, Where Louisiana’s Agricultural Possibilities are Practically Proven and Former Swamp Lands are Shown Easy of Reclamation and Very Valuable, Times-Picayune, Oct. 14,1906, at 9.

The Wisner family was also civic-minded and involved in the community of New Orleans. Although they were recent transplants from the North, the Wisners did not hesitate to become devoted to their new city. Mrs. Wisner was on the board of the Poor Girls’ Haven, and Mr. Wisner was the President of the Louisiana | ^Development League. Their daughter, Elizabeth Wisner, was the first female Dean of the Tulane School of Social Work. Additionally, Mr. Wisner was elected Vice President of the National Drainage Congress and served on the board of directors at the First Unitarian Church of New Orleans. In 1907, he had the foresight to appeal to President Theodore Roosevelt to procure a large colony of storks to be domiciled in Louisiana to eat the crawfish “who are the greatest enemies of [the] levees” protecting this newly reclaimed land. Surprisingly, these birds are not indigenous to Louisiana, but “The Pelican State [became] a kind of stork State, anyhow. Let it hail the bird of Holland and give it a home forever and ever.” Wisner Wants the Stork; He May Appeal to ‘Teddy’, The New Orleans Item, July 7, 1907, at 26. This entrepreneur never missed an opportunity to advertise the potential of his newfound state. In 1909, Mr. Wisner prudently invited another Commander-in-Chief to the city, entertaining President Taft at the St. Charles Hotel and accompanying him to religious services. President at the Unitarian Church, The Daily Picayune, Nov. 1,1909, at 1.

Although he was known as the “Father of Reclamation,” it became clear that Mr. Wisner was so much more than just an innovative real estate developer. He was a pioneer and visionary, who intended on converting the marshland into “the most fertile farming section in the world,” with the ability to support three million people. The Greatest Work in Louisiana, The New Orleans Item, July 26, 1909, at 4. He regarded the land reclamation process as a humanitarian obligation for the benefit of the city, and thought that when “food supplies are in the greatest demand, [the fulfillment of] a patriotic duty is not measured by gold alone.” John A. Fox, The Wisner Estates Incorporated: Embracing Nearly a Million Acres of the Richest Land in America, Munder-Thomsen Press, 1917, at 40.

' RLike many New Orleanians, Mr. Wis-ner had a great love for his city, and desired to fulfill his mission “to make good.” ‘Make Good,’ Slogan of Local Boosters, The New Orleans Item, February 28,1912, at 3. Consequently, in August of 1914, Mr. Wisner formally donated in trust 52,000 acres of marshland located on the most valuable tract in his possession; today part of this is known as Port Four-chon. The donation should not be taken lightly, considering the fact that Mr. Wis-ner was an outsider from the North, and within fifteen years of moving to New Orleans he decided to give a substantial portion of his estate to the city. The land was subsequently put into a 100-year trust for the use of four beneficiaries: the City of New Orleans, the Salvation Army, Charity Hospital, and Tulane University. Mr. Wisner’s benevolent contribution could not have come at a better time, because Charity Hospital was suffering from a budget deficit that would have resulted 'in the closure of several wards but for his generosity. Charity Hospital is in Need of Funds, The New Orleans Item, July 20, 1915, at 11. Predating any pension plans, Mr. Wisner’s insight is once again displayed in the original trust document providing for acreage and convalescent homes for retired firefighters, policemen, and teachers as well as playgrounds for the youth of our city. The stipulations of the Edward Wisner Trust indicate that he intended the city to use the funds for the beautification of New Orleans and for the education, health and recreation of the city residents. Fifty Thousand Acres Wet Lands Donated For City’s Future Needs, Edward Wisner Makes a Princely Gift for Educational and Other Uses, Municipality to Undertake Reclamation, The Daily Picayune, January 19,1912, at 5.

Mr. Wisner suffered from poor health in 1914 and was forced to amputate his leg. That adversity did not daunt his efforts “to realize the dream which will | smake Louisiana the richest farm State in the Union and New Orleans a world metropolis.” Edward Wisner Under the Knife, The Times-Picayune, Aug. 20, 1914, at 8. Shortly thereafter, Mr. Wisner, 55, died of cancer at his home located on the corner of Camp and First Streets. Edward Wisner, The Times-Picayune, Mar. 9, 1915. In the same year as his death, a Category 4 hurricane flooded much of his reclaimed land. At that time, the majority of the land was sold to H.H. Timken of Ohio, who would later become a large shareholder in the Louisiana Land and Exploration Company. Between 1916 and 1925 the reclamation efforts in St. Charles Parish were abandoned. Even if the hurricane had never made landfall, the reclaimed lands would have eventually suffered the same fate, because the cultivation of peat-like soil made it more acidic with each harvest and also compacted the soil, which lowered the land level by approximately four feet, making future farming undesirable.

Mr. Wisner’s statement that “we are still too close to his achievement to measure it truly, but already we have realized that it constitutes the beginning of a separate chapter in the history of Louisiana’s development” was correct as far as the ongoing financial benefit to the city was concerned. Edward Wisner Under the Knife, supra. However,.the pecuniary assistance today is not a result of farming, but royalties from the offshore oil and gas industries. The profitable oil industry of southeastern Louisiana largely originated on Mr. Wisner’s reclaimed land. Today, his legacy is memorialized with a simple fountain located at the park in the West End of New Orleans, which fittingly “has virtually been reclaimed” from Lake Pontchartrain. Edward Wisner Shaft for New Orleans, The Times-Picayune, June 14,1915, at 5.

1 «FACTS

A timeline of the pertinent facts follows.
• August 4, 1914 — Mr. Wisner executed an inter vivos donation, whereby he donated approximately 50,000 acres of land to the City of New Orleans in trust (the trust) for specific charitable purposes.
• March 8,1915 — Mr. Wisner died.
• July 8, 1920 — The Louisiana Legislature enacted Act 167, which retroactively amended the Trust Code to provide that charitable trusts were perpetual, unless the trust instrument contained an express right to “dissolve, abolish, or destroy” the trust.
• December 26, 1928 — Mary Wisner, Mr. Wisner’s widow, and their two daughters, Elizabeth Wisner, and Harriet Wisner Peneguy (the Wisner Ladies), filed suit to annul the 1914 donation in Civil District Court.
• September 17,1929 — The beneficiaries of the trust and the Wisner Ladies came to a compromise. (Compromise)
• April 1, 1930 — The trial court signed a final consent judgment. (Consent Judgment)
—The Consent Judgment settled four major disagreements among the parties: 1) the Wisner Ladies ratified and acknowledged the validity of the 1914 donation and trust; 2) the four original trust beneficiaries recognized the Wisner Ladies, collectively, as an additional beneficiary with a 40% interest in the trust, (the City — 34.8%, Tulane and ■ Charity — 12% each, and Salvation Army-1.2%); 3) the parties-agreed to hold the property in indivisión, foregoing their rights to segregation; and 4) the City Council was to create an Advisory 17Committee known as the “Edward Wisner Donation Advisory Commission,” which would be comprised of five members: the Mayor as chair, and four representatives from each of the beneficiaries.
• March 12, 1931 — The New Orleans City Council created the Edward Wis-ner Donation Advisory Committee (Advisory Committee) by Ordinance 12,883 (Ordinance).
• April 29, 2003 — The current by-laws were signed by Mayor C. Ray Nagin.

