THE USE OF PUBLIC FUNDS: OVERVIEW OF LA. CONST. ART. VII, SEC. 14

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1 THE USE OF PUBLIC FUNDS: OVERVIEW OF LA. CONST. ART. VII, SEC. 14 All questions concerning the use of public funds must be examined in light of La. Const. art. VII, 14, which provides as follows: A. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Except as otherwise provided in this Section, neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise. B. Nothing in this section shall prevent (1) the use of public funds for programs of social welfare for the aid and support of the needy; (2) contributions of public funds to pension and insurance programs for the benefit of public employees; (3) the pledge of public funds, credit, property, or things of value for public purposes with respect to the issuance of bonds or other evidences of indebtedness to meet public obligations as provided by law;. C. For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavor agreements with each other, with the United States or its agencies or with any public or private association, corporation or individual. This constitutional provision is well founded in our law. Similar provisions were found in the Louisiana Constitutions of 1845, 1879, 1898, 1913, and Thus, the concept of the state not being allowed to give away its assets is certainly not a new one. What has changed in the last six years, however, is the way La. Const. art. VII, Sec. 14(A) is interpreted by the Louisiana Supreme Court. In Board of Directors of the Industrial Development Board of the City of Gonzales, Louisiana, Inc. v. All Taxpayers, Property Owners, Citizens of the City of Gonzales, et al., (La. 9/6/06), 938 So.2d 11 (the Cabela s case), the Louisiana Supreme Court abandoned its prior analysis in City of Port Allen. v. Louisiana Mun. Risk Mgmt. Agency, Inc., 439 So.2d 399 (La. 1983) (holding that payments of public funds were prohibited whenever the state or a political subdivision sought to give up something of value when it was under no legal obligation to do so) and articulated a new standard of review governing La. Const. art. VII, 14(A). The Court concluded that La. Const. art. VII, 14(A) is violated when public funds or property are gratuitously alienated. Cabela s, 938 So.2d at 20. Cabela s involved the use of Tax Increment Financing to build a Cabela s retail outlet. Bonds were issued to pay for the construction of the retail outlet and related public

2 improvements and infrastructure. The bonds were secured by the pledge of incremental tax revenues by the State and the City of Gonzales. Several agreements were entered into by the parties to the project. Cabela s agreed to acquire land and build the retail outlet and related public improvements and infrastructure. Upon issuance of the bonds, Cabela s agreed to transfer the property and improvements to the Industrial Development Board of the City of Gonzales, Louisiana, Inc. The Board would then lease the property and facilities to Cabela's, and the lease would contain an option to purchase. Cabela's was to then manage the retail center. The agreements also called for additional development of adjacent property to attract complimentary retail and commercial ventures. A bond validation suit was filed seeking a judicial declaration of the validity and legality of the project, the project documents and the bonds. A response was filed asserting that the project amounted to an unconstitutional donation of public funds to a private entity in violation of La. Const. art. VII, Sec. 14. The Court concluded that the project was not a prohibited loan, pledge or donation of public funds. In its reasons the Court stated: The documents clearly reveal that both the State and the City have not entered into the obligations at issue gratuitously. Clearly, both parties expect to receive something of value in return for the performance of their obligations. As evidence of the non-gratuitous intent of the public parties, the Agreement contains a provision that states unequivocally: The City and State have determined that the Project serves a public purpose and that, based solely on financial projections and other information provided to it by the [District], the Annual Pledged Local Increment and the Annual Pledged State Increment pledged and dedicated hereby, collectively is less than the financial benefits to be received by each as a result of the Project. Additionally, the Agreement also contains a provision wherein the State's expectations are specified as follows: The State hereby acknowledges that there is a reasonable expectation that the Project will result in economic development within the State which will exceed the value of the obligations of the State contained herein thereby serving a public purpose. In the absence of any other evidence, these statements, standing alone, would be insufficient to allow us to conclude a non-gratuitous intent on the parts of the State and the City. Taken as parts of the Agreement and related documents as a whole, however, they provide insight into the intent of the parties, and reveal that neither the State nor the City intend to enter into a gratuitous contract with Cabela's and Carlisle. Cabela s, 938 So.2d at 24. The Court looked at the intent of the public entities to conclude that the alienation of funds was non-gratuitous. The public entities 2

