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LLA Legal Assistance Blog

Update to Legal Assistance FAQs

The Legal Assistance FAQs and White Papers have all been updated to reflect changes in the law from the 2017 Session. The FAQs are periodically updated throughout the year as necessitated by court cases and Attorney General opinions, but following each Legislative Session, a cumulative update is done. Please visit the Legal FAQs here.


Access to Public Records

The Louisiana Supreme Court recently held that the provisions of the Public Records Law excluding a person incarcerated for a felony from requesting public records does not extend to his or her attorney. Boren v. Taylor, 16-1809 (La. 5/3/17); -- So.3d --. La. R.S. 44:31.1 provides that any person over the age of 18 may make a public records request except for individual in custody, post-sentencing for a felony conviction, who has exhausted their appellate remedies and the record requested is not limited to certain grounds under which post conviction relief can be obtained. In Boren, the attorney for such an incarcerated person made a public records request to the St. Landry Parish District Attorney’s Office regarding his client’s prosecution. The request was denied because the attorney “stood in the shoes” of his incarcerated client. The attorney then filed a Petition for Writ of Mandamus and Review which was ultimately reviewed by the Supreme Court. The Court reaffirmed the liberal construction to be given to the Public Records Law and held that R.S. 44:31.1 only applies to an incarcerated person, not his attorney. Therefore, the attorney for such incarcerated person has an individual right to request public records which has not been “specifically an unequivocally” limited by law. The Court remanded the case to the district court with instructions to issue a writ of mandamus to the St. Landry Parish District Attorney ordering compliance with the Public Records Law without regard to the provisions of R.S. 44:31.1. To read the full opinion of the Court, please click here.


Trending in Public Records (Update)

The Louisiana Supreme Court recently extended the Public Records Law to private entities engaged in public functions. New Orleans Bulldog Society v. Louisiana Society for the Prevention of Cruelty to Animals, 16-1809 (La. 5/31/17);--So.3d--. The Court affirmed the hodling by the Fourth Circuit that the contractual agreement between the LAPSPCA, a private, non-profit corporation, and the City of New Orleans, wherein the LASPCA provided mandated city services regarding animal control, made the LASPCA an instrumentality of the City. As an instrumentality of the government, the Court found that the LASPCA was a quasi-public entity subject to the Public Records Law. For more information on this case, please see the white paper posted to the Legal FAQs here.


Sexual Orientation Discrimination

The US Court of Appeals for the Seventh Circuit held that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects against sexual orientation discrimination in the workplace. This decision is significant because it is the first time that a federal court of appeals has extended the protections of Title VII to sexual orientation. In Hively v. Ivy Tech Community College of Indiana, -- F.3d – (7th Cir. 04/04/17) the plaintiff, a part-time instructor at a community college, brought an action under Title VII alleging that the school denied her full-time employment and terminated her contract because she was a lesbian.

Title VII protects against employment discrimination on the basis of sex. However, courts across the country have consistently dismissed Title VII lawsuits based on sexual orientation discrimination because the law does not contain an express inclusion of sexual orientation as a protected category. In fact, over the past several years, legislation has been repeatedly and unsuccessfully introduced in the US Congress to include sexual orientation as a protected category under Title VII. Nonetheless, the Equal Employment Opportunity Commission (“EEOC”) has for several years interpreted Title VII protections to extend to sexual orientation and has been active in bringing federal lawsuits against employers on behalf of LGBT employees.

In the Hively case, the federal district court dismissed the plaintiff’s case on the grounds that long-standing law holds that Title VII does not extend to sexual orientation discrimination. The district court’s decision was initially affirmed by a three judge panel of the Seventh Circuit on the basis of the Circuit’s previous rulings on the issue. However, the plaintiff sought and was granted an en banc re-hearing before all 11 judges on the Seventh Circuit. The en banc re-hearing of the case resulted in this 8-3 decision that LGBT employees can sue employers for discriminatory employment actions based on their sexual orientation under Title VII. The majority held that “the time had come” to overrule its previous decisions holding that Title VII protections did not extend to sexual orientation. The dissent, on the other hand, noted that amending Title VII was the job of an elected US Congress, and not the job of unelected federal judges.

