Could Louisiana's river-pilot oversight board investigate a pilot who also served on a pilot commissioners' board?

Plain-English summary

The Board of Louisiana River Port Pilot Review and Oversight asked whether it could investigate members of the pilot commissioners' and examiners' boards. The official opinion drew a line between the person's two roles. It said the oversight board could investigate a board member's conduct while acting as a pilot, because the statute authorized complaints against pilots and did not exempt those who also held board seats.

The AG found no express or implied authority to investigate that person for conduct in the official capacity of a commissioner or examiner. It also cited a statutory protection against requiring board members to testify or face discovery about their board duties in the described proceedings.

The AG declined to classify one recent complaint itself. It said the oversight board would have to decide, case by case, whether the alleged conduct arose from pilotage or from official board membership.

Currency note

This opinion was issued in 2023. 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

Did a pilot's appointment to a commissioners' board prevent oversight of pilotage conduct?
No. The AG said the oversight board could investigate that person's actions as a pilot.

Could the oversight board investigate official decisions made as a commissioner or examiner?
The AG said it lacked authority to investigate the member's conduct in that official board capacity.

Did the AG decide how a specific recent complaint should be classified?
No. It left the factual classification to the oversight board for that complaint and future ones.

Background and statutory framework

La. R.S. 34:1135 assigned oversight and complaint-investigation powers concerning pilot conduct. The opinion applied the rule that an administrative board has only powers given by law or necessarily implied. It also discussed statutory protections for board members' official duties and the governor's appointment and removal role.

Citations and references

Law cited: La. R.S. 34:1135(G). The opinion also discusses the statutory protection for commissioners' and examiners' official duties.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/23-0019

Original opinion text

State of Louisiana
DEPARTMENT OF JUSTICE
CIVIL DIVISION
RO. BOX 94005
BATON ROUGE
70804-9005
Jeff Landrv
Attorney General
June 30, 2023
OPINION 23-0019
87A PILOTS River
Mr. Jack Anderson
-

Chairman, Board of LA River Port
La RS 34:1135
Pilot Review and Oversight
Discusses the investigatory authority of the Board of Louisiana River
2728 Athanla Pkwy
Port Pilot Review and Oversight relative to members of the Boards of
Commissioners or Examiners.
Metairie, LA 70002

Dear Mr. Anderson:

You requested the opinion of this office concerning the authority of the Board of Louisiana River Port Pilot Review and Oversight (‘BOR”) to investigate complaints made against the pilot members of the four boards BOR oversees: the Board of Examiners of Bar Pilots for the Port of New Orleans, the Board of River Port Pilot Commissioners for the Port of New Orleans, the Board of Examiners for New Orleans and Baton Rouge Steamship Pilots for the Mississippi River, and the Board of River Port Pilot Commissioners and Examiners (individually, a “Board of Commissioners or Examiners,” or, collectively, the “Boards of Commissioners or Examiners”).1

Louisiana Revised Statutes 34:1135 vests BOR with oversight authority for certain actions taken by the Boards of Commissioners or Examiners, as well as appellate jurisdiction over the boards’ formal disciplinary proceedings.2 BOR also receives sworn complaints against a pilot for any conduct while in the performance of his duties as a pilot and has the authority to investigate those complaints:

The board shall receive sworn complaints against any pilot from any source for actions taken by a pilot while in the performance of his duties, including acts of misconduct, carelessness, incompetence, intoxication, negligence. or the refusal to offer timely pilotage services without just cause. In addition the board shall receive sworn complaints for abuse of legally prescribed medication and illegal use of controlled dangerous substances. The board may conduct investigations, refer the matter to the Board of Commissioners or Examiners for investigation, or conduct hearings pursuant to the Administrative Procedure Act and the rules adopted by the board. Following notice and a hearing, the board may acquit the pilot or may impose sanctions against the pilot, including but not limited to reprimand of the pilot, order the pilot to participate in remedial training, impose a probationary period, impose a fine not to exceed ten thousand dollars, order the pilot to

1 See La. R.S. 34:941, 991, 1041, and 1072.
2 La. R.S. 34:11 35(C)—(F).

Page 2

OPINION 23-0019
Mr. Jack Anderson
Page 2
period, impose a fine not to exceed ten thousand dollars, order the pilot to pay the costs of the hearings inclusive of attorney fees, or recommend to the governor that the pilot’s commission be suspended or revoked. The board shall have the authority to suspend a pilot’s commission in the event of an emergency pursuant to the emergency procedures of the Administrative Procedure Act.