3 demonstrated a non-gratuitous intent by showing that the project served a public purpose, that financial projections showed financial benefits to the entities exceeded the amount pledged, and that they had a reasonable expectation that the economic benefit from the project would exceed the obligations undertaken by the public entities. These factors alone were not enough to show a non-gratuitous intent on the part of the City and the State. However, when looking at these factors, along with the project and the related documents as a whole, the Court concluded that there was a non-gratuitous intent on behalf of the City or the State. In light of the Cabela s case, our office has adopted the following analysis to determine whether an expenditure or transfer of public funds is permissible under Art. VII, Sec. 14(A): the public entity must have the legal authority to make the expenditure and must show: (i) a public purpose for the expenditure or transfer that comports with the governmental purpose for which the public entity has legal authority to pursue; (ii) that the expenditure or transfer, taken as a whole, does not appear to be gratuitous; and (iii) that the public entity has a demonstrable, objective, and reasonable expectation of receiving at least equivalent value in exchange for the expenditure or transfer of public funds. The Cabela s standard places a strong emphasis on the reciprocal obligations between the parties to ensure that there is not a gratuitous donation of public funds. Subsection B of La. Const. art. VII, Sec. 14 sets forth twelve exceptions to the general prohibition against the donation of public funds. The most commonly addressed exceptions are the use of public funds for programs of social welfare for the aid and support of the needy (La. Const. art. VII, Sec. 14(B)(1)) and the use of public funds for pension and insurance programs which benefit public employees (La. Const. art. VII, Sec. 14(B)(2)). With respect to programs which aid and support the needy, or office has consistently opined that there must be objective criteria in place to establish that public funds are being spent on those who are truly needy. Subsection C of La. Const. art. VII, Sec. 14 authorizes the use of cooperative endeavor agreements. Paragraph (C) merely supplements the prohibition against gratuitous donations contained in Paragraph (A). It does not create an exception or exemption from the general constitutional norm. Regardless of whether the expenditure of public funds is made pursuant to a cooperative endeavor agreement or not, the political subdivision must be able to prove that the expenditure meets all three prongs of the Cabela s test. 3

4 The following are examples of some recent opinions issued by our office since the Cabela s case on issues relating to La. Const. art. VII, Sec. 14: Opinion : The Tensas Basin Levee District and Franklin Parish Police Jury may enter into a cooperative endeavor agreement, whereby the Levee District would contribute funds or monies to help in the construction of a boat ramp landing, with the sole ownership and management vested with the Police Jury. Recreational opportunities are authorized District and Police Jury activities and serve a public purpose. Opinion : Franklin Medical Center may award a small plaque of moderate cost as special recognition of an employee. However, providing lunch simply as a form of recognition, either in the hospital cafeteria or in the form of a gift certificate, amounts to a gratuitous donation prohibited by Louisiana Constitutional Article VII, Section 14. Franklin Medical Center may establish an Employee Incentive Program as long as the proposed award or salary increase is conditioned on the employee performing duties that are unusual, extraordinary, unexpected, or not required as a part of the normal duties of the employee. Opinion : The Gravity Drainage District No. 1 of the Parish of Livingston ( Drainage District ) may enter into a cooperative endeavor agreement with the Juban Crossing Community Development District ( Development District ) and the Parish of Livingston, whereby the Drainage District agrees to pledge the proceeds of its 0.5% sales and use tax within the Development District to secure bonds issued by the Development District to finance certain drainage improvements within the Development District. In accord with Cabela's, the expenditure, taken as a whole, does not appear to be gratuitous and the Drainage District has a reasonable expectation of receiving something of proportionate value in exchange for its pledge. Opinion : The St. Landry Parish Sheriff's Office may not transfer a portion of its share of slot machine proceeds to the Opelousas Police Department. While such expenditure qualifies as a public purpose and provides a public benefit the Sheriff's Office receives nothing in return for this expenditure or transfer. Opinion : Town employee, who is on 24-hour call, may use the town vehicle to travel to and from work without violating Art. VII, Sec. 14 of the Louisiana Constitution. 4

