STATE OF LOUISIANA DIVISION OF ADMINISTRATIVE LAW ETHICS ADJUDICATORY BOARD

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1 STATE OF LOUISIANA DIVISION OF ADMINISTRATIVE LAW ETHICS ADJUDICATORY BOARD BOARD OF ETHICS * DOCKET NO ETHICS-A * IN THE MATTER OF * * JENNIFER SNEED * AGENCY TRACKING NO ****************************************************************************** ORDER DENYING EXCEPTION OF PRESCRIPTION This matter came before the Ethics Adjudicatory Board (EAB) on Jennifer Sneed s exception of prescription and her exceptions of no cause of action and lack of subject matter jurisdiction. Both parties agreed to preserve the exceptions of no cause of action and lack of subject matter jurisdiction, but not pursue them before the EAB. The exception of prescription is denied. APPEARANCES A public hearing of the exception of prescription was conducted before EAB Panel A on September 28, 2012, in Baton Rouge. Pauline F. Hardin, Virginia Gundlach, and Kim Robertson appeared as counsel for Jennifer Sneed. Tracy Barker and Kathleen Allen appeared as counsel for the Board of Ethics (BOE). STATEMENT OF THE CASE On March 18, 2011, the BOE voted to refer Ms. Sneed to investigation for failure to file her 2008 Tier 2 annual personal financial disclosure statement (the Statement). On September 15, 2011, the BOE voted to and issued a charge against Ms. Sneed for her failure to file the Statement. The charge was transmitted to the EAB on October 28, 2011, with a request that the EAB conduct the public hearing on the charge.

2 On May 25, 2012, Ms. Sneed, through her counsel of record, Pauline F. Hardin, filed exceptions of prescription, no cause of action and lack of subject matter jurisdiction. The latter two exceptions are based on constitutional issues relating to the application of La. R.S. 42: Both parties agreed that the EAB lacks the power to hold statutory provisions unconstitutional and agreed to preserve the exceptions of no cause of action and lack of subject matter jurisdiction, but not pursue them before the EAB. 1 A hearing on Ms. Sneed s exceptions began July 13, During the hearing, the BOE stated that it had documentary evidence probative of the facts underlying its arguments. The BOE had not provided Ms. Sneed with a copy of the documents prior to the July 13, 2012, hearing. The hearing was recessed to allow Ms. Sneed the opportunity to review the documents. By Minute Entry and Order dated July 16, 2012, the BOE was ordered to provide all related documents pertaining to its discovery of the occurrence giving rise to the charge filed against Ms. Sneed by August 17, 2012, a briefing schedule was established and the hearing was set to resume September 28, The hearing on Ms. Sneed s exceptions was reconvened on September 28, This adjudication is conducted in accordance with the Division of Administrative Law Act, La. R.S. 49:991, et seq., the Administrative Procedure Act, La. R.S. 49:950, et seq., and the Code of Governmental Ethics La. R.S. 42:1101, et seq. FINDINGS OF FACT Jennifer Sneed resigned from her elected position on the Jefferson Parish Council in August She was required to file a 2008 Tier 2 annual personal financial disclosure 1 Albe v. Louisiana Workers' Compensation Corp., , (La. 10/21/97), 700 So.2d 824 and Midboe v. Commission on Ethics for Public Employees, (La. 11/30/94) 646 So.2d

3 statement by May 15, The BOE staff discovered Ms. Sneed s failure to file the Statement on February 19, Ms. Sneed has not yet filed the Statement. Robin Gremillion has been employed as the director of the Ethics Disclosure Division for the BOE since February Upon review of the files of the BOE, she determined that a member of the staff of the Ethics Disclosure Division, L. Thompson, who is no longer employed with the BOE, discovered on February 19, 2010, that Ms. Sneed had failed to file her 2008 Tier 2 personal financial disclosure statement. The BOE record that Ms. Gremillion reviewed was a document entitled Comments for Filer, Jennifer Sneed, Failure to File Report: 2008 PFD: Annual for Councilmember, Jefferson Parish, District 5. That document was created February 19, 2010, contains a notation dated February 19, 2010, by L. Thompson, that the BOE received a candidate election record indicating failure to file, and it was initialed by Robin Gremillion. The BOE issued a notice of delinquency, received by Ms. Sneed on December 9, 2010, requiring that she file the Statement within 14 business days. Ms. Sneed informed the staff of the BOE that she did not intend to file the Statement. Then the BOE voted to consider the matter and referred it for investigation on March 18, On September 15, 2011, the BOE issued a formal charge against Ms. Sneed for failing to timely file the Statement. CONCLUSIONS OF LAW The charge against Ms. Sneed issued by the BOE on September 15, 2011, has not prescribed. Respondent s exception of prescription is denied because the BOE acted timely to enforce the violation. The BOE discovered the occurrence, within the meaning of La. R.S. 42:1163, of Ms. Sneed s alleged violation on February 19, 2010, and took action to enforce the provision, within the meaning of La. R.S. 42:1163, of the Code of Governmental Ethics (Ethics Code), on September 15, 2011, prior to the expiration of two years from the discovery of the 3

