STATE OF LOUISIANA DIVISION OF ADMINISTRATIVE LAW * * DOCKET NO. 2014-11977-ETHICS-B1 * IN THE MATTER OF * * DORIS HICKS, ET AL * AGENCY TRACKING NO. 2013-1258A ****************************************************************************** BOARD OF ETHICS ORDER DENYING RECONSIDRERATION REQUEST A hearing was held February 22, 2018. A decision was issued June 27, 2018. On July 9, 2018, Doris Hicks, et al (Petitioners) through their counsel, Mr. Willie M. Zanders, filed a Motion for Reconsideration. La. R.S. 49:959(A), provides: A decision or order in a case of adjudication shall be subject to rehearing, reopening, or reconsideration by the agency, within ten days from the date of its entry. The grounds for such action shall be either that: (1) The decision or order is clearly contrary to the law and the evidence; (2) The party has discovered since the hearing evidence important to the issues which he could not have with due diligence obtained before or during the hearing; (3) There is a showing that issues not previously considered ought to be examined in order to properly dispose of the matter, or; (4) There is other good ground for further consideration of the issues and the evidence in the public interest. Petitioners did not provide grounds to justify reconsideration. 1 Consolidated with 2014-11985-ETHICS-B, 2014-11988-ETHICS-B, and 2014-11989-ETHICS-B. 1 DARRIN COOK & IRIS PONSON I. Darrin Cook and Iris Ponson argue that the Ethics Adjudicatory Board’s (EAB) should reconsider the $2,500 penalty against each of them because it is clearly contrary to the law and evidence due to “extenuating circumstances surrounding their employment.”2 They argue that the $2,500 penalty should not be assessed against each of them because “both were innocent third parties who relied upon the Agency Head and Business Manager’s belief that it was “OK” to hire them as long as Dr. Hicks did not supervise them.”3 Darrin Cook and Iris Ponson advanced this argument in the public hearing on the merits, and the EAB found it unpersuasive. Doris Hicks and Judy Collins testified that an unknown individual at the BOE told Doris Hicks over the phone that it was permissible to hire her son-in-law, Darrin Cook, and her sister, Iris Ponson. No other evidence was submitted to substantiate that testimony. The EAB found the testimony to be self-serving and thus not credible evidence. The BOE proved that Darrin Cook and Iris Ponson violated the nepotism prohibition by clear and convincing evidence. Upon a determination that an individual has violated the nepotism prohibition, La. R.S. 42:1153 grants the EAB the authority to (1) censure or impose a fine of not more than ten thousand dollars, or both, on the individual, or (2) remove, suspend, or order a reduction in pay, or demotion, or impose a fine of not more than ten thousand dollars, or both. The BOE sought penalties in the amount of $10,000 against Darrin Cook and Iris Ponson, respectively, and removal from their employment as a result of their violation of the nepotism prohibition. The EAB’s decision to assess Darrin Cook and Iris Ponson a monetary penalty of $2,500 each was not clearly contrary to the law and the evidence and does not justify reconsideration. 2 3 Respondents’ Motion for Reconsideration, p. 3 Id. 2 II. Darrin Cook and Iris Ponson argue that the EAB should reconsider the penalty because good grounds for further consideration of the issues and the evidence in the public interest exist. They argue that “it is not in the public interest to punish public employees who believed in good faith that the state had approved their hiring, and they have already suffered public humiliation based on prolonged and ongoing media reports stemming from the nepotism charges.” 4 The Code of Governmental Ethics was established to ensure the public confidence in the integrity of government and to ensure that public office and employment are not used for private gain. 5 The Code of Governmental Ethics is not a criminal statute whose aim is the punishment of persons guilty of public wrongdoing; rather, its purpose is to prevent public officers and employees from becoming involved in conflicts of interest situations by prohibiting public servants from engaging in certain conduct.6 The Code of Governmental Ethics prohibits not only actual conflicts of interest, but also guards against the appearance of impropriety, and prevents situations which create the perception of conflicts of interest.7 The Louisiana Supreme Court has stated that the standards set forth in the Code of Governmental Ethics are objective rather than subjective, and the use of objective standards furthers the Code of Governmental Ethics’ purpose of protecting against both actual and perceived conflicts of interests. 