5 Opinion : The City of Hammond's proposed transfer of property for workforce housing does not appear to violate the provisions of the Louisiana Constitution Article VII, Section 14, provided the City of Hammond is able to show or demonstrate that it has a reasonable expectation of receiving equivalent value in exchange for the transfer. In addition to Louisiana Constitution Article VII, Section 14, the City of Hammond must comply with the sale, lease and exchange provisions of La. Rev. Stat. 33:4712. The project will meet a critical need for low-moderate housing and benefit the citizenry as a whole. Agreement is authorized and serves a public purpose and value received by transferee being responsible for all costs of construction. Opinion : In the event the Sheriff's office is able to effectively demonstrate that it has a reasonable expectation of receiving a benefit or value at least equivalent to the amount expended or transferred, the proposed expenditure of funds to help fund costs of consultant contract that will develop an economic development plan for the parish would be authorized. Opinion : There is no impediment to a Law Enforcement District entering into an intergovernmental agreement with the Department of Public Safety whereby the Law Enforcement District builds an office building and leases it to the Department of Public Safety and Corrections. Opinion : The Jefferson Davis Parish School Board and the City of Jennings may enter into an intergovernmental agreement splitting the total cost of building a sidewalk on city property which exceeds the amount of a federal grant. Opinion : The City of Tallulah may contribute funds to the Madison Parish Council on Aging for use in programs that provide services to the elderly such as transportation and recreational activities. Such a program would be authorized as one for the aid and support of the needy as long as there is some type of objective criteria, such as income level, used to establish those who are truly needy. Opinion : Using public funds to purchase and apply the required insecticides on all citrus trees throughout Plaquemines Parish to protect the citrus trees from the Asian Citrus Psyllid and greening is not a violation of La. Const. art. VII, Sec. 14(A) since such expenditure promotes and provides for the safety, health and general welfare of the people of the parish. Opinion : The sheriff or jailkeeper may engage in cooperative endeavor agreements with the Levee District whereby inmate laborers working on Levee District projects are provided with lunches paid for and provided by the Levee District. Levee District receives benefit or value in having its levees maintained and improved. 5

6 Opinion : School Board did not violate La. Const. art. VII, Sec. 14 when it directly pre-paid for a Board member to attend a job related conference notwithstanding the board member's inability to attend. School Board is not authorized to seek recovery of the unreimbursed and non-refundable portion of registration, air fare and hotel costs from the non-attending Board member. Opinion : West Feliciana Parish Police Jury and West Feliciana Parish School Board may enter into a cooperative endeavor agreement pursuant to La. Const. art. VII, Sec. 14(A) and (C) with a private entity for the purpose of providing public internet access to the private entity in exchange for providing the public entities with public service programming of equivalent value. Opinion : The City of Monroe may not use public funds to host strictly social gatherings for city employees notwithstanding purpose is to build camaraderie, morale and team spirit. Opinion : Although a political subdivision may pay a portion of the insurance premiums which would be paid on policies available to public employees to the employees per La. R.S. 33:5151, the available insurance contract or benefit must be in existence before the payments are authorized, and past payments that would have been paid by the employer may not be reimbursed or paid retroactively as this would violate La. Const. art. VII, Sec. 14(A). Opinion : The Civil Service Board of the St. Tammany Fire Protection District No. 4 cannot use public funds to pay for firefighters to receive a college degree notwithstanding requirement of decree for promotional opportunities. Decree is not part of training or education necessary for current job duties, performance or responsibilities. Opinion : The Bayou Cane Fire Protection District is not authorized to provide post-retirement medical benefits to a retiree when it is under no obligation to do so. Such payment would be a donation of public funds prohibited by La. Const. Art. VII, Sec 14(A). Opinion : The proposed cooperative endeavor agreement between the Plaquemines Parish Government and the Plaquemines Parish School Board to build a new public library is permissible under La. Const. art. VII, Sec. 14(A) and (C). School Board will contribute land and Parish will fund construction. Opinion : When a local public official has been the subject of a prosecution of criminal charges arising out of the performance of the official functions of his office, and the prosecution results in an acquittal or dismissal, the public official s legal fees may be paid or reimbursed from public funds, provided the legal fees and expenses are reasonable and necessary. (GALVAN) 6

