Could school board members vote on a lawsuit in which they or their families might recover money?

Plain-English summary

East Feliciana Parish School Board members or their family members were involved in a class action over alleged misuse of tax proceeds. The district attorney asked whether board members could make decisions about the suit when a favorable result might pay them. In Opinion 03-0121, the Attorney General said the public-contract-fraud question depended on each member's actions and potential personal gain. A vote, solicitation, or other affirmative use of office to secure an expenditure for a member's own benefit could cross the statutory line; minor decisions without that effect might not.

The AG suggested, out of caution, that plaintiff board members recuse themselves from decisions affecting the lawsuit. He separately said the fraud statute did not appear to extend merely because a member's immediate family could benefit, although participation still had to comply with the Louisiana Code of Governmental Ethics. The opinion did not declare all lawsuit-related votes unlawful.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at issuance

Board members who were plaintiffs

The AG identified personal use of board power to secure an expenditure as the statute's concern. He recommended recusal from lawsuit decisions out of caution, while saying the legal analysis remained fact-specific.

Members with family plaintiffs

The opinion said an immediate family member's gain alone did not appear within the cited public-contract-fraud provision. It expressly reserved any issue under the governmental ethics code.

School board counsel

The opinion distinguished decisions that might direct public funds to a member's own recovery from other decisions about the suit. It called for reviewing each decision's effect and the member's actions, rather than treating every lawsuit discussion alike.

Common questions

Q: Did membership in the lawsuit automatically bar a board member from every related vote? A: The AG did not impose a blanket statutory ban. He required a case-by-case personal-gain analysis and suggested recusal for plaintiff members as a precaution.

Q: Could a board member vote to spend public funds that would help the member's own claim? A: The opinion described a vote or other affirmative use of office to secure an expenditure for personal gain as the kind of conduct the fraud statute prohibited.

Q: Did the same fraud rule automatically cover a relative's recovery? A: The AG said it did not appear to, but participation also had to satisfy the separate ethics code.

Background and statutory framework

The opinion quoted La. R.S. 14:140(A)(2), which addressed a public board member voting or using influence to secure expenditure of public funds to the member or specified business interests. It applied the Louisiana Supreme Court's discussion in State v. Abemathy, 194 La. 559, 194 So. 19 (La. 1940), as spelled in the extract. The first page prints "APR 5 2003" and identifies the opinion as 03-0121.

Citations and references

Authorities in the opinion: La. R.S. 14:140(A)(2); State v. Abemathy, 194 La. 559, 194 So. 19 (La. 1940). The opinion also reserved the Louisiana Code of Governmental Ethics for family-benefit scenarios.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0121

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

DEPARTMENT OF .IUSTICE
One American Place
301 Main Street, Suite 600
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P.O. Box 94005
BATON ROUGE
TEL.: (225) 342-7013
FAX: (225) 342~2090
RICHARD P. IEYOUB
~70804-90f~
ATTORNEY GENERAL
APR 5 2003
OPINION No. 03-0i2i
94 - ~CHOOLB & BCHOOL DIBTRICT~ - Administration, Government & ~cer~
La. R. S. 14:140
La. R.S. 14:140(A)(2)

It is the opinion of this office that the School Board take each situation on a case-by-case basis in order to determine if the member’s position is being used at an advantage for personal profit or gain, thus public contract fraud. Out of an abundance of caution however, it may be in
Mr. Michael L. Hughes
the best interest of the School Board to recuse all plaintiff school
board members from making any decisions that affect the lawsuit, Office of the District Attorney while cloaked under their duties and responsibilities of public office.
P. O. Box 1247
St. Francisville, LA. 70775 A school board member may legally be allowed to participate in discussions and votes on the lawsuit, if the board member has an immediate family member that would receive profit or gain as a
Dear Mr. Hughes: result of a decision of the School Board, provided that such participation
is not a violation of the Louisiana Code of Governmental Ethics.

This office is in receipt of your request for an opinion regarding the application of La. R.
S. 14:140 to the situation presented in your original January 20, 2003 letter requesting an opinion, in that letter, you stated that several East Feliciana Parish School Board members, and/or their immediate families, are involved in a class action lawsuit involving the alleged misapplication of tax avails. You stated that, should they prevail, there could be substantial financial benefit for these school board members and/or their immediate families. With these facts in mind, you have posed the question of whether these school board members are prohibited from making decisions that relate to this lawsuit.

La. R.S. 14:140(A)(2) provides, in pertinent part, as follows:

A. [P]ublic contract fraud is committed:

(2) [W]hen any member of any public board, body, or commission charged with the custody, control, or expenditure of any public funds votes for or uses his influence to secure any expenditure of such funds to himself, or to any partnership of which he is a member, or to any corporation of which he is an officer, director, or stockholder.

Although not technically a partnership, the plaintiff class in the above described lawsuit shares a common interest with any school board member who belongs to that class. A decision made by a school board member regarding the lawsuit could not only secure expenditures of funds for the lawsuit that would essentially affect his/her personal profit or gain, but also the personal profit and gain of the other members of the class.

It is important to note the purpose and function of La. R.S. 14:140, when applying it to the situation you presented. The Louisiana Supreme Court analyzed this statute by stating that, "[l]he obvious purpose of this Act was to prevent one from using his position on a public board, or his influence by reason of his membership upon such

Page 2

Mr. Michael L. Hughes
OPINION No. 03-0121
Page - 2-

board, for his own gain and profit." State v. Abemathy, 194 La. 559, 194 So. 19 (La. 1940). The Court further elaborated by noting that, "[U]nless advantage be taken of this position however, either by a member’s own vote or by the votes of other members of the board at his solicitation, or as the result of some act of connivance by him with other members of such board, or other affirmative act, indicating that he has used his board membership for personal profit or gain, I do not believe there has been a violation of the Act in question." State v. Abemathy, 194 La. at 569 (La. 1940). Therefore, these school board members would have to vote, solicit or perform an affirmative act that would essentially help in their personal profit or gain with regards to the lawsuit.

While your question poses a very broad inquiry of whether the school board members are prohibited from participating in all decisions relating to the lawsuit, as noted above, the Louisiana Supreme Court has narrowed what would be prohibited. For example, a decision to allocate additional funds that would aid in the success of the lawsuit and would lead to personal gain by school board members, would consequently be prohibited. However, other minor decisions regarding the lawsuit, which do not reserve expenditures to the personal profit or gain of school board members, may not be prohibited. It is the opinion of this office that the School Board take each situation on a case-by-case basis in order to determine if the member’s position is being used at an advantage for personal profit or gain, thus public contract fraud. Out of an abundance of caution however, it may be in the best interest of the School Board to recuse all plaintiff school board members from making any decisions that affect the lawsuit, while cloaked under their duties and responsibilities of public office.

Public contract fraud does not appear to extend to those situations where the school board member has an immediate family member who will receive profit or gain as a result of the school board member’s vote. It is further the opinion of this office that a school board member may legally be allowed to participate in decisions and votes on the lawsuit, if the school board member has an immediate family member that would receive profit or gain as a result of a decision of the School Board, provided that such participation is not a violation of the Louisiana Code of Governmental Ethics.

It is our hope this opinion sufficiently addresses your concerns. If this office can be of any further assistance please let us know.

Very truly yours,

RIC~AR~P. I~YOUB

By: X,~ Vv- ~
Veronica L. Howard
Assistant Attorney General

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