Did Louisiana public-records, audit, meeting and bid laws apply to a volunteer fire department receiving public funds?

Plain-English summary

A legislator asked how Louisiana law classified a nonprofit volunteer fire department that performed firefighting for a public entity and received public funds. In August 2015, the Attorney General said the department was not a public entity under the four-factor test it discussed. That did not end the analysis: different statutes used different definitions, and the AG assessed each law separately.

The department was subject to the Public Records Law for records connected to the receipt or expenditure of public funds. It would be subject to Legislative Auditor oversight as a quasi-public body if it met at least one of the Audit Law’s listed criteria. The AG said a volunteer fire department did not meet the Public Bid Law's public-entity or Local Government Budget Act's political-subdivision definition. Its separate open-meetings conclusion reflected the request’s lack of any policy-making, advisory, or administrative functions for the department.

Currency note

This opinion was issued in 2015. 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.

Common questions

Were all of the volunteer department’s records public?

No. The AG limited inspection to records connected with receiving or spending public funds. It did not treat unrelated private records as public merely because the department received some public money.

Did public funding automatically make the department a government agency?

No. The opinion applied a four-factor test and concluded the described nonprofit was not a public entity. It separately applied statutes that could reach private or quasi-public bodies.

Did the department have to follow Louisiana’s public bid rules?

The AG said the volunteer department described in the request was not a public entity under the Public Bid Law. Its answer did not classify a fire district or other contracting government body.

Was the department required to hold open meetings?

On the facts given, no. The request did not identify policy-making, advisory, or administrative functions that would bring it within the Open Meetings Law definition the AG applied.

When could the Legislative Auditor review the department?

The AG said audit oversight applied if the department met at least one of the quasi-public-body criteria in La. R.S. 24:513(A)(1)(b). It did not make receipt of a service contract alone a universal answer to every criterion.

Background and statutory framework

The opinion applied separate definitions under the Public Records Law, Audit Law, Public Bid Law, Open Meetings Law, and Local Government Budget Act. For public records, the AG relied on the department’s governmental firefighting function and use of public funds. For audit oversight, it cited the enumerated alternatives in La. R.S. 24:513(A)(1)(b). For meetings, it noted the absence of policy-making, advisory, or administrative functions in the stated facts.

Citations

• La. R.S. 44:1 (public-body definition for records).
• La. R.S. 24:513(A)(1)(b) (quasi-public-body audit criteria).
• La. R.S. 38:2211 (Public Bid Law definition discussed).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/15-0080

Original opinion text

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DEPARTMENT OF JUSTICE
P.O. BOX 9400S
BATON ROUGE

JAMES D. "BUDDY" CALDWELL
70804-9005
ATIORNEY GENERAL

August 25,2015
OPINION 15·0080

47-A-1 FIRE PROTECTION DiSTRICTS

La. RS. 24:513
La. RS. 33:2101
La. RS. 38:2211
La. RS. 39: 1302
La. RS. 44:1A
La. RS. 42:13

A 501(c)3 Volunteer Fire Department (VFD) is not a public entity. A VFD performing a governmental function and receiving public-funds is considered a public body subject to the louisiana
The Honorable Bryan J. Adams
Public Records Law (La. R.S. 44:1 et seq.), but only to the
State Representative, District 85
extent that its records are connected to the receipt or
expenditure of public funds. Further, a VFD is considered a
P.O. Box 1387
Quasi-public entity subject to the Audit Law (La. R.S. 24:511 et
Gretna, LA 70054
seq.), if it meets at least one of the elements enumerated in La.
RS. 24:513(A)(1)(b)(i)-(v). However, a VFD is not subjeclto the Public Bid Law (La. R.S. 38:2211 at seq.), Open Meetings Law
Dear Representative Adams: (La. R.S. 42:1 at seq.), or the Local Government Budget Act (La.
RS. 39:1301 et seq.).

You have requested an Attorney General's opinion as to whether a 501(c)3 Volunteer Fire Department ("VFD") performing firefighting services for a public entity, and receiving public funds, is considered a private, public or quasi-public entity, In addition, you ask whether a non-profit VFD must comply with state laws including, but not limited to, the Open Meetings Law, Public Records Law, Public Bid Law, Local Government Budget Act, etc.

As an initial matter, we note that the classification of a VFD as a private, public or quasi­ public entity is a question of fact which depends on different factors, such as the manner in which the department was created, the extent of public funding and the degree of control, if any, by the public entity.' Because this office does not serve as a fact finder, we address your inquiry by describing the law applicable to VFDs in general.

In State v. Smith, 357 SO.2d 505 (La. 1978), the Louisiana Supreme Court held that in order for an entity to be considered public, the following four factors must be considered: (1) whether the entity was created by the legislature; (2) whether its powers were specifically defined by the legislature; (3) whether the property of the entity belongs to the public; and (4) whether the entity's functions are exclusively of a public

1 See La. Ally. Gen. Op. No. 02-36.

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Representative Bryan J. Adams
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character and performed solely for public benefit. 2 Further, all four factors must be present in order for a court to determine that an entity is public."