7 Opinion : Ward 2 Recreation District in Livingston Parish may transfer funds to the Livingston Parish School Board to help construct new athletic facilities for Live Oak High School, which is also located in Ward 2, as long as it is able to effectively demonstrate that it has a reasonable expectation of receiving a benefit at least equivalent to the amount expended or transferred. Opinion : The proposed project for the Atchafalaya Basin Program and the Department of Natural Resources to dredge deep water avenues on private property in Lake Henderson to facilitate access to the Lake and the Basin during draw down period as a whole is a permissible use of public funds. Opinion : The clerk of court has the authority pursuant to La. R.S. 13:783(A) to fix and pay the salaries of employees in her office. However, it is a violation of La. Const. art. VII, Sec. 14 to pay an employee for past work performed outside of and in addition to the duties set forth in her job description and which is for more than she is owed (i.e., a bonus). Opinion : The Calcasieu Parish Public Library Board of Control may not use public funds to pay for an employee to attend class at a local university, without taking leave, as such an expenditure would amount to a prohibited donation under La. Const. art. VII, Sec. 14. Attending class at local university does not reasonable relate to existing public duties or responsibilities. Opinion : The proposed expenditure by the Calcasieu Parish School Board to reimburse costs of repairs to vehicles damaged by roof pieces blown off by a wind storm would be gratuitous and would amount to a prohibited donation of public funds, in the absence of any facts that indicate the School Board failed to meet any duty or standard of care owed to individuals who suffered damages. Opinion : Chief of police, who is on 24-hour call, may use Village-issued vehicle without violating La. Const. art. VII, Sec. 14, as long as any personal use of the vehicle is not so substantial as to exceed the public benefits of providing take-home emergency vehicles. Opinion : Under La. Const. art. VII, Sec. 14, the Amite River Basin Drainage and Water Conservation District may not refund valorem taxes paid by property owners who were erroneously placed on the District roles and which claims have prescribed. The District may only refund non-prescribed erroneously-paid taxes for which taxpayers make claims under La. R.S.47:2132. Opinion : The Mayor has the authority to expend public funds to promote, encourage, and develop industry, trade and commerce, which may include the Town hosting a music event, if the funding for the event does not exceed the amount allocated by the Board of Aldermen in the funds budgeted for the purpose of entertainment and attractions. 7

8 Opinion : The police jury may dispose of the ditch dirt using the procedures set forth in La. R.S. 33:4212(F) or La. R.S. 49:125 as long as it receives equivalent value for the dirt. If the police jury is able to adequately document that the dirt has no or negative value, then it may be disposed of without violating La. Const. art. VII, Sec. 14. Opinion : Voluntarily releasing the tenant from its lease due to today s business climate, thereby giving up $90, in revenue due to the Port, would violate La. Const. art. VII, Sec. 14. Opinion : La. Const. art. VII, Sec. 14 prohibits the payment of a bonus, or any other gratuitous unearned payment, to public employees. Payments of additional compensation to public employees, in order to be constitutionally valid, must be in the form of prospective salary increases. La. Const. art. VII, Sec. 14 prohibits supplemental salary payments made for purposes of retaining the employment of current public employees. Opinion : Proposed expenditure by Louisiana State Board of Architectural Examiners fails to meet the first prong of the Cabela's test requiring the legal authority to make a specific expenditure or transfer. The Board may not transfer surplus funds to an accredited Louisiana architectural school for the purchase of technology, software, and information systems related to health, safety, and welfare, nor can the Board transfer monies from its surplus funds to assist students in paying the Intern Development Program application fee. Opinion : The police jury and recreation district may enter into a cooperative endeavor agreement to construct a community center/recreation complex. The complex may be constructed on land owned by either entity. The police jury and recreation district may allow long or short term use of the building by another public entity so long as they receive a value or benefit that is commensurate with the use of the facility. R.S. 33:1324(5) provides the legal authority for political subdivision to cooperate to construct, acquire or improve recreation and educational facilities such as a playground, recreation center, parks and libraries. Opinion : The City of Tallulah may make a monetary contribution to a federally sponsored income tax preparation program which provides tax assistance to Tallulah's needy citizens provided some objective criteria is used to determine who actually qualifies as needy. Opinion : The Town of Addis may enter into a cooperative endeavor agreement with a non-profit organization to provide recreational opportunities to the children of the Town instead of the Town providing those services directly, as long as the Town is able to demonstrate that it will receive a benefit at least equal to the amount of funds expended. R.S. 33:4551 and/or 33:1324 provides legal authority for municipality to allocate public funds to provide recreational facilities to their residents. 8