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Regular Session, 2012
SENATE BILL NO. 615
BY SENATOR APPEL
LOCAL AGENCIES. Provides relative to the records and subpoena powers of certain local
ethics entities. (gov sig)
AN ACT1
To amend and reenact R.S. 33:9613(A)(2) and (B) through (G) and 9614(B) and (C), to2
enact R.S. 33:9613(H) through (I) and 9614(D), and to repeal R.S. 33:9613(A)(3),3
relative to local ethics entities, including but not limited to an ethics review board or4
office of inspector general in the parishes of East Baton Rouge, Jefferson, and5
Orleans; to provide relative to subpoena powers; to provide for protective orders; to6
provide relative to enforcement of subpoenas; to provide relative to the privileged7
nature of certain documents; to provide relative to public access to public8
documents; and to provide for related matters.9
Notice of intention to introduce this Act has been published.10
Be it enacted by the Legislature of Louisiana:11
Section 1. R.S. 33: 9613(A)(2) and (B) through (G) and 9614(B) and (C), are hereby12
amended and reenacted and R.S. 33:9613(H) through (I) and 9614(D) are hereby enacted to13
read as follows: 14
§9613. Investigative powers15
A.(1) * * *16
(2)(a) In the performance of its duties, a local ethics entity, ethics review17 SB NO. 615
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board, or office of the inspector general may administer oaths and take the testimony1
of those sworn or affirmations, subpoena witnesses, compel their attendance,2
examine them under oath or affirmation, and require the production of books,3
records, documents, or other evidence deemed relevant or material to the4
investigation or hearing. The subpoena may be served by certified mail, return5
receipt requested, at the addressee's residence or business address.6
(b) For the purposes of this Section, the term "subpoena" shall include7
a subpoena duces tecum.8
B. The entity receiving the subpoena may file a motion with the district9
court having civil jurisdiction in the parish where the local ethics entity, ethics10
review board, or office of the inspector general is located to amend or quash the11
subpoena. The motion must be filed any time before the date for attendance or12
compulsion specified in the subpoena or within twenty days after the subpoena13
has been served, whichever is earlier.14
C. If the subpoena is not quashed and is not complied with by the date15
for attendance or compulsion, the local ethics entity, ethics review board, or16
office of the inspector general may apply to the district court having civil17
jurisdiction in the parish where it is located for an order compelling compliance18
with the subpoena. Any person failing to comply with the order compelling19
compliance shall be adjudged in contempt of the court which issued the order.20
B D. Any costs and attorney's fees incurred by the local ethics entity, ethics21
review board, or office of inspector general may be taxed against the person who22
failed or refused to comply with the terms of the subpoena.23
C E. When the local ethics entity, ethics review board, or office of inspector24
general issuing the subpoena has reason to believe that a person may attempt to25
conceal or destroy materials essential to an investigation, examination, audit,26
inspection, or performance review, the local ethics entity, ethics review board, or27
office of inspector general may apply by verified petition to the district court of the28
parish in which the person resides or is found or has a principal place of business or29 SB NO. 615
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in which the materials may be found for an order protecting the materials from1
concealment or destruction. The court may order and fix the amount of a bond to be2
posted and conditioned upon compliance with the terms of the subpoena. The order3
shall be directed to the person upon whom the subpoena will be served and to any4
other person necessary to protect the materials from concealment or destruction.5
D F.(1) A local ethics entity, ethics review board, or office of inspector6
general shall have the authority to examine, review, audit, inspect, and investigate7
the records, books, reports, documents, papers, correspondence, accounts, audits,8
inspections, reviews, recommendations, plans, films, tapes, pictures, computer hard9
drives, software data, hardware data, e-mails, instant messages, text messages, and10
any other data and material relevant to any matter under audit, investigation,11
inspection, or performance review of all entities of the local governmental12
subdivision or entities receiving funds through or for the benefit of the local13
governmental subdivision.14
(2) For the purposes of this Section, these entities shall include but not be15
limited to every local governmental subdivision officer, employee, elected official,16
department, agency, board, commission, public benefit corporation, quasi public17
agency or body, contractor, subcontractor, licensee of the local governmental18
subdivision, and every applicant for certification of eligibility for a municipal19
contract or program.20
(3) These entities shall also include all local governmental subdivision21
governing authorities, all districts, boards, and commissions created by local22
governmental subdivision governing authorities either independently or in23
conjunction with other units of government, and all independently elected parish24
public officials whose offices receive funds from the municipality.25
E G. For the purposes of this Section, a quasi public agency or body shall be26
defined as:27
(1) An organization, either not-for-profit or for profit, that is a component28
unit of local government established to perform a public purpose, and created by the29 SB NO. 615
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state of Louisiana or any political subdivision or agency thereof or any special1
district or authority operating within the municipality.2
(2) An organization, either not-for-profit or for profit, that is a component3
unit of a local governmental subdivision reporting entity, as defined under generally4
accepted accounting principles.5
(3) An organization, either not-for-profit or for profit, created to perform a6
public purpose and having one or more of the following characteristics:7
(a) The governing body is elected by the general public.8
(b) A majority of the governing body is appointed by or authorized to be9
appointed by a governmental entity or individual governmental official as a part of10
their official duties.11
(c) The entity is the recipient of proceeds of an ad valorem tax or general12
sales tax levied specifically for its operations.13
(d) The entity is able to directly issue debt, the interest on which is exempt14
from federal taxation.15
(e) The entity can be dissolved unilaterally by a governmental entity and its16
net assets assumed without compensation by that governmental entity.17
(4) Any not-for-profit organization operating within the municipality which18
receives or expends in excess of twenty-five thousand dollars in local assistance in19