8 These standards do not require that there be actual wrongdoing on the part of the public servant.9 The Code of Governmental Ethics prohibits nepotism. 4 Id. at pp. 4-5. La. R.S. 42:1101(B). 6 Villanueva v. Comm’n on Ethics for Pub. Emps, 98-0980 (La. App. 1 Cir. 5/18/99), 812 So. 2d 1. 7 Id. 8 Bankston v. Bd. of Ethics for Elected Officials, 98-0189 (La. 6/22/98), 715 So. 2d 1811, 1187. 9 Id. 5 3 Darrin Cook’s and Iris Ponson’s employment at Doris Hicks’s agency, at the very least, created the appearance of impropriety. Darrin Cook’s and Iris Ponson’s argument that good grounds for further consideration of the issues and the evidence in the public interest exist for the EAB to reconsider its decision to assess a penalty of $2,500 against each of them for violating the nepotism prohibition is without merit and does not justify reconsideration. DORIS HICKS I. Doris Hicks argues that the EAB’s decision that she violated the nepotism prohibition was contrary to the law and the evidence because the BOE did not refute her testimony that she obtained verbal approval from the BOE to hire Darin Cook and Iris Ponson. The EAB considered Doris Hicks’s testimony but found that her testimony that she spoke to an unknown individual on the telephone at the BOE who told her that it was permissible to hire her sister and son-in-law at her agency was not credible evidence. The BOE proved that Doris Hicks violated the nepotism prohibition by clear and convincing evidence. This argument does not show that the EAB’s decision that Doris Hicks violated the nepotism prohibition was clearly contrary to the law and the evidence and does not justify reconsideration. II. Doris Hicks argues that the EAB’s decision that she violated the nepotism statute was clearly contrary to the law and the evidence because she was hired on the same day as Darin Cook and Iris Ponson. Doris Hicks did not provide any legal authority that this is an exception to the nepotism prohibition. The stipulated facts state that all parties began employment on the same day; however, it is not evidence that shows that the EAB’s decision that Doris Hicks violated the 4 nepotism prohibition was clearly contrary to the law and the evidence and does not justify reconsideration. MONIQUE COOK I. Monique Cook argues that the EAB’s decision that she violated La. R.S. 42:1113(A) was clearly contrary to the law and evidence. Monique Cook makes the same argument that she did at the original hearing on the merits: Monique Cook contends that she did not violate La. R.S. 42:1113(A) because of an exception in La. R.S. 42:1113(D)(2)(a) that allows for contracts for employment in a professional educational capacity or for professional services for an elementary or secondary school or other educational institution. The EAB found that Monique Cook violated La. R.S. 42:1113(A) because she entered into a contract on August 4, 2012, with Friends of King School (FOKS), Inc. while her mother and immediate family member, Doris Hicks, was Chief Education Officer (CEO) of FOKS. La. R.S. 42:1113 delineates prohibited contractual arrangements with respect to four specific categories of individuals. The provisions of La. R.S. 42:1113 are separated into four subsections: A, B, C, and D, and each of the four subsections clearly identifies and limits the category of individuals over which the subsection applies. More importantly, each subsection sets out exceptions and other provisions that are applicable solely to the individuals who are subject to the terms of that particular subsection. Subsection A of La. R.S. 42:1113 prohibits a public servant, or the public servant’s immediate family member, from entering into a contract that is under the supervision or jurisdiction of the agency by which the public servant is employed. Subsection A applies to Doris Hicks, a public servant, and her immediate family member, Monique Cook. 5 Subsection B prohibits an appointed member of a board or commission, or the appointed member’s immediate family member, from entering into a contract that is under the supervision