Opinion Number

Dear Mr. Martin:

You have requested an Attorney General's opinion as to whether the Acadia Economic Development Corporation ("Corporation") is a public body and should conduct its business as such under the open meetings laws.

You state that the Acadia Parish Police Jury has provided approximately $60,000 in funding for the Corporation for the fiscal year 1998. You also provide that the Police Jury has entered into a cooperative endeavor with the Corporation regarding economic development within Acadia Parish.

The Corporation is organized pursuant to the Corporation Code as a non-profit corporation pursuant to LSA-R.S. 12:201 et seq. LSA-R.S. 12:202.1(D) requires a quasi-public nonprofit corporation to comply with, "the public contract law, and the public records laws of the State of Louisiana."

In Opinion Number 92-208, this office was asked what factors to consider in determining whether a private nonprofit corporation is subject to the Public Records Act. In reiterating the court's analysis in State ex. rel. Guste v. Nicholls College Foundation,564 So.2d 682 (La. 1990), the analysis was based upon the following criteria:

1) Is the entity who received the money a public body?

2) Is the entity who gave the money a public body?

3) Was the money transferred in furtherance of a constitutional or legal duty of the giver?

4) Is the entity receiving the money responsible for using the funds in furtherance of a constitutional or legally endowed responsibility?

As noted by the Court in Guste, "the law favors a liberal construction of the public records law `so to enlarge rather then restrict access to public records by the public.'" Guste citingLewis v. Spurney, 458 So.2d 488 (La. 1984).

The Court in Guste found that the Federation was, "because of its relationship with Nicholls State, a `quasi-public' nonprofit corporation `designated as an entity, to perform a governmental or proprietary function' and thus a `public body' for purposes of the Public Records Act." Guste at 687. The Court found that the money that was transferred to the Foundation was also public funds because the "central purpose of both organizations is to promote the University." Id. Additionally, the Court held "that the money was given and accepted `under authority of the constitution and the laws of this state' in the furtherance of a governmental purpose." Id.

In conclusion, the Court held "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 records." Id.
at 689.

For purposes of quasi-public status, the open meetings laws apply in a similar fashion. See Attorney General Opinion Number 81-1153, enclosed herein.

The Corporation at issue entered into a cooperative endeavor with the Police Jury for the stated purpose of "providing a method by which [the Corporation] can assist the [Police Jury] in fulfilling its legal, moral and economic obligations with regard to economic development and enhancement within the affected area."

By its own language, the cooperative endeavor establishes the purposes of the agreement as the fulfillment of legal duties of the Police Jury. Additionally, public funds are received by the Corporation from the Police Jury for the execution of a general purpose.

Therefore, we must conclude the Acadia Economic Development Corporation is subject to the open meetings laws, LSA-R.S.42:4.1, et seq.

I trust this sufficiently addresses your concerns. If our office may be of further assistance, please do not hesitate to contact us.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: ______________________________ CARLOS M. FINALET, III Assistant Attorney General

RPI:CMF:glb

Date Received:

Date Released:

CARLOS M. FINALET, III
Assistant Attorney General

State of Louisiana DEPARTMENT OF JUSTICE

WILLIAM J. GUSTE, JR. 7TH FLOOR ATTORNEY GENERAL 2-3-4, LOYOLA BUILDING NEW ORLEANS 70112

December 22, 1981 61 — LAWS — GENERAL OPINION NO. 81-1153 61-B — LAWS — CODE OF ETHICS 90-A-1 — PUBLIC FUNDS PUBLIC CONTRACTS 90-B-4 — PUBLIC MEETINGS Honorable Charles E. Bruneau, Jr. 90-C — PUBLIC RECORDS Vice-Chairman The Board of Commissioners of the New Committee on Ways and Means Orleans City Park Improvement Assn. is Louisiana House of Representatives subject to the Public Records Law, the P. O. Box 44293 Open Meetings Law, the Public Bid and Baton Rouge, Louisiana 70804 Public Contracts Law the Code of Ethics Law. The Bd. is also subject

Dear Mr. Bruneau: to the Audit by the Legislative Auditor.

You have requested the opinion of this office on the following questions regarding the Board of Commissioners of the New Orleans City Park Improvement Association:

1) Is the Park Board subject to the Public Records Law?

2) Is the Park Board subject to the Public Bid and Public Contracts Law?

3) Is the Board subject to the Open Meetings Law and, if so, are committees of the Board subject to this Law?

4) Is the Board subject to the Code of Ethics Law?

5) Is the Board subject to audit by the Legislative Auditor?

6) Are the provisions of Section 7 of Act 130 of the 1896 Regular Session of the Legislature still in effect?