PROCEDURAL HISTORY

On December 10, 2012, Mayor Mitchell J. Landrieu, on behalf of the City of New Orleans, filed a summary proceeding regarding whether the Advisory Committee was public or private, and whether he must obtain advice and consent of the Advisory Committee, specifically, when using funds distributed to the City by the trust. On January 14, 2013, the Wisner heirs, direct descendants of the Wisner Ladies, filed a summary application raising these issues, as well as the issues of whether the trust was perpetual, and whether the May- or breached his fiduciary duty as trustee and should be removed. The proceedings were consolidated and cross-motions for summary judgment were filed but not heard or ruled upon.

After a trial on the merits, the court found: 1) the Wisner trust was not perpetual, expiring in August of 2014; 2) the Mayor as trustee is not required to obtain the advice and consent of the trust’s Advisory Committee prior to making |sgrants of money from the City’s beneficial portion of the trust revenue; and 3) the Advisory Committee is a public body which is subject to the Louisiana Open Meetings Law. The trial court further declared the remaining summary judgment issues moot. The Wisner heirs, the Salvation Army, and LSU, as heir to Charity, appealed.

STANDARD OF REVIEW

In reviewing a trial court’s findings of fact, appellate courts employ a “manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The appellate courts review questions of law de novo to determine whether the trial court was legally correct. Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662, p. 9 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 388.

DISCUSSION

The appellants raise four assignments of error: 1) The district court erred in refusing to issue a declaratory judgment that the trust is a perpetual pursuant to Act 167 of 1920; 2) the trial court erred in finding that the Mayor was not required to obtain the advice and consent of the Advisory Committee before distributing funds it received from the trust; 3) the trial court erred in declaring the Advisory Committee to be a public body; and 4) the district court erred in failing to declare that the Mayor has breached his fiduciary duty as trustee and in not ordering his removal and replacement.

Un their first assignment of error, the appellants argue that the trust is perpetual, and the trial court misapplied Act 167 when it found that the trust will expire in August of 2014. In particular, they claim that the trial court erred in finding that the 100-year term included in the trust instrument was an express reservation of Mr. Wisner’s right to “dissolve, abolish, or destroy” the trust under Act 167.

As the Mayor argues, the land was donated to the City in trust for a 100-year term. The trust terms clearly provide that the trust terminates 100 years after its inception, which is August 4, 2014. However, the appellants argue that the exclusionary provision in Act 167, regarding the reservation of the right to “abolish, dissolve, or destroy,” refers to the right to revoke. He explains that under the trust code, a revocation causes the complete failure of the trust, whereas termination (or expiration) causes the trust to accomplish its purpose. Therefore, |10they conclude that since the trust does not contain an express right to revoke (“abolish, dissolve, or destroy”), the trust remains perpetual.

Here, the issue is one of statutory interpretation: whether the legislators contemplated the right to “abolish, dissolve, or destroy” to include the termination or expiration of the trust by its express terms. The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government. Theriot v. Midland Risk Ins. Co., 95-2895, p. 3 (La.5/20/97), 694 So.2d 184,186. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Succession of Boyter, 99-761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128; State v. Piazza, 596 So.2d 817, 819 (La.1992). Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. Boyter, supra; Cat’s Meow, Inc. v. City of New Orleans through Dep’t of Fin., 98-601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198. The Louisiana Supreme Court has often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law. State v. Johnson, 03-2993, p. 12 (La.10/19/04), 884 So.2d 568, 575; Theriot, 95-2895, p. 3, 694 So.2d at 186.

The starting point in the interpretation of any statute is the language of the statute itself. Johnson, 03-2993, p. 11, 884 So.2d at 575; Theriot, 95-2895, p. 3, 694 So.2d at 186. “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.” La. C.C. art. 9; Johnson, 03-2998, p. 12, 884 So.2d at 575. However, “when the language of the law is susceptible of different meanings, it must be interpreted as having the Inmeaning that best conforms to the purpose of the law.” La. C.C. art. 10; Fontenot v. Red-dell Vidrine Water Dist., 02-439, p. 7 (La.1/14/03), 836 So.2d 14, 20. Moreover, “when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.” La. C.C. art. 12.

It is also well established that the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. Johnson, 03-2993, p. 14, 884 So.2d at 576; State v. Campbell, 03-3035, p. 8 (La.7/6/04), 877 So.2d 112, 117. Thus, legislative language will be interpreted on the assumption that the Legislature was aware of existing statutes, well established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view. Johnson, 03-2993, p. 14, 884 So.2d at 576; Campbell, 03-3035, p. 8, 877 So.2d at .117. It is equally well settled under our rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. La. C.C. art. 13; City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund,-05-2548, P. 17 (La.10/1/07), 986 So.2d 1,15.

Dictionaries are a valuable source for determining the “common and approved usage” of words. Gregor v. Argenot Great Cent. Ins. Co., 02-1138, p. 7 (La.5/20/03), 851 So.2d 959, 964. The word “dissolve” means “to officially end (something, such as- a marriage, organization, or agreement); to bring to an end: terminate.” “Abolish” means “to officially end or stop (something, such as aj^law): to end the observance or effect of: annul.” “Destroy”- means “to cause (something) to end or no longer exist: to cause the destruction of (something)[.]” These terms are unambiguous and signify the legislature’s intention to include both the right to revoke (or nullify), and the right to terminate (or end). The appellants’ assumption that the legislature could only have contemplated one of the two terms (termination or revocation) because they have different meanings is fatal. These terms contemplate ending the trust, without specification as to the manner in which the end is brought about, e.g. termination or revocation.

Next, the Salvation Army contends that it was the intent of the legislature to modify trusts that contained a term and make those trusts perpetual, and to afford any other interpretation would make the law meaningless. This assertion is incorrect.

A review of the legislative history reveals that Act 107 was also enacted during the 1920 Legislative Session. Act 107 provided limited terms for trusts, in general; Act 167 specifically covered charitable trusts. Reading Act 107 in conjunction with Act 167 makes it clear that the legislature excluded charitable trusts from the definitive terms established in Act 107, electing to make them perpetual, unless the document explicitly maintained the right to end the trust.

The trust provisions set forth a one-hundred year term for its existence; thus, the trust will end on August 4, 2014. It is obvious that these provisions serve as an | ^express reservation of the right to end the trust for the purposes of Act 167. To find otherwise, despite the inclusion of a termination clause, is nonsensical.

Since the Wisner trust is subject to the exclusion set forth in Act 167, the trust is not perpetual and will end in accordance with its terms. Thus, the trial court was correct in concluding that the trust expires in August of 2014.

In their second assignment of error, the Wisner heirs and Salvation Army allege that the trial court erred in finding that the Mayor was not required to obtain advice and consent of the Advisory Committee in accordance with the express provisions of the Compromise, Consent Judgment, Ordinance, and by-laws. Particularly at issue is the Mayor’s failure to obtain the approval of the Advisory Committee before distributing the City’s share of the trust proceeds to grant recipients.

The Mayor responds that none of the other beneficiaries are required to obtain pre-approval regarding the manner in which they distribute their funds. He further explains that the trial court’s ruling is in congruence with the Compromise, which intended for the Advisory Committee to serve a limited administrative role relative to the trust corpus.