Recently, the US Court of Appeals for both the Second and Eleventh Circuits held in similar cases that they were required by their prior rulings to affirm that Title VII protections do not extend to sexual orientation. With this Seventh Circuit decision, there is now a split in the Circuits, which makes it likely that the US Supreme Court will take up this matter. The LLA will update this entry as the matter develops.


Public Records & Electronic Communications

The Louisiana Supreme Court recently rendered a decision impacting public employee’s electronic communications and public records requests. In Shane v. Parish of Jefferson, et al, 14-225 (La. 12/8/15); --So.3d ---, the Court held that personal emails written by public employees on public email systems may be public records if they are used in a public function. In that case, the emails were used by Jefferson Parish’s internal auditor during an audit of the public employee’s use of his work computer to engage in prohibited political activity.

The Shane court went on to hold that the redaction of identifying information of the non-employee third parties with whom the public employee communicated adequately preserved the third parties’ rights to privacy and association. To learn more about the Shane decision as well as privacy expectation in public workplace electronic communications, please read the LLA’s white paper here.


Trending in Public Records

Cases from the Fourth and First circuit may indicate a trend in Louisiana to expand the public records law to private corporations when engaged in public functions. In <>iNew Orleans Bulldog Society v. Louisiana Society for the Prevention of Cruelty to Animals, et al. 2015-1351 (La.App. 4 Cir. 9/7/16); 200 So.3d 996, writ granted 16-1809 (La. 01/09/17) – So.3d ---, the Fourth Circuit held that the contractual agreement between the LASPCA, a private, non-profit corporation, and the City of New Orleans, wherein the LASPCA provided mandated city services regarding animal control, made the LASPCA an instrumentality of the City. As an instrumentality of the government, the Fourth Circuit held that the LASPCA was a quasi-public entity subject to the Public Records Law. This case is similar to the unpublished case from the First Circuit, Community Press, LLC v. CH2M Hill, Inc. 2011-0682 (La.App. 1 Cir. 2/10/12). In CH2M Hill, the City of Central engaged CH2M Hill, Inc., a private, for-profit corporation, to provide nearly all municipal services for the City. As such, the First Circuit found that CH2M Hill could be viewed as an instrumentality of the City subject to the Public Records Law and remanded the case to the trial court for that determination.

Oral arguments before the Louisiana Supreme Court in the New Orleans Bulldog Society v. Louisiana Society for the Prevention of Cruelty to Animals were held on March 15, 2017. As sson as the Supreme Court hands down its decision, this entry will be updated.


Ban the Box

Act 398 of the 2016 Legislative Session is known as the “Ban the Box” law. With this new law, employment applications for certain State unclassified positions no longer ask whether the applicant has been convicted of a felony. The idea behind the change is to give applicants an initial chance to be interviewed rather than being rejected outright because of a past conviction. However, applicants may still need to pass background checks if otherwise required by the position. The State civil service board is considering making a similar change for classified positions. This change in the law does not apply to local governments; however, local governments may choose to pass similar ordinances or resolutions.


Major Changes to Local Government Budget Act

Act 520 of the 2016 Legislative Session made major changes to the Local Government Budget Act (LGBA). The first significant change involves local entities formed under Home Rule Charter. Prior to the new law, the LGBA was required as “minimum standards” for local entities under Home Rule Charter. Now, such entities are subject to the LGBA only to the extent there is no conflict with their Home Rule Charter. The LLA will keep track of how this change in the law will develop with conflicts between the state law, LGBA, and local Home Rule Charter government entities. The second significant change involves amendments to the budget prior to adoption. A comprehensive budget for general fund and special funds is still required. However, now amendments to the proposed budget may be made at any time prior to adoption. This change impacts the traditional roles between the executive and legislative branches of local governments. Once the budget is adopted, with all amendments by the governing authority, any amendments to the adopted budget remain the same pursuant to R.S. 39:1310. For more information on changes to the LGBA, please see Legal FAQs.