any fiscal year. Assistance includes grants, loans, awards, transfer of property, and20
direct appropriations of local public funds.21
(5) Any organization, either not-for-profit or for profit, operating within the22
local governmental subdivision which is subject to the open meetings law and23
derives a portion of its income from payments received from any local governmental24
subdivision agency or body.25
F H. Nothing in R.S. 42:61 et seq., shall be construed to prohibit local ethics26
entity attorneys, ethics review board attorneys, or office of inspector general27
attorneys from also holding the position of assistant United States attorney, assistant28
attorney general, or assistant district attorney when so designated for cooperative29 SB NO. 615
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efforts in criminal prosecutions and without additional compensation.1
G I. A local ethics entity, ethics review board, or office of inspector general2
may employ its own legal counsel. A local ethics entity or ethics review board may3
also employ, contract with, or accept the assistance of other legal counsel in the4
conduct of a civil or criminal case.5
§9614. Confidentiality of preliminary investigations certain records6
* * *7
B. Any material, records, data, and information compiled by an office of8
inspector general in an investigation, examination, audit, inspection, or performance9
review under this Chapter is confidential and privileged and not subject to R.S. 44:110
et seq., until the investigation, examination, audit, inspection, or performance review11
is complete. The investigation, examination, audit, inspection, or performance review12
is not deemed complete if the office of inspector general has submitted material,13
records, data, and information from or the results of such investigation, examination,14
audit, inspection, or performance review to any other law enforcement or regulatory15
agency for further investigation or for the filing of criminal or civil prosecution, and16
if such investigation or prosecution has not been completed or become inactive.17
C. Except for the completed reports, findings, advisories, letters, and18
recommendations of investigations, audits, inspections, performance reviews,19
qualitative assurance reviews, peer reviews, annual operating budgets, and annual20
office reports, the records prepared or obtained by the ethics entity, ethics review21
board, or office of inspector general shall be deemed confidential and privileged and22
protected from disclosure pursuant to R.S. 44:3. In order to maintain the23
confidentiality of such materials, the ethics entity, ethics review board, or office of24
inspector general may meet and make decisions in executive session. No privilege25
established by law shall be deemed waived on any record obtained by the ethics26
entity, ethics review board, or office of inspector general in connection with the27
performance of duties established by this Chapter. Any record or information28
obtained by the ethics entity, ethics review board, or office of inspector general29 SB NO. 615
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which is confidential or privileged pursuant to any other provision of law shall1
remain confidential or privileged, and it shall be a misdemeanor punishable by a2
fine of not more than two thousand dollars or imprisonment for not more than one3
year, or both, for the ethics entity, ethics review board, or office of inspector general4
or any designated staff member or any other public official, corporation, or5
individual to make public any such information or record.6
D. The provisions of this Section shall not prevent access during the7
course of an inspector general investigation to public records that are not8
otherwise privileged or confidential. The custodian of any public record shall9
provide such record to any person having the right to examine public records.10
If the only copy of such public record is in the hands of the inspector general,11
the custodian of that record shall so certify and the requestor may examine and12
copy the record at the office of the inspector general.13
* * *14
Section 2. R.S. 33:9613(A)(3) is hereby repealed.15
Section 3. This Act shall become effective upon signature by the governor or, if not16
signed by the governor, upon expiration of the time for bills to become law without signature17
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If18
vetoed by the governor and subsequently approved by the legislature, this Act shall become19
effective on the day following such approval.20
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Michael Bell.
DIGEST
Present law provides that in the performance of its duties, a local ethics entity, ethics review
board, or office of the inspector general may administer oaths and take the testimony of
those sworn.
Proposed law provides for a local ethics entity, ethics review board, or office of the inspector
general to administer oaths or affirmations, subpoena witnesses, compel their attendance,
examine them under oath or affirmation, and require the production of books, records,
documents, or other evidence deemed relevant or material to the investigation or hearing.
The subpoena may be served by certified mail, return receipt requested, at the addressee's
residence or business address.
Proposed law provides for the term subpoena to include a subpoena duces tecum. SB NO. 615
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Proposed law provides for the entity receiving the subpoena may file a motion with the
district court having civil jurisdiction in the parish where the local ethics entity, ethics
review board, or office of the inspector general is located to amend or quash the subpoena.
Furthermore, proposed law provides for the motion to be filed any time before the date for
attendance or compulsion specified in the subpoena or within 20 days after the subpoena has
been served, whichever is earlier.
Proposed law provides that if the subpoena is not quashed and is not complied with by the
date for attendance or compulsion, the local ethics entity, ethics review board, or office of
the inspector general may apply to the district court having civil jurisdiction in the parish
where it is located for an order compelling compliance with the subpoena. Furthermore,
proposed law provides for any person failing to comply with the order compelling
compliance shall be adjudged in contempt of the court which issued the order.
Present law provides that any material, records, data, and information compiled by an office
of inspector general in an investigation, examination, audit, inspection, or performance
review is confidential and not subject to a public records request until the investigation,
examination, audit, inspection, or performance review is complete.
Proposed law retains present law and adds that such records are also privileged and are not
subject to a public records request until the review is complete.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 33:9613(A)(2), (B) through (G) and 9614(B) and (C); enacts R.S. 33:9613(H)
through (I) and 9614(D); repeals R.S. 33:9613(A)(3))