In its judgment, the trial court found that the Advisory Committee’s role was 1) advisory, and 2) limited , to trust matters. Thus, it concluded that the Mayor was not required to seek permission from the Advisory Committee relative to the distribution of trust proceeds allocated to the City. We disagree.

The Compromise was confirmed by the Consent Judgment. The terms of the judgment unambiguously required the creation of the Advisory Committee by City 114Council ordinance, and further stipulated that the Mayor, as Trustee, could not bind the parties without the approval of the majority of the committee members.

Pursuant to the Consent Judgment, the City Council created the Advisory Committee by ordinance. The Ordinance authorized the Advisory Committee to adopt rules and regulations that it deemed advisable. Its functions were the “supervision, direction and administration of all the lands, funds and avails constituting and comprising the Wisner Donation, or the avails and fruits thereof, and to consult with and advise the Mayor of the City of New Orleans in his capacity as Trustee upon all matters pertaining to said trust[.]” The ordinance further articulated that all matters of the trust must be “referred to and handled by” the Advisory Committee.

In accordance with its rule-making authority set forth in the Ordinance, the Advisory Committee established some additional rules. Article I, Section 5 of the current set of by-laws, in particular, established that the Advisory Committee would function to provide advice and consent to the Mayor in relation to grant projects funded with the City’s share of the trust proceeds.

The Mayor now questions the validity and enforceability of these earlier 1 ^agreements and suggests that we ignore the consequences of his predecessors’ acquiescence therein. More specifically, he has implicated that both the Compromise and Consent Judgment, approved by Mayor Walmsley, are invalid. However, such a claim or defense is not appropriate in a summary proceeding. See La. C.C. art. 2029 et seq.; and La. C.C.P. art.2001 et seq. While interesting and curious, an analysis of the language, circumstances, and prevailing case law that surrounded the Compromise and Consent Judgment is beyond the scope of the appeal in this matter.

Despite Mayor Nagin’s decision to accept the authority of the Advisory Committee to enact the pertinent by-law, the Mayor also suggests that the Advisory Committee exceeded its authority because the by-law concerned matters outside of the trust corpus. However, he never specifically requested or received a ruling on the validity of the by-law itself. As a general matter, appellate courts will not consider issues raised for the first time, which were not pleaded in the trial court below and which the trial court has not addressed. Billieson v. City of New Orleans, 09-410, p. 8 (La.App. 4 Cir. 11/12/09), 26 So.3d 796, 801-02. Since the legitimacy of these Mayoral-approved agreements and enactments are not before us; our review is limited to the facts established in the record. Consequently, we must refrain from commenting on the wisdom of Mayors Walmsley and Nagin in connection with the ‘Wisner trust.”

| ii/The testimony and documentation admitted at trial makes it clear that the Mayor must obtain the advice and consent of the Advisory Committee, and may only act on trust matters with a majority vote. The record and the longstanding history of the trust confirm this fact. See California Co. v. City of New Orleans, 60 So.2d 103, 108 (La.App. 1st Cir.1952) (where the Court held that the Mayor was authorized to grant a lease upon advice and approval of the Advisory Committee); and La. Atty. Gen. Op. 1986-0036 (opining that a lease signed by the Mayor, as trustee, without the approval of the Advisory Committee was not valid and binding). While the trial court is correct in its assertion that neither the trust, the Compromise, nor the relevant City Council Ordinance require any beneficiary to obtain pre-approval regarding the distribution of funds received from the trust; it ignored the fact that the 2003 by-laws delegated this function to the Advisory Committee. Moreover, this procedure was observed long before the by-laws were put into place. Thus, by-passing the Advisory Committee’s rule with respect to this function constituted a breach of the by-laws.

Based on the facts evident in the record, we must find that the trial court was clearly wrong in finding that the Mayor was not obligated to obtain the advice and approval from the Advisory Committee before allocating the City’s share of the trust proceeds to grant recipients pursuant to Article I, Section 5 of the 2003 bylaws.

In their third assignment of error, the Wisner heirs and Salvation Army claim that the trial court erred in declaring the Advisory Committee to be a public body subject to the Open Meetings Law. The appellants cite to the trial court’s failure to consider the two-part test set forth in Louisiana High School Athletic Ass’n, Inc. v. State, 12-1471 (La.1/29/13), 107 So.3d 583 (referred to as the 117LHSAA decision), and conclude that the Advisory Committee does not fall within the definition of “public body.”

Pursuant to the Open Meetings Law, La. R.S. 42:13(A)(2) states:

“Public body” means village, town, and city governing authorities; parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.

In LHSAA, the Louisiana Supreme Court overruled Spain v. Louisiana High School Athletic Association, 398 So.2d 1386 (La.1981), which found that the LHSAA was a public body for the purposes of the Open Meetings Law. The LHSAA Court focused on the plain reading of the words defining “public body,” and explained that Black’s Law Dictionary defined “committee” as a “subordinate group which a deliberative assembly or other organization refers business for consideration, investigation, oversight or action.” Thus the Court concluded that the phrase “committee or subcommittee” of any of the public bodies refers to “a committee formed by the public body itself.”

After considering that there was no evidence to suggest that the LHSAA was formed as a committee of a public body; no public body ever referred business to the LHSAA for its consideration, investigation, oversight or action; and the LHSAA, a non-profit corporation, had separated itself from any public entities, the Supreme Court overruled Spain and found that it was not a public body as defined in the Open Meetings Law.

| iSHere, the exact opposite is true. The City Council, an indisputable public body, formed the Advisory Committee, and referred to it the authority to control, “all matters relating to said trust.” Among the functions granted to the Advisory Committee by the City Council were “supervision, direction, and administration[.]” Given the plain language in Open Meetings Law and the LHSAA decision, it is glaringly obvious that the Advisory Committee meets the definition of a public body. Therefore, the trial court was correct in holding that the Advisory Committee was subject to the Open Meetings Law.

In their final assignment of error, the Wisner heirs and Salvation Army assert that the district court erred in failing to find that the Mayor has breached his fiduciary duty as trustee and order his removal and replacement. In particular, they contend that the Mayor usurped the advice and consent functions of the Advisory Committee when he delegated control over the grant making process to his appointees. They also contend that the Mayor’s collateral attack on the validity of Consent Judgment demonstrates his hostility toward the beneficiaries he was obligated to protect.

|! ^Louisiana law provides that the trustee has the duty to administer the trust in the interest of all beneficiaries impartially. La. R.S. 9:2082. The removal of a trustee is governed by La. R.S. 9:1789, which states in pertinent part: “[a] Trustee shall be removed in accordance with the provisions of the Trust instrument or by the proper court for sufficient cause” (emphasis added). However, it takes more than just technical violations of the Trust Code or mere hostility or animosity between the Trustee and beneficiary to establish sufficient cause for removal. Fer-tel v. Brooks, 02-846, p. 10 (La.App. 4 Cir. 9/25/02), 832 So.2d 297, 304 (citation omitted); See also, In Re Mashburn Marital Trusts, 06-741 (La.App. 1 Cir. 12/28/06), 951 So.2d 1136.