Your request states that the VFD is a private, non-profit orqanlzation." None of the facts indicate that the VFD was created by the legislature or that its powers are specifically defined by the legislature. Thus, since the VFD fails to meet the Smith-factors, it follows that the VFD is not a public entity.

Whether a VFD can be considered a strictly private corporation or a quasi-public entity depends on the body of laws under analysis. To illustrate:

The Public Records Law (La. R.S. 44:1 et seq.) applies to all public bodies, including "a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function." The Supreme Court of Louisiana in Guste v. Nicholls College Foundation, 564 So. 2d 682 (La. 1990), and the First Circuit, on remand, at 592 So. 2d 419 (La.App. 1 Cir. 1991) writ denied, 593 So. 2d 651 (La. 1992), confirmed that intrinsically private, non-profit corporations, to the extent they take on the performance of a governmental function and use public funds and resources, are subject to the Public Records Act. The inspection of public records, however, is limited to those records related to the use of public tunds," The Nicholls court stated:

If a private corporation accepts public money from a public body in the discharge of the latter's constitutional or legal duties, it must disclose records concerning those transactions, .including the receipt and expenditure of those funds. If those corporations wish to avoid divulging nonpublic receipts and expenditures, they need only maintain separate and distinct books, accounts and recoros.' (Emphasis added).

According to your request, the VFD performs a governmental function by providing firefighting services for a public entity in benefit of the community and receives public funds. As such, said VFD is subject to the Public Records Law.s

In contrast to the Public Records Law, the receipt or expenditure of public funds is not necessary to be considered a quasi-public entity under the Audit Law (La. R.S. 24:511 et seq.).9 La. R.S. 24:513(A)(1)(a) gives the Louisiana Legislative Auditor the authority

2 State v. Smith, 357 So.2d 505, 507-08 (La. 1978).
3 Property Insurance Association of Louisiana v. Theriot, 09-1152 (La.3116110), 31 SO.3d 1012, 1015
{"PIAL')
La. R.S. 33:2101 authorizes a parish or fire district to contract with a VFD to provide fire protection; however, "being paid for services by contract with public funds does not make a contracting party public." PIAL, supra at p. 1019. 5 La. R.S. 44:1(A)(1). 6 earterv. Fench, 322 So. 2d 305,307 (La. Ct. App. 1975) writ denied, 325 So. 2d 277 (La. 1976). 7 Nicholls, supra, at p. 689. 6 See La. Atty. Gen. Op. Nos. 06-0171, 02-36, and 79-858. 9 La. Atty. Gen. Op. No. 11-0189A.

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to "compile financial statements and to examine, audit or review the books and accounts of...quasi-public agencies or bodies." A quasi-public agency or body, pursuant to La. R.S. 24:513(A)(1)(b), is defined as follows:

(i) An organization, either not-for-profit or for profit, created by the state of Louisiana or any political subdivision or agency thereof, any special district or authority, or unit of local government to perform a public purpose.
(ii) An organization, either not-for-profit or for profit, that is a component unit of a governmental reporting entity, as defined under generally accepted accounting principles.
(iii) An organization, either not-for-profit or for profit, created to perform a public purpose and having one or more of the following characteristics:
(aa) The governing body is elected by the general public.
(bb) A majority of the governing body is appointed by or authorized to be appointed by a governmental entity or individual governmental official as a part of his official duties.
(cc) The entity is the recipient of the proceeds of an ad valorem tax or general sales tax levied specifically for its operations.
(dd) The entity is able to directly issue debt, the interest on which is exempt from federal taxation.
(ee) The entity can be dissolved unilaterally by a governmental entity and its net assets assumed without compensation by that governmental entity.
(iv) Any not-for-profit organization that receives or expends any local or state assistance in any fiscal year. Assistance shall include grants, loans, transfers of property, awards, and direct appropriations of state or local public funds. Assistance shall not include guarantees, membership dues, vendor contracts for goods and services related to administrative support for a local or state assistance program, assistance to private or parochial schools except as provided in R.S. 17:4022, assistance to private colleges and universities, or benefits to individuals.
(v) Any organization, either not-for-profit or for profit, which is subject to the open meetings law and derives a portion of its income from payments received from any public agency or body.

Relevant to our analysis is Louisiana High School Athletics Ass'n, Inc. v. State, 12-1472 (La. 1/29/13), 107 So.3d 583 (LHSAA). In essence, the LHSAA decision focuses on whether La. R.S. 24:513(A)(1)(b)(v), defining a "quasi-public" agency or body for the limited purpose of being subject to the authority of the Louisiana Legislative Auditor, is applicable to the LHSAA. The Court reasoned that whether the statute applies to the LHSAA depends upon whether the LHSAA is subject to the Open Meetings Law and receives public fundinq.'?