4 occurrence of the alleged violation and within one year from the date the BOE voted to consider the matter within the meaning of La. R.S. 42:1141. La. R.S. 42:1163 provides: No action to enforce any provision of this Chapter shall be commenced after the expiration of two years following the discovery of the occurrence of the alleged violation, or four years after the occurrence of the alleged violation, whichever period is shorter. La. R.S. 42:1141(C)(3)(c) provides: If the board does not issue charges within one year from the date upon which a sworn complaint is received or, if no sworn complaint was received, within one year from the date the board voted to consider the matter, the matter shall be dismissed. La. R.S. 42: provides, in pertinent part: A. Each of the following, except a person who is required to file a financial statement pursuant to R.S. 42:1124, shall annually file a financial statement as provided in this Section: *** (2) Each person holding a public office who represents a voting district having a population of five thousand or more persons. *** B. (1) The financial statement required by this Section shall be filed by May fifteenth of each year during which the person holds an office or position included in Subsection A of this Section and by May fifteenth of the year following the termination of the holding of such office or position. Ms. Sneed argues that the charge against her is prescribed because the BOE knew or should have known as of the date that her Statement was due, May 15, 2009, that she had not filed the Statement and that the two year prescriptive period provided by La. R.S. 42:1163, had therefore expired by the time the BOE filed formal charges against her on September 15, This argument is based on the doctrine of contra non valentem which provides that prescription does not run until a party should have known of facts giving rise to their action. 4

5 Case law cited by Ms. Sneed in support of the doctrine of contra non valentem is distinguishable from the discovery language in La R.S. 42:1163. Contra non valentem benefits lay persons in their capacity as claimants in personal injury and medical malpractice litigation through an extension of a prescriptive period. Contra non valentem does not however diminish the prescriptive period limiting the time the BOE has to take an action to enforce a violation. Ms. Sneed also argued that La. R.S. 42:1134 required the BOE to establish a computerized data management system. The establishment and maintenance of a computerized data management system by the BOE, in compliance with La. R.S. 42:1134, does not impart to the BOE constructive knowledge at all times of the filing compliance status of each person, now or formerly in office, who is required to file a report or statement with the BOE. The two-year prescriptive period contained in La. R.S. 42:1163 began running on February 19, 2010, upon the discovery of the occurrence of Ms. Sneed s failure to file the Statement by staff of the BOE. The standard set forth in the prescriptive statute, La. R.S. 42:1163, is actual knowledge and more specifically, discovery of the occurrence. The BOE established that its staff discovered the occurrence of Ms. Sneed s failure to file on February 19, The BOE s issuance of a formal charge against Ms. Sneed on September 15, 2011, is an action to enforce the Ethics Code and was taken within the two-year prescriptive period that began February 19, The BOE also complied with the provisions of La. R.S. 42:1141 by issuing the charge on September 15, 2011, within one year of the date of referral for investigation on March 18, Ms. Sneed s exception of prescription is denied. 2 Affidavit of Robin Gremillion dated August 16,

6 ORDER IT IS ORDERED that Jennifer Sneed s exception of prescription is DENIED. Rendered and signed October 9, 2012 in Baton Rouge, Louisiana. S John O. Kopynec Presiding Administrative Law Judge S Suzanne K. Sasser Administrative Law Judge L Louis Pauratore Administrative Law Judge NOTICE OF TRANSMISSION OF DECISION OR ORDER I certify that on, Wednesday, October 10, 2012 I have sent a copy of this decision/order to all parties of this matter. Clerk of Court Division of Administrative Law 6