In the instant case, the record reflects that the Mayor side-stepped the Advisory Committee in the grant making process, and distributed the City’s proceeds from the trust to grant recipients without first obtaining the advice and consent of the Advisory Committee. As already discussed, this is a breach of the by-laws, rather than the trust or Consent Judgment. Besides, the appellants overlook the fact that the Mayor, representing the City, serves dual functions with respect to the trust: first, as Trustee; second, as a beneficiary. The proceeds of the trust are distributed to the Mayor, as the Chief Executive Officer of the beneficiary of the trust, not as Trustee. Thus, the Mayor, as a beneficiary, received the proceeds from the trust and committed the breach. The Mayor, as Trustee, is in no way implicated in this breach.

|2nThe record is void of any evidence to suggest that the Mayor, as Trustee, misappropriated any assets of the trust, or otherwise breached his duties as Trustee. Contentious disagreements over complex matters of the trust, which have been the subject of litigation since its inception, are not a sufficient cause for removal of the Mayor, as Trustee. See Fertel, supra. Considering the lack of evidence in the record, we cannot say that the trial court was clearly wrong in refusing to order removal of the Mayor as Trustee for breaching his fiduciary duties.

In light of the foregoing discussion, the trial court’s ruling that the Mayor was not required to obtain the approval of the Advisory Committee before distributing proceeds of the trust to grant recipients is reversed. The remainder of the trial court’s ruling is affirmed.

AFFIRMED IN PART, REVERSED IN PART

APPENDIX A

Edward and Elizabeth Wisner Papers. [Photograph of Edward Wisner]. Manuscripts Collection 10í7, Louisiana

Research Collection, Howard-Tilton Memorial Library, Tulane University, New Orleans, Louisiana.

TOBIAS, J., concurs in part and dissents in part.

LOBRANO, J., concurs in part and dissents in part with reasons.

TOBIAS, J.,

concurs in part and dissents in part.

hi respectfully concur in part and dissent in part for the reasons assigned by Judge Lobrano with one slight difference addressed below.

I find that in view of the 17 September 1929 compromise and 1 April 1930 judgment, the Mayor must seek and listen to the advice of the Advisory Committee, but need not follow that committee’s advice. The 2003 (“Nagin”) by-law that does not appear to have been blessed by statute or ordinance did nothing, in my view, to overrule or supersede specific ordinances, 12such as Sections 2-158, 2-159, and 70-41 of the New Orleans city ordinances. I thus do not find that the Mayor need follow the advice of the Advisory Committee.

LOBRANO, J.,

concurs in part and dissents in part with reasons.

hi concur in the majority opinion insofar as it affirms the trial court’s judgment: 1) holding that the Edward Wisner Donation is not a perpetual trust and will in expire in August 2014, based on its finding that the 100-year term included in the trust instrument was a reservation of Mr. Wis-ner’s right “to dissolve, abolish, or destroy” the trust under Act 167 of 1920; and 2) declaring that the Edward Wisner Donation Advisory Committee (“Advisory Committee”) is a public entity subject to the Louisiana Open Meetings Law. I also • concur in the majority opinion insofar it affirms the trial court’s holding that the Mayor did not breach his fiduciary duty as trustee and should not be removed as trustee.

However, I dissent from the majority opinion insofar as it reverses the trial court’s ruling that the Mayor was not required to obtain the approval of the Edward Wisner Donation Advisory Committee before distributing the trust proceeds 12allocated to the City. Unlike the majority, I agree with the trial court’s finding that the Advisory Committee’s role is advisory and, thus, the Mayor was not required to seek permission from the Advisory Committee regarding the distribution of trust proceeds allocated to the City.

In summary, I would affirm the trial court’s October 11, 2013 judgment in its entirety.

      . See Appendix A.

      . The land was located in three parishes: La-Fourche (Port Fourchon), Jefferson, and St. John. The lands in Port Fourchon are leased to various companies involved in deep water oil exploration projects, making the land a valuable asset. In 2012, it produced nearly $8 million dollars in revenue.

      . Act 167 provided, in relevant part:
      Whenever one or more persons have donated, subscribed, or contributed to a sum of money or other property and have dedicated it, in a manner, to some charitable, benevolent, or eleemosynary use, and have not expressly reserved in the dedication the right to dissolve, abolish, or destroy the trust or dedication made, the trust or dedication shall continue, forever, so long as there is a competent person or institution to administer it (emphasis supplied).

      .Notably, the terminology used in the Ordinance differs from that in the Consent Judgment Specifically, the Consent Judgment provides for the creation of the "Edward Wisner Advisory Commission,” and the Ordinance created the "Edward Wisner Donation Advisory Committee” (emphasis supplied). This distinction is inconsequential since the members, powers and functions of the Committee were the same as those set forth for the Commission.

      . Wendell Cook, Jr., Richard Peneguy, Jr., Edward Peneguy, Jr., and Mark Peneguy.

      . Tulane University did not file an appeal.

      . As discussed, Act 167 of 1920 applied retroactively and made charitable trusts perpetual, unless the right to abolish, dissolve, or destroy it was expressly reserved within the instrument.

      . The trust contains the following provisions:
      [A]ppearer declared that he does, by these presents, donate, assign, set over, transfer, abandon, and deliver, irrevocably and forever, with all legal-warranties and with full subro-gation and substitution in and to ...
      This donation is made to the City of New Orleans for the benefit and use, either through the revenue or ultimate sale of the property hereinabove described and hereby conveyed, of the following beneficiaries ... The trusteeship herein provided for shall exist for the term and period of one hundred (100) years from the date hereof, and this donation is made upon the condition that the said City of New Orleans shall in no way alienate any
      part or portion of the lands herein conveyed until one hundred (100) years from the date hereof, except as hereinafter provided for (emphasis supplied).
      After expiration of the said one hundred (100) years, the said City of New Orleans shall be free to dispose of any or all of said lands in such manner as the City Government may direct, but employing the proceeds thereof for the purposes above set forth only.

      . The distinction between termination and revocation was noted in the 1964 Comments to tire Louisiana Trust Code; however, this was 50 years after the trust was executed, and 44 years after the enactment of Act 167.

      . Dissolve Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/ dictionary/dissolve (last visited July 9, 2014).

      . Abolish Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/ abolish (last visited July 9, 2014).

      . Destroy Definition, MERRIAM-WEBSTER http://www.merriam-webster.com/dictionary/ destroy (last visited July 9, 2014).

      . In particular, a trust would expire ten years after the donor's death or ten years after the beneficiary attained the age of majority.

      . Although the first assignment of error is dispositive of the issue regarding the termination of the trust, we address the remaining assignments as they may pertain to its dissolution.

      . The Consent Judgment provides the criteria by which the Commission Council (City Council) was to create an advisory committee, composed of five members, to be known as the "Edward Wisner Donation Advisory Commission.” The Consent Judgment states in relevant part: “the Mayor of the City of New Orleans, with the approval of the Commission Council (or its successor body), may act as such Trustee upon the advice and with the consent of the majority of said Commissioners, and such action, so authorized, shall be binding on all parties hereto.” Reference to obtaining the advice and consent of "said Commissioners” clearly signifies the members of the Advisory Commission (or Committee) not the City Council. Any other interpretation would render the language in the Consent Judgment and subsequent Ordinance meaningless.

      . As required by the Ordinance, the 2003 bylaws were adopted by a majority vote of the members of the Advisory Committee and signed by Mayor C. Ray Nagin.