10 LHSAA, supra at p. 603.

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After determining that the "connexity" factor is not one which should be considered in whether or not an entity is a "public body" under La. RS. 42:13,11 the court analyzed whether the LHSAA (1) performs a government function or performs a function which, by law, is entrusted to other public bodies; (2) is funded by public money; and (3) exercises policy-making, advisory, and administrative functions. Ultimately, the court concluded that "the LHSAA is not a 'public agency or body' for purposes of the Open Meetings Law and therefore, cannot be a 'quasi public agency or body,' as defined in La. RS. 24:513(A)(1)(b)(v)."12

Thus, a VFD will be classified as a quasi-public agency or body for purposes of the Louisiana Audit Law, and subject to the audit and oversight authority of the Legislative Auditor, if it meets at least one of the elements enumerated in La. R.S. 24:513(A)(1)(b)(i)_(v).13

Even if an entity is a quasi-public body for purposes of another set of laws, our office has opined that a VFD does not qualify as a "public entlty"!" within the meaning of Public Bid Law (La. RS. 38:2211 et seq.); as a "political subdivision'l" under the Local

11 The LSHAA decision overruled Spain v. Louisiana High School Athletic Association, 398 SO.2d 1386
\La. 1981), which included the connexity element as a relevant factor. 2 LHSAA, supra at p. 609. 13 See La. Atty. Gen. Op. Nos. 06-0171, 02-36,90-271 and 84-583. 14 The Public Bid Law, La. R.S. 38:2211(A)(11) states, in relevant part, as follows:
"Public entity" means and includes the state of Louisiana, or any agency, board, commission, department, or public corporation of the state, created by the constitution or statute or pursuant thereto, or any political subdivision of the state, including but not limited to any political subdivision as defined in Article VI Section 44 of the Constitution of Louisiana, and any public housing authority, public school board, or any public officer Whether or not an officer of a public corporation or political subdivision. "Public entity" shall not include a public body or officer where the particular transaction of the public body or officer is governed by the provisions of the model procurement code.
15 The Local Government Budget Act, La. R.S. 39: 1302 reads, in pertinent part:
(1) "Political subdivision" means any:
(a) Parish governing authority and all districts, boards, or commissions created by such parish governing authority either independently or in conjunction with other units of government.
(b) Municipality and all boards and commissions created by such municipality, either independently or in conjunction with other units of government.
(c) School board.
(d) Special district created pursuant to and under the authority of Article VI, Section 16 or 19 of the Louisiana Constitution.
(e) City court.
(I) District public defender office.
(g) Housing authority.
(h) Mortgage authority.
(i) Political subdivisions of the state not included within the state's Comprehensive Annuai Financial Reports.
U) Registrar of voters.
(k) Independently elected parish offices, including the office of assessor, clerk of district court, coroner, district attorney, sheriff, and judges, but only insofar as their judicial expense funds, as provided for in Title 13 of the Louisiana Revised Statutes of 1950.

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Government Budget Act (La. RS. 39:1301 et seq.); as a "governmental body,,16 under the Procurement Code (La. RS. 39:1551 et seq.); or a "public body,,17 under the Open Meetings Law (La. RS. 42:1 et seq.)."

Specifically, when analyzing a VFD under the Open Meetings Law, we note that the fact that the VFD is set up as a private non-profit corporation is not dispositive of the question of whether it is a public body for the purpose of the Open Meetings Law. Moreover, the mere fact that the VFD receives public money does not make it a public body for the purpose of the Open Meetings Law.19

The facts presented in your request do not state that the VFD has any policy making, advisory, or administrative functions. Consequently, since the VFD lacks these types of functions to be considered a public body as defined in La. RS. 42: 13(A)(3), it follows that a VFD is not subject to the Louisiana's Open Meetings law.20

In sum, it is the opinion of this office that a 501(c)3 Volunteer Fire Department (VFD) is not a public entity. A VFD performing a governmental function and receiving public funds ;s considered a public body subject to the Louisiana Public Records Law (La. RS. 44:1 et seq.), but only to the extent that its records are connected to the receipt or expenditure of public funds. Further, a VFD is considered a quasi-public entity subject to the Audit Law (La. R.S. 24:511 et seq.), if it meets at least one of the elements enumerated in La. RS. 24:513(A)(1)(b)(i)-(v). However, such a VFD is not subject to the Public Bid Law (La. R.S. 38:2211 et seq.), Open Meetings Law (La. RS. 42:1 et seq.), or the Local Government Budget Act (La. RS. 39:1301 et seq.).

We trust this adequately responds to your request. However, if our office can be of
. further assistance, please do not hesitate to contact us.

'6 The Procurement Code, La. R.S. 39:1556(24) defines a governmental body as an entity within the executive or judicial branch of state government. 17 The Open Meetings Law, La. R.S. 42:13(A)(3) provides, in relevant part, as follows:
"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. ta La. Atty. Gen. Op. No. 06-0171.
1.
La. Atty. Gen. Op. No. 13-0043.
20 See, for example, La. Atty. Gen. Op. No. 13-0043 (The Rapides Primary Health Care Center, Inc., a federally qualified health care center and non-profit corporation is not required to comply with the Open Meetings Law); and La. Atty. Gen. Op. No. 14-0106 (The Greater New Orieans Sports Foundation and the New Orleans Super Bowl XLVII Host Committee, which receive public funds, are not considered public bodies for purposes of the Open Meetings law).

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Yours very truly,

By:
Ethel Solache Graha
Assistant Attorney General
JOG: ESG