or jurisdiction of the agency for which the appointed member serves. Because Doris Hicks is not an appointed member of a board or commission of an agency with which her immediate family member, Monique Cook, has contracted, Subsection B does not apply. Subsection C prohibits a legislator, or a legislator’s immediate family member, from entering into a contract that involves the legislator’s agency. Because Doris Hicks is not a legislator of an agency with which her immediate family member, Monique Cook, has contracted, Subsection C does not apply. Subsection D prohibits a specific list of state officials, or the listed officials’ immediate family members, from entering into contracts with state government. Doris Hicks is not included in the list of state officials, nor does Monique Cook fall within the category as an immediate family member of one of the listed state officials. La. R.S. 42:1113(D)(2) and La. R.S. 42:1113 (D)(2)(a) specifically state that the provisions of Subsection D shall not prohibit the following: contracts for employment in a professional educational capacity in or for professional services for an elementary or secondary school or other educational institution. There is no provision in Subsection D (or any other part of La. R.S. 42:1113) that extends this exception to public servants identified under Subsection A. La. R.S. 42:1113(D)(2)(a) is not an exception to La. R.S. 42:1113(A). The BOE proved by clear and convincing evidence that Monique Cook violated La. R.S. 1113(A). Monique Cook’s argument that the EAB’s decision that her violation of La. R.S. 42:1113(A) was clearly contrary to the law and the evidence is without merit and does not justify reconsideration. 6 II. Monique Cook argues that the EAB’s decision to assess $8,921.25 in monetary penalties against her and that she must forfeit payments totaling $17,842.50 are too harsh based on a good faith reading of La. R.S. 42:1113(D)(2)(a) and her reliance on the EAB’s decision in Irvin.10 The BOE sought a penalty of $10,000 against Monique Cook pursuant to La. R.S. 42:1153, and a forfeiture of $28,863.63 pursuant to La. R.S. 42:1155. The EAB assessed a penalty of $8,921.25 against Monique Cook and ordered a $17,842.50 forfeiture of the payments she received as a result of her violation of La. R.S. 42:1113(A). The penalty and forfeiture ordered by the EAB totaled $26,764.25, which is substantially less than the $38,863.63 the BOE sought to assess. Monique Cook’s argument that the penalties assessed against her and the payments she was ordered to forfeit are too harsh does not provide good grounds for the EAB to reconsider its decision. III. Additionally, Monique Cook points out that the EAB did not address her argument regarding its Irvin decision. Monique Cook’s reliance on Irvin is misplaced. The facts of Irvin, in which charges were brought under La. R.S. 42:1113(A) against the wife of a public servant, are distinguishable from this case. The respondent in Irvin did not seek protection under the provisions of La. R.S. 42:1113(D). Although there may have been a quasi-contractual relationship between the Irvin respondent and the entity to which the public servant’s agency had an indirect relationship, the Irvin panel ruled that the quasi-contractual relationship was not of the type that was contemplated 10 In the Matter of Mary Irvin, 2008-10489 (Ethics Adjudicatory Bd. Mar. 11, 2009), available at: http://www.adminlaw.state.la.us/ethicsdecision/2008-10489-ETHICS-A%20Mary%20Irvin.pdf. 7 by La. R.S. 42:1113(A). In this case, it is undisputed that Monique Cook directly entered into a contract with FOKS, Inc., while her mother, Doris Hicks, was CEO of FOKS, Inc. Conclusion Petitioners failed to show that any requirements of La. R.S. 49:959(A) were met that would warrant reconsideration. ORDER IT IS ORDERED that Doris Hicks, et al’s Motion for Reconsideration is denied. Rendered and signed August 24, 2018, in Baton Rouge, Louisiana. S ________________________________ Sabra Matheny Administrative Law Judge J ________________________________ Janet Waguespack Administrative Law Judge P ________________________________ Patrick Moore Administrative Law Judge NOTICE OF TRANSMISSION OF DECISION OR ORDER I certify that on _____________________________, I have sent a copy of Friday, August 24, 2018 this decision/order to all parties of this matter. Clerk of Court Division of Administrative Law 8