      . Article I, Section 5 of the 2003 by-laws stated that the Advisory Committee would "provid[e] advice and consent to the Mayor in respect to funding of projects with moneys received from the Donation by the City of New Orleans as beneficiary for the uses and purposes of municipal, charitable, and educational purposes within the city.”

      .Instead, the City focused on the provisions set forth in the Compromise and Ordinance, and disregarded the pertinent by-law. As discussed, the Compromise and Ordinance require the approval of the Advisory Committee. The Ordinance further delegates rule-making authority on trust matters to the Advisory Committee. Thus, it is broad enough to encompass the relevant bylaw. Since the authority of the Advisory Committee to pass the by-law was never challenged, and there is no trial court ruling regarding its enforceability, the issue is not properly before this Court.

      . The appellants argue that in creating the Advisory Committee, the City Council was not acting on its own initiative and was merely performing a ministerial duty in obedience of the consent judgment. However, motivations concerning the formation of the ordinance are irrelevant to our analysis. The fact that the parties to the judgment consented to the creation of the Advisory Committee to oversee the trust, does not serve to undermine its identity as a public body. In addition, it is extremely problematic to conceive that a public body such as the City Council could circumvent the Open Meetings Law by creating a non-public body to oversee public matters.
      They also cite to California Co. v. City of New Orleans, 60 So.2d 103 (La.App. 1st Cir. 1952), which is inapposite as it did not involve an issue with the Open Meetings Law.

      . The trial court did not explicitly rule on this issue in its judgment; therefore, it is deemed to be a tacit denial of the claim. See VaSalle v. Wal-Mart Stores, Inc., 01-462, p. 8 (La. 11/28/01), 801 So.2d 331, 337 (where the Louisiana Supreme Court held when the trial court fails to rule on a demand raised by the pleadings, the silence in the judgment is deemed a rejection of the demand).

      . It is indeed puzzling why the then Mayor would have ever entered into the compromise that was blessed by the judgment in view of the trust instrument. I do not see any case or controversy that existed at the time that would have given rise to a bona fide cause of action. At the time of the establishment of the trust, Mr. Wisner was head and master of the community with full statutory authority to make a donation of community assets without consent of his spouse and establish the trust.

      . I do not understand what a "by-law” is in the context of trust law. If it is a contract, I am not sure how such fits into the overall scheme of a trust for public purposes because the duty of a trustee is to the beneficiaries first and foremost. It is inappropriate for a trustee to contract away the trustee's powers in a way that infringes upon the trustee's duties.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    William Henry SHANE v. The PARISH OF JEFFERSON, State of Louisiana, and the Jefferson Parish Economic Development Commission.
    No. 13-CA-590.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Kyle Schonekas, Patrick S. McGoey, Andrea V. Timpa, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Loretta G. Mince Alysson L. Mills, Attorneys at Law, New Orleans, Louisiana, for Intervenor/Appellee.
    Kenneth B. Krobert, Robin Richmond Klibert, Assistant Parish Attorneys, Hara-han, Louisiana, for Defendant/Appellee.
    William D. Aaron, Jr., Dewayne L. Williams, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee-2nd Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

laThe parties appeal the district court’s judgment, granting a preliminary injunction for thirty days for Jefferson Parish to comply with the production and redaction of e-mails pursuant to a public records request. For the reasons that follow, we reverse the judgment of the district court and grant Shane’s petition for a preliminary injunction.

FACTS & PROCEDURAL HISTORY

The Parties

William Henry Shane (“Shane”) is a Jefferson Parish businessman and community activist. Shane is a member of the Jefferson Business Council (“JBC”) and the Committee for a Better Jefferson (“CBJ”). The JBC and CBJ are invitation only, private, non-profit organizations made up of business owners and executives committed to improving the economic well-being and quality of life in Jefferson Parish. Shane is a private citizen who participated in the exchange of e-mails concerning political activity.

The Jefferson Parish Economic Development Commission (“JEDCO”) is an independent, political subdivision of the State of Louisiana. Therefore, JEDCO’s ^authority is derived from state law. La. R.S. 34:2021. JEDCO’s stated mission is to attract, grow, and create new business opportunities in Jefferson Parish. JED-CO’s deputy director and custodian of records is Dottie Stephenson.

The former Executive Director of JED-CO is Lucien Gunter (“Gunter”). Gunter is a member of JBC and CBJ. It is undisputed by the parties that Gunter sent and received e-mails concerning political activity (ie., the Jefferson Parish School Board elections in 2010) on his JEDCO e-mail account that are the subject of the public records request in this litigation.

The Times-Picayune and its reporter, Drew Broach, (collectively “Times-Picayune ”) issued several public records requests to JEDCO seeking Gunter’s e-mails as described in the Postlethwaite & Net-terville (“Postlethwaite”) audit report. JEDCO declined to produce the e-mails. The Times-Picayune then issued a public records request to Jefferson Parish (“the Parish”) seeking production of the e-mails based on its understanding that the Parish had possession of copies of the e-mails pursuant to an internal audit of JEDCO performed by Jefferson Parish Internal Auditor, Thomas Fikes (“Fikes”).

Legislative audit of JEDCO

On June 6, 2012, Postlethwaite issued a financial audit report of JEDCO for the year ending December 31, 2011. In the report, Postlethwaite noted that it had been made aware of “de minimus use of JEDCO’s e-mail system” by “certain JED-CO employees” engaging in political activities during the year ending December 81, 2010. Postlethwaite noted that “the de minimus use of e-mails may | snot comply with La. R.S. 18:1465,” which provides that public funds shall not be used to urge any elector to vote for or against any candidate.

The Parish’s internal audit of JEDCO

Subsequent to the Postlethwaite audit and at the request of the Jefferson Parish Council, Fikes conducted an audit of JED-CO. JEDCO provided a copy of the emails to Fikes for his investigation. Fikes did not suggest that any public funds were used by Gunter in generating or receiving the e-mails, but questioned whether Gun-ter violated ethical rules. Fikes recommended that JEDCO conduct an investigation concerning the e-mails to determine if the matter should be referred to the Louisiana Board of Ethics. In response, JED-CO stated that it did not take a position in any political race and believed that Gunter had' sent and received the e-mails as a “private citizen” and not as a “public servant.”

Public records request to JEDCO

On October 26, 2012, the Times-Picayune made a public records request to JEDCO seeking all “political e-mails.” A revised request was sent to JEDCO seeking “all e-mails that were referenced by Postlethwaite & Netterville.” JEDCO sought the Parish’s assistance in responding, but was informed by the Parish that it could not assist JEDCO. JEDCO informed the Times-Picayune that the Parish could not assist in the response and that JEDCO would need to retain legal counsel. On advice of legal counsel, JED-CO, through its custodian of records, declined to release the e-mails on the grounds that they were not public records and/or their disclosure would violate the Constitutional right to privacy of the private citizens named in the e-mails. The Times-Picayune sent a revised request offering to allow |f,JEDCO to redact the names of the “senders” and “recipients” of the e-mails, as long as they were not JED-CO employees. JEDCO again declined to produce the e-mails. The Times-Picayune did not institute proceedings to enforce disclosure.