La. P.s. 34:1135(G).

“It is well settled that an administrative board or agency has only the power and authority expressly granted by the constitution or statutes. Nevertheless, some power and authority may be implied as necessary or appropriate to effectuate the express powers granted to, or imposed upon, such board or agency.” 0ev/If/er v. State, Dep’t of Pub Safety & Corr., 634 So.2d 884, 890 (La.App. 1 Cir. 1993). Thus, BOA, like other regulatory boards, holds only the authority specifically set forth in law and any implied power necessary to exercise such authority.

Your first question is whether SOP has the authority to investigate a member of a Board of Commissioners or Examiners in a member’s capacity as a pilot. Louisiana Revised Statutes 34:1135(0) grants BOR the express authority to investigate any pilot acting in their capacity as a pilot, and we were unable to locate any provision of relevant law or administrative rule that immunizes members of the Boards of Commissioners or Examiners from investigations into the performance of their duties as pilots. It is therefore the opinion of this office that the authority set forth in La. P.S. 34:1135(G) extends to investigations of individual members of the Boards of Commissioners or Examiners when acting in their capacity as pilots.

Next, you ask whether BOA has the authority to investigate a complaint against a pilot member of a Board of Commissioners or Examiners for conduct in their capacity as a member. A review of the relevant statutes does not reveal any authority of BOR to investigate a complaint made against a member of a Board of Commissioners or Examiners in their official capacity as a commissioner or examiner. Furthermore, La. P.S. 34:1134(N) shields members of Boards of Commissioners or Examiners from testifying in their official capacity and states in pertinent part, “No member of the board or the Board of Commissioners or Examiners shaH be subject to deposition or other discovery, or otherwise testify in such proceedings relevant to the performance of their duties on the board or Board of Commissioners or Examiners.” Having found no authority, express or implied, and in conjunction with the directives of La. R.S. 34:1134(N), it is the opinion of this office that SOP is without authority to investigate a member of the Board of Commissioners or Examiners acting in their official capacity as a commissioner or examiner.

However, members of the Boards of Commissioners and Examiners are appointed by the governor and are subject to removal by the governor. Louisiana Revised Statutes 40:946 provides that members of the Board of Examiners of Bar Pilots for the Port of New Orleans which fail or refuse to perform their duties ‘may, upon written statement signed by a majority of the commissioned bar pilots stating their cause of complaint, be removed from

Page 3

OPINION 23-0019
Mr. Jack Anderson
Page 3

office by the governor Louisiana Revised Statutes 40:99 1 states that members of the Board of River Port Pilot Commissioners for the Port of New Orleans “shall serve at the pleasure of the governor’ Louisiana Revised Statutes 40:1042 and 1072 both provide that members of the Board of Examiners for New Orleans and Baton Rouge steamship pilots for the Mississippi River and the Board of River Port Pilot Commissioners and Examiners may only be removed by the governor for cause.

Your final question relates to whether BOR may investigate, pursuant to La. R.S. 34:1135(G), a recent complaint against a member of a Board of Commissioners or Examiners. The answer to this question turns on a fact-specific analysis of whether the member performed the conduct at issue while acting in their official capacity as a board or commission member or in their capacity as a pilot. The Attorney General’s Office generally refrains from conducting factual evaluations, and we decline to do so here. For this and any other complaint that BOR receives regarding a member of a Board of Commissioners or Examiners, BOR must determine, on a case-by-case basis, whether the conduct alleged in the complaint arises out of the member’s conduct as a pilot, generally, or their status as a board member, specifically.

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

With best regards,

JEFF LANDRY
ATTORNEY GENERAL

BYW
Amanda M. LaGroue
Assistant Attorney General

JL:AML