Act No. 130 of the 1896 Regular Session of the Louisiana Legislature placed the New Orleans City Park under the control and management of the New Orleans City Park Improvement Association. Under the provisions of § 5 of Act No. 130, the Association is empowered to make and adopt such by-laws, rules and regulations for the government of City Park as it may deem necessary or proper, to elect and appoint such officers, committees and employees as it may

The provisions of Act No. 30 of 1896 are still in effect. Act. No. 30 of 1896; Act. No. 104 of 1934; Act. No. 492 of 1958; R.S. 42:4.1-12; R.S.38:2211 et seq.; R.S. 44:1 et seq.; R.S. 42:1101 et seq.; R.S. 24:513A. consider proper, and to prescribe and define their respective, duties, authority and the amount of their compensation. In Act No. 104 of the 1934 Regular Session of the Legislature, § 71, the New Orleans City Park Improvement Association was again recognized as the agent of the State of Louisiana to manage and control the New Orleans City Park. See also, Act No. 492 of the 1958 Regular Session of the Louisiana Legislature.

Whether the Board of Commissioners of the New Orleans City Park Improvement Association is subject to the Public Records and Open Meetings Laws depends on whether the Association is a public body as defined in these laws. Similarly, if the Association is a "public entity" as defined in the Public Bid and Contracts Law, its public works and purchases of materials and supplies must be advertised and let by contract to the lowest responsible bidder in accordance with the provisions of R.S. 38:2211 et.seq.

This office is of the opinion that the Board of Commissioners of the New Orleans City Park Improvement Association is a public body as defined in the Public Records and Open Meetings Laws and must therefore adhere to the provisions of both the Public Records Act and the Open Meetings Law.

The Louisiana Public Records Act, R.S. 44:1 et.seq., defines a public body as follows:

As used in the Chapter the phrase "public body" means any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, or any other instrumentality of state, parish or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function.

Under the provisions of Acts 130 of 1896 and 104 of 1934 the New Orleans City Park Improvement Association is an agency or instrumentality of state government empowered to perform governmental and proprietary functions. As such its records are public records as defined in R.S. 44:1A(2).

A similar definition of public body is found in the Open Meetings Law, R.S. 42:4.1-12. As amended 1981 First Extraordinary Session of the Louisiana Legislature. For the purposes of the Open Meetings Law:

(2) "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."

R.S. 42:4.2A(2). The Board of Commissioners of the City Park Improvement Association clearly possesses policy making, advisory, or administrative functions. Accordingly, the Board, as well as committees thereof, must comply with the Open Meetings Law.

The Public Bid and Public Contracts Law requires public entities to advertise and let by contract to the lowest responsible bidder certain public works and purchases of material or supplies. R.S. 38:2211A(1) reads, in pertinent 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 . . ."

The Board of Commissioners of the City Park Improvement Association falls within this definition of public entity and as a public entity it is subject to the Public Bid and Public Contracts Law.

The Louisiana Code of Governmental Ethics, R.S. 42:1101 et.seq., is designed to protect against conflicts between the private interests of a public employee and his duties as such. It also establishes ethical standards with respect to the conduct of public employees. R.S. 42:1102(18) defines the term "public employee", thusly by:

(18) "Public employee" means anyone, whether compensated or not, who is:

(a) An administrative officer or official of a governmental entity who is not filling an elective office.

(b) Appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the governmental entity or an agency thereof, either as a member of an agency, or as an employee thereof.

(c) engaged in the performance of a governmental function.

(d) Under the supervision or authority of an elected official or another employee of the governmental entity.

This definition unquestionably encompasses those comprising the Board of Commissioners of the New Orleans City Park Improvement Association. The Board as well as other employees of the Association must therefore abide by the provisions of the Code of Governmental Ethics.

The Legislative auditor is empowered to examine and audit the books and accounts of all public boards and commissions, or any agency of the state or any public official or employee. R.S. 24:513A. As the New Orleans City Park Improvement Association is an agency of the state, its books and accounts and those of its Board may be examined and audited by the Legislative auditor.

Pursuant to § 7 of Act No. 130 of the 1896 Regular Session of the Legislature, the New Orleans City Park Improvement Association is required to make to the City Council of New Orleans an annual report of the amount of funds received and how and where such funds have been expended or disbursed.

This statute mandates a biennial report of the same character to the Legislature. Section 7 of Act No. 130 of 1896 has never been repealed or amended. It is therefore the opinion of this office that its provisions still have full force and effect.

I trust that this opinion satisfies your request and if this office can ever be of assistance to you in the future, please do not hesitate to contact me.

Sincerely yours,

WILLIAM J. GUSTE, JR. ATTORNEY GENERAL

WJG, Jr./RCD/jh