Public records request to the Parish

Subsequent to JEDCO’s denial, the Times-Picayune issued a public records request to the Parish seeking the e-mails, but did not offer to accept any redactions as it had with JEDCO. In the request, the Times-Picayune stated “[i]t is my understanding that copies of these e-mails are now in the custody of Tommy Fikes, Jefferson Parish internal auditor.” The Parish directed its law department to collect all copies of the e-mails from Fikes and review them. The Parish determined that the e-mails were public records, subject to disclosure, under the Public Records Law. The Parish then advised all known interested parties that it intended to fulfill the public records request.

District court hearing

Shane filed a petition for a temporary restraining order, a preliminary injunction, and a permanent injunction seeking to prohibit JEDCO and the Parish from disclosing the e-mails. A temporary restraining order was granted on February 1, 2018. The Times-Picayune and Broach intervened and by amended petition, Shane added them as defendants. A hearing was held on February 19, 2013, on Shane’s request for a preliminary injunction. The parties stipulated to the affidavits from Gunter and JEDCO’s custodian of records, Dottie Stephenson, and to the introduction of several exhibits. The district court heard testimony from Shane and Broach. After the hearing, the district court found that while the e-mails were private, they became public records as a result of Fikes’ audit. The district court further found that the Parish was a legal custodian of the emails. The district court issued a judgment granting a preliminary injunction for thirty days to |7enable the Parish to comply with the. production and ordered redaction of the names of private citizens in the e-mails. Shane filed a motion for suspen-sive appeal and stay; JEDCO filed a motion for devolutive appeal; and the Parish and the Times-Picayune each filed an Answer to this appeal.

In this appeal, Shane and JEDCO contend that the district court’s judgment should be overturned and the Parish should be enjoined from producing the emails to the Times-Picayune. Shane and JEDCO claim that while the trial court correctly determined that the e-mails were private and did not concern JEDCO business, it incorrectly concluded that these private e-mails were converted into public records when Jefferson Parish’s internal auditor reviewed copies of them. Both claim that the Parish is not the custodian of JEDCO’s e-mails,, and therefore, their release is not authorized by Louisiana’s Public Records Law, and that the district court incorrectly concluded that the Parish became a custodian of the e-mails when its internal auditor reviewed copies of them. Shane and JEDCO further claim that if the district court’s judgment is not overturned, it will have a chilling effect on the privacy rights of public employees and private citizens who communicate with them via e-mail. They challenge the Constitutionality of releasing the names or the content of private e-mails as public records.

The Parish and the Times-Picayune filed Answers to the above appeals. Both contend that the district court erred by ordering the Parish to redact the identities of all persons reasonably believed to be private citizens. The Parish and the Times-Picayune contend that the district court was correct in finding that the emails were public records and that the Parish is a custodian of those e-mails.

J^PUBLIC RECORDS LAW

Article XII, Section 3 of the Louisiana Constitution provides that “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” In 'Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984), the Louisiana Supreme Court held:

The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s Constitutional rights.

Louisiana’s Public Records Law codifies and guarantees the Constitutional right of the public to access and examine public records. La. R.S. 44:1 et seq. La. R.S. 44:31B(1) provides that “any person of the age of majority may inspect, copy, or reproduce any public record.” The custodian shall present any public record to any person of the age of majority who so requests. La. R.S. 44:32A. It is the custodian’s burden to prove that a public record is not subject to inspection, copying, or reproduction. La. R.S. 44:31B(3).

La. R.S. 44:lA(2)(a) broadly defines “public records” as follows:

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristic, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body ..., except as otherwise provided in this Chapter or the Constitution of Louisiana. (Emphasis added).

|flThe Public Records Law was intended to implement the inherent right of the public to be reasonably informed as to the manner, basis, and reasons upon which governmental affairs are conducted. The statutes providing for the examination of public records must be liberally interpreted to extend rather than restrict access to public records. Gannett River States Publishing Corp. v. Monroe City School Bd., 44,231 (La.App. 2 Cir. 4/8/09), 8 So.3d 833, 835, writ denied, 09-1029 (La.6/19/09), 10 So.3d 745. The Louisiana Supreme Court held that the Public Records Law, similar to the Constitutional provision, should be construed liberally in favor of access to public records and any doubt must be resolved in favor of the public’s right to access. Landis v. Moreau, 00-1157 (La.2/21/01), 779 So.2d 691, 694-695.

Any exemption to the Public Records Law is in derogation of the public’s right to be reasonably informed and must be narrowly interpreted. East Bank Consolidated Special Service Fire Protection District v. Crossen, 04-838 (La.App. 5 Cir. 12/28/04), 892 So.2d 666, 669, unit denied, 05-0212 (La.4/1/05), 897 So.2d 608; Times Picayune Pub. Corp. v. Board of Sup’rs of Louisiana State Univ., 02-2551 (La.App. 1 Cir. 5/9/03), 845 So.2d 599, 605, unit denied, 03-1589 (La.9/5/03), 852 So.2d 1044. All exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in this Chapter or the Constitution of Louisiana. La. R.S. 44:4.1; Angelo lafrate Const, LLC v. State, DOTD, 03-0892 (La.App. 1 Cir. 5/14/04), 879 So.2d 250, 254, writ denied, 04-1442 (La.9/24/04), 882 So.2d 1131.

Any person who has been denied the right to inspect or copy a public record under the provisions of the Public Records Law may institute proceedings for the | ^issuance of a writ of mandamus, injunc-tive or declaratory relief, attorney’s fees, costs, and damages. La. R.S. 44:35A.

The Constitutional right of access, however, is not unlimited, even without a statute exempting certain documents from public review. Article I, Section 5 of the Louisiana Constitution provides in part, that “[ejvery person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” (Emphasis added.) Thus, the right to privacy protects certain documents and information from unreasonable disclosure.

In DeSalvo v. State, 624 So.2d 897, 900 (La.1993), cert, denied, 510 U.S. 1117, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994), the Louisiana Supreme Court defined the right of privacy as “the right to be ‘let alone,’ ... and to be free from ‘unnecessary public scrutiny.’ ” The protection afforded by Louisiana Constitution, Art. I, Sec. 5, has prevailed over the public’s right to know and has protected certain documents and information from disclosure. Copeland v. Copeland, 07-0177 (La.10/16/07), 966 So.2d 1040, 1046 (citing Bester v. Louisiana Supreme Court Committee on Bar Admissions, 00-1360 (La.2/21/01), 779 So.2d 715, 720). In defining the limits of the right to privacy, the Louisiana Supreme Court held that “the right of privacy is not absolute; it is qualified by the rights of others ... The right of privacy is also limited by society’s right to be informed about legitimate subjects of public interest.” Plaquemines Parish Com’n Council v. Delta Development Co., Inc., 472 So.2d 560, 567-568 (La.1985) (citing Parish National Bank v. Lane, 397 So.2d 1282, 1286 (La.1981)). In Lane, the Louisiana Supreme Court determined that “[tjhe right of privacy protects varied interests from [ ninvasion. Among the interests protected is the individual’s right to be free from unreasonable intrusion into his seclusion or solitude, or into his private affairs.”

Article I, Section 5 of the Louisiana Constitution applies only where one has a reasonable expectation of privacy in the matter sought to be protected. Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So.2d 562, 566 (La.1997). The test for determining whether one has a reasonable expectation of privacy which is Constitutionally protected “is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable.” Id. (citing State v. Ragsdale, 381 So.2d 492, 497 (La.1980)); Angelo Iajrate Const., L.L.C., 879 So.2d at 255.

