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NO. 113-757 DIVISION "A
VERSUS
FILED: JUN 1 ? 2W \
CLERK OF COURT
/S/ALICE PERNICIARO
present, the Court made preliminary findings and reserved ruling on other issues to
allow defendants additional time to provide legal argument via additional briefs.
The briefs were received on June 15, 2009. As the next Hospital Service District
meeting is scheduled for June 17, 2009 a judgment was issued this date.
The testimony heard on June 5, 2009 established that the agenda for the
council meeting was posted in its final form timely under both the Louisiana Open
Meeting Law and the St. Bernard Council Charier. Specifically, the language of
• Tourism Commission
Coastal Zone Advisory Committee
Hospital Service District"
This agenda item was included in the agenda properly posted Friday morning prior
to 11:00 a.m. Accordingly, it complied with the two business days posting
requirement of the St. Bernard Council Charter. It is, further, well over the 24
hour posting requirement of La. R.S. 42:7(b)(l). Accordingly, the Court finds that
as a matter of law the agenda item was properly posted prior to the council
The second issue before the Court was whether the agenda item gave proper
notice to the public that appointments to the Hospital Service District were going
to be made at the council meeting. In the area of public meetings the cases are
uniform in setting forth that the underlying issue is the notice and opportunity for
This requirement is spelled out in Jackson vs. Board of Commissioners for the
Housing Authority of New Orleans. C.A. 7150, 514 So.2d 628 (La. 4lh Cir. 1987).
The purpose of the Open Meeting Law is to allow the public to voice its opinion in
to three boards and commissions, that is not sufficient in light of the actual
intended purpose concerning the Hospital Service District. It is pointed out that
testimony clearly established that the council has a procedure in place which
requires all appointments to boards and commissions to have public input prior to
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the actual consideration and appointment. This obviously provides notice and
opportunity for the public to be engaged in the process. That procedure has not
applied to the Hospital Service District since its creation. It has been treated
differently. This Court does not address what is the proper procedure for
and Cavignac did not feel that the regular appointment process applied to the
Hospital Service District. It is also clear that they had knowledge of the
the meeting. That knowledge appears to have been received as early as Friday.
This information was not shared with other council members or in any way noted
on the agenda item to provide notice to the public. That failure is what renders the
Every case or Attorney General's opinion which addresses this issue is clear lhal
the public has an absolute right to be informed of what public bodies are
contemplating. That does not mean that public bodies cannot address issues as
they arise. However, these exceptions are to be narrowly construed. For an item
to be added to the agenda or to expand the agenda item to consider action not
case where resignations were going to be accepted and appointments made, that
needed to be on the agenda. See Attorney General opinion 90-B-A, wherein the
opinion was rendered that an agenda item must be sufficiently clear so that the
public could ascertain that the removal and reappointment of a Hospital Service
action voidable by the Court if challenged within sixty (60) days. While this is not
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binding upon the Court the reasoning is persuasive, accordingly if appointments
are to be made and this is known, the failure to put this on the notice is voidable
action.
Any person is competent to seek to void any action taken in violation of the
Open Meeting Law. This is a court of complete jurisdiction and the proper venue.
suit being filed. The plaintiffs can proceed as individuals without any requirement
of the council authorizing this action or being made a party. The public has a right
to be protected from decisions made without opportunities for public input. The
public further has the right to know in advance the subject matter upon which
governing bodies will deliberate and vote. Wagner vs. Beauregard Parish Police
Jury. No. 87-154, 525 So.2d 166, (La. 3rd Cir. 1988). The most compelling
reasoning for voidance of this action is found in Hayes vs. Jackson Parish School
Board, No. 24,4450C.A., 603 So.2d 274 (La. 2nd Cir. 1992) wherein the Court
voided action of the defendant School Board for violation of the Open Meeting
Law. In that case, the agenda item discussed additional space for a Head Start
this action in the agenda. After discussion, a motion was made to implement a
restructuring program which would close a school, transfer its students to another
school and put the Head Start Program into the closed school. While the Court
found no evidence that the Board intended to act in secret, the Court voided the
action by finding that, in light of the knowledge of the superintendent that he was
Further, no vote was taken to expand the agenda to allow consideration of the
closure.
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In this case, the Court finds that at the time of posting the agenda, Mr.
Landry and Mr. Cavignac had knowledge that resignations to the Hospital Service
District were made or soon to be made, and vacancies would need to be filled.
While they may have felt that the agenda item as posted gave sufficient notice to
the public that two appointments were going to be made, the notice is legally
deficient. La. R.S. 42:7(b)(l) requires that the agenda item as published be
sufficiently detailed to give notice to the public that two vacancies existed on the
action taken while beyond the agenda as published, could have been accomplished
through exceptions to the Open Meeting Law. For the agenda item to be expanded
unanimous vote of the members present add that item to the agenda or modify the
motion. The fact that this procedure is not followed at most meetings does not
exempt it from the Open Meeting Law. Specifically, any action taken by a public
body which violates this law is voidable either by the body by a properly noticed
readdressing of the issue or by Court action within sixty (60) days. If neither is
done, then the action becomes valid. In this case, a timely suit recognized its
involve merit defenses to be set and heard prior to a trial on the Permanent
Injunction. These were not timely filed prior to the hearing on the Preliminary
Injunction and are considered only to address the ability of the Court to hear and
rule on the Preliminary Injunction. The Writ of Mandamus is denied as it does not
apply to the facts of this case as no public entity is a party defendant. While the
Court has made factual findings concerning the Preliminary Injunction those are
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not binding upon a determination concerning issuance of a Permanent Injunction
following a full trial after consideration of all exceptions raised and completion of
discovery.
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