When a request for public records is at issue, the custodian or the individual claiming the privacy right must prove that there is a reasonable expectation of privacy against disclosure of the information to a person entitled to access the public information. If, and only if, a reasonable expectation of privacy is found, the court must weigh or balance the public records disclosure interest against the privacy interest. Beckett v. Serpas, 12-1349 (La.App. 4 Cir. 3/20/13), 112 So.3d 348, 352; Crossen, supra at 670; Angelo Iafrate Const., L.L.C., 879 So.2d at 255 (citing Webb v. City of Shreveport, 371 So.2d 316, 319 (La.App. 2 Cir. 5/4/79), writ denied, 374 So.2d 657 (La.1979)).

DISCUSSION

This proceeding concerns e-mails exchanged between private citizens and former JEDCO employee, Lucien Gunter, regarding political activity, i.e., the Jefferson Parish School Board elections in 2010. The e-mails were located on Gunter’s JEDCO e-mail account and are the subject of the public records request. 112This issue is res nova, as there is no Louisiana case addressing the question of whether e-mails under these circumstances are public records.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue. The party must also make a prima facie showing that he will prevail on the merits of the case. Yur-Mar, LLC v. Jefferson Parish Council, 11-669 (La.App. 5 Cir. 3/13/12), 90. So.3d 1137, 1139. La. C.C.P. art. 3601 el seq.

A petitioner is entitled to injunctive relief without the requisite showing of irreparable injury, however, when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a violation of a Constitutional right, or a direct violation of a prohibitory law. Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597, 599.

E-mails

The Public Records Law does not specifically address whether e-mails are included in the definition of public records, or whether e-mails stored on a public computer server are public records. La. R.S. 44:lA(2)(a). For these e-mails to fall within the Public Records Law, it would have to be shown that they were “used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of’ JEDCO’s business. These emails clearly were not used or prepared for JEDCO’s use or performance of its business so as to be fall within the definition of public records.

It is undisputed that the e-mails generated and received by Gunter at his JEDCO e-mail address were maintained on computer equipment owned and controlled by JEDCO. Shane testified that the e-mails were private communications between private individuals about political activity, i.e., the Jefferson Parish School Board elections in 2010. Shane testified that he and |isseveral other businessmen, including some members from CBJ and JBC, decided to take an active role in the 2010 school board elections. Shane further testified that he did not realize that his e-mails were sent to Gunter’s JEDCO e-mail address because Gunter’s name, not his e-mail address, is all that is displayed when Shane sends Gunter an e-mail. Shane also testified that he was aware that JEDCO could not engage in political activities, but he did not believe that there was any such prohibition as to Gunter individually. The e-mails, he said, were strictly between private citizens concerning private political activities and did not have anything to do with the conduct of JED-CO’s business.

Gunter, through his affidavit, stated that the e-mails were private communications and did not have any relation to JEDCO’s business. In an affidavit submitted by JEDCO’s custodian of records, Ms. Stephenson stated that JEDCO did not engage in any political activity.

We agree with the district court’s finding that the e-mails were purely private communications between private citizens concerning private political activity, and that the e-mails had nothing to do with the conduct of JEDCO business. We therefore conclude that the e-mails, even giving a liberal and inclusive construction to the provisions of the Public Records Law, are purely private and do not fall within the definition of “public records” under La. R.S.44:lA(2)(a). The public’s right to access extends only to “public records,” and the e-mails in this case are unequivocally private in nature.

Further, the fact that these writings were in an e-mail format generated by a computer as opposed to other equipment is of no consequence or significance when the determination of a public record is based on a content-driven analysis. Here, the content of the e-mails had nothing to do with the business of JEDCO and are not public records.

_J¿¿Custodian of e-mails

La. R.S. 44:31A also provides that it is the responsibility and duty of the custodian to provide access to public records. A custodian shall present any public record to any person of the age of majority who so requests. La. R.S. 44:S2A. The burden of proving that a public record is not subject to inspection, copying, or reproduction is upon the custodian. La. R.S. 44:31B(3).

Jefferson Parish Code of Ordinances, Section 2-151, designates the custodian of records for JEDCO. It provides:

(a) The department of law shall administer. and be responsible for fulfilling all requests for public records in accordance with applicable federal, state and local laws and regulations.
, (b) Notwithstanding the above, the ... Jefferson Parish Economic Development and Port District (JEDCO), ... shall administer and be responsible for fulfilling all requests for public records ...”
(1) All requests for public records shall be administered by the custodian of records for the entity as defined by La. R.S. 44:l(a)(3).

Through the unequivocal language of Section 2-151, the Parish governing authority, the Jefferson Parish Council, delegated the Parish’s authority to administer and fulfill public records requests to JED-CO and its custodian of records. Section 2-151 clearly establishes that JEDCO, not the Parish, was assigned by the Council as the sole custodian of records for JEDCO’s documents. It is undisputed that the emails were located on JEDCO’s computer server. Therefore, the custodian is Ms. Stephenson, JEDCO’s custodian of records.

The parties do not dispute that JEDCO is a custodian of the e-mails. The Parish and the Times-Picayune contend, and the district court agreed, that the Parish was also a custodian of the e-mails through the internal audit authorized -by 1 isthe Parish. Shane and JEDCO argue that review of the e-mails by the internal auditor did not transfer the e-mails to the custody and control of the Parish.

La. R.S. 34:2021B provides that “[t]he Jefferson Parish Council shall have control over and the responsibility for the functions, management, affairs, operation, and administration of said district and may exercise such powers as are necessary to govern such functions, management, affairs, operation, and administration.” Pursuant to this authority, the Jefferson Parish Council authorized its internal auditor to conduct an audit of JEDCO. Furthermore, Jefferson Parish Code of Ordinance, Section 2-162.2(3) provides that the internal auditor is charged with “[p]erforming financial and operational audits and special assignments including the review and evaluation of controls, systems, procedures, contract monitoring and compliance....”

The district court found that since the emails were used in the internal audit, the e-mails were “used to perform a function conducted by order of a public body,” ie., the Jefferson Parish Council, and therefore the e-mails were public records. The district court further found that the emails were in the custody and control of the Parish pursuant to the internal audit and that the Parish was a “proper custodian.”

We conclude that the district court’s reasoning is incorrect. The Jefferson Parish Council was clearly authorized to order the internal audit. However, the Parish failed to establish that it was a “proper custodian” of the records simply because the internal auditor obtained copies of the e-mails for his investigation. Physical possession of a record is not synonymous with the custody or control of it. Kyle v. Perrilloux, 02-1816 (La.App. 1 Cir. 11/7/03), 868 So.2d 27; Alliance for Affordable Energy v. Frick, 96-1763 (La.App. 4 Cir. 5/28/97), 695 So.2d 1126, 1132. Transfer of physical possession by a custodian to another does not result in |1fithe loss of control or status as a custodian. Frick, 695 So.2d at 1133; Times-Picayune Pub. Co. v. Johnson, 94-0790 (La.App. 4 Cir. 10/3/94), 645 So.2d 1174, 1176. The transfer of records for a specific purpose, whether originals or copies, whether by hard copies or electronically, does not constitute a loss of control of the records, nor of the responsibilities or status as custodian.

The Jefferson Parish Code of Ordinances, Section 2-151(b), specifically and unambiguously assigned the authority to administer and to be responsible for public records requests to JEDCO and to JED-CO’s custodian of records. The Parish did not provide for any exceptions or exemptions to this ordinance that would allow the Parish to become a custodian of the records of JEDCO. Accordingly, under the clear language of the ordinance, JEDCO is the sole custodian of records for the emails. The internal auditor’s review, use, or physical possession of the e-mails in his investigation did not transform the Parish into a custodian of the records. Furthermore, the Parish failed to provide sufficient evidence to establish that it was, in fact, the custodian of the records subject to the internal audit.

Because the Parish is not a custodian of the e-mails, it is not authorized by the Public Records Law to release the e-mails in contradiction to the determination by JEDCO that the e-mails are not public records. See In re: Matter Under Investigation, 07-1853 (La.7/1/09), 15 So.3d 972, 981. Accordingly, we conclude that the district court erred in finding the Parish was a custodian and in refusing to grant to Shane a preliminary injunction against their release.

Right to Privacy

Shane and JEDCO argue that even if the e-mails are considered public records, Shane has Constitutionally protected rights of privacy and of freedom of | ^association which protect citizens from government intrusion into private matters and outweigh the need for disclosure of the private e-mails.

Shane testified that he has known Gun-ter for approximately 30 years, and that he sent the e-mails to Gunter in his individual capacity as a fellow member of CBJ and JBC. He testified that he regularly communicates with individual members of CBJ and JBC through e-mails and considers the e-mails purely private. Shane further testified that the membership list of CBJ and JBC are private and not disclosed to the public. He testified that individuals who exchanged e-mails had done so as individual private citizens who were interested in supporting certain candidates, and not as an endorsement from JEDCO. Shane testified that the support given to certain candidates was strictly personal and by those individuals, and that he believed all of the communications sent to those involved were private. Further, Shane was unaware that the e-mails were sent to Gunter on his JEDCO account because Gunter’s name and not his e-mail address were displayed on the address line.

Shane further testified that he was not aware that there was any prohibition against Gunter personally engaging in political activities, and he knew JEDCO was prohibited from participating in political activities. Shane testified that the e-mails were personal and private and did not involve any business related to JEDCO.

We conclude that the trial court did not err in finding that Shane, as a private citizen, had a reasonable subjective expectation of privacy. The fact that the e-mails were sent to a large number of individuals involved in political activity does not change Shane’s reasonable subjective expectation of privacy. Shane specifically testified that he believed the recipients of -the e-mails involved in political activity would keep the communication private. He further testified that if one attempts to obtain the e-mails from the other members “[t]hey won’t give it to | iSyou ... they’re private.”' Shane testified that the individuals do not share information with other people.

The United States Supreme Court has repeatedly held that freedom of association is protected by the First Amendment of the United States Constitution. Louisiana Republican Party v. Foster, 96-0314 (La.5/21/96), 674 So.2d 225, 229, citing Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). The protections of the First Amendment are made applicable to the states through the Fourteenth Amendment. Id. The fundamental right of freedom of association protected by the First and Fourteenth Amendments includes the right of persons to engage in partisan political organization. Id. (Citations omitted). There can no longer be any doubt that the right of freedom to associate with others for the common advancement of political beliefs is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments. Id. Furthermore, the right to freedom of association prohibits compelled disclosure of political groups engaged in political activity. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Thus, we find that the district court did not err in finding that Shane had an objective expectation of privacy in pursuing his political activities which society at large would be prepared to recognize as reasonable. Shane’s reasonable subjective and objective expectation of privacy must be weighed against the public’s legitimate right to disclosure.

The Parish and the Times-Picayune contend that in balancing these rights, the district court erred in not favoring non-redacted access to the e-mails. They contend that Gunter used his JEDCO email account to engage in political activities which was a prohibited use of public resources for political purposes, and this alleged misconduct was noted in both audit reports. See La. Const. Art. VII, § 14; La. R.S. 18:1465; La. R.S. 42:116B; Jefferson Parish Ordinance, Section 23-_|17(a).ig Thus, they contend that redaction of names of “private citizens” was improper as they may have violated prohibitory law.

In balancing these conflicting rights, the district court found that since Gunter may have violated state statutes or laws, Gun-ter has lost his right to privacy, and the public has a legitimate right to know about his political activities which are the subject of possible violations of law. The district court further noted however, that the public may not have the right to know who else was associated with that activity if they were private citizens, because the private individuals identified in the documents have a Constitutionally protected right to privacy, as well as to freedom of association, and to engage in political advocacy. The district court found that the emails should be disclosed, but only after the Parish redacts the identities of all persons “reasonably believed to have been private citizens.”

We conclude that in balancing conflicting rights, the district court erred in ordering disclosure of e-mails, notwithstanding redaction of names. The district court found that since Gunter may have violated state statutes or law, he had lost any right to privacy, and further, as a public official the public had a legitimate right to know about Gunter’s political activity.

Shane testified and Gunter, through his affidavit, stated that the e-mails were purely private and had nothing to do with the business of JEDCO. The evidence establishes that a group of individuals, as private citizens (including Gunter) decided to become politically active in the school board elections to affect a change. There is no evidence that the individuals who generated or were recipients of the e-mails were acting on behalf of JEDCO. Also, the record reveals, and the district court found, that there are no pending investigations concerning Gunter’s possible misconduct which might justify seizure of the emails. Furthermore, the |20evidence does not support a finding that Gunter was disciplined in any way for misconduct.

Based on the facts in this case, Shane’s right to privacy, coupled with his right of association, heavily outweighs any desire for disclosure of private e-mails. The right to privacy, which is express in the Louisiana Constitution, extends equally to the content of private e-mail messages as it does to the names of other correspondents. Given this protection, redaction of names does not make an otherwise private communication become a public one.

Accordingly, we find that the district court erred in ordering disclosure of the emails, and erred in refusing to grant the preliminary injunction for which Shane had petitioned. For the reasons stated above, the judgment of the trial court is reversed and the preliminary injunction prayed for by Shane, in the form and substance for which he petitioned, is granted. •

This case is remanded for further proceedings consistent with this opinion.

JUDGMENT REVERSED; PRELIMINARY INJUNCTION GRANTED; CASE REMANDED.

      . La. R.S. 34:2021 provides that JEDCO “is hereby constituted and is declared to be body politic and political subdivision of the state of Louisiana, as defined in Article VI, Section 44 of the Constitution of Louisiana. Pursuant to Article VI, Sections 19 and 21 of the Constitution of Louisiana, ... [and] is hereby granted all of the rights, powers, privileges, and immunities granted to political subdivisions ...”

      .At the time of the public records request, JEDCO's custodian of records was Cynthia Grows.

      . The audit does not conclude or suggest that any public funds were used to send or receive the e-mails.

      . The Jefferson Parish Council is granted authority to conduct an internal audit of JEDCO pursuant to La. R.S. 34:2021B. The Jefferson Parish Council passed Resolution No. 117985 requesting that the Parish’s internal auditor conduct audits of "agencies which regularly receive funds from Jefferson Parish,” including JEDCO.

      . On March 6, 2013, an amended judgment was issued to correct a typographical error.

      . This express right of privacy was added by the Constitutional Convention of 1973, effective January 1, 1975. It does not expressly • exist